The Miers nomination: a safe play from Dubya's standpoint who actually will bring needed "diversity" to the Court

Harriet Miers may be virtually unknown to you. But she isn't to Dubya — and that's the main point of her nomination.

With even a half-hour's worth of hindsight, I declare myself unsurprised that the President chose Ms. Miers. It's absolutely consistent with his appointment style for other positions going back to his days as governor of Texas: George W. Bush has consistently preferred those who are well known to him, of proven qualities and proven loyalty, over perhaps bolder or more popular choices with flashier résumés.

Those who think public opinion polls are crucially important to this and every other White House — I'm not among their number, as I think they're almost worthless and indeed pernicious and destructive of good governance because they put a premium on exactly the wrong things — will say that Dubya's "low numbers" caused him to deliberately refrain from picking one of the darlings of the Right. Far more intense opposition would have coalesced against a nominee like Fifth Circuit Judge Edith Jones, for example, even (and for essentially the same reasons) as such a nominee would have generated more applause from Dubya's "base." Many will view Ms. Miers as a "compromise choice" — an attempt to bunt for a single rather than to swing for the fences, a safe play dictated by circumstances.

I think Ms. Miers' nomination is, comparatively, a safe play, but I don't think it's the product of Dubya's standing in recent, or any, public opinion polls. I think it's mostly a product of two factors. The first factor — the one that became logically precedent to, albeit not more important than, the other key factor — was the unique-to-this-slot "need" to pick another woman to follow Sandra Day O'Connor. The first attribute used to narrow the field was thus whether a potential nominee had a Y chromosome, although being first didn't make an XX pair the most important criterion. No, the second and ultimately determinative factor can be completely summarized in three words: "No more Souters."

To you, me, the Senate, and the public, Harriet Miers may seem as much of a blank slate as David Souter was when Bush-41 nominated him. "Another 'stealth' candidate," many will say, "another blank slate about whom we know too little to make confident predictions!" That's already the official party line of the Dems, and it's something being muttered less loudly among puzzled Republicans as well.

But that is emphatically not the case from the perspective of George W. Bush. And the Constitution does, after all, give him the nomination power — not "the White House," not "the Republican Party," nor "conservatives generally," nor even "us'n who put him back into office." And he knows, and he's always known, that the blame for an appointee who turned out to become "another Souter" would likewise be placed on him. It's a responsibility and an opportunity whose benefits and risks he sought, but that he obviously takes very seriously indeed, because from Dubya's perspective, Harriet Miers was the one prospective female nominee about whom he personally felt that he could be most certain in predicting what sort of Justice she will become.

One of the points I made on the same day that John Roberts was originally nominated for this same seat was that his past long service to two Republican administrations — mostly in the role of private counselor rather than public advocate, aside from his actual Supreme Court arguments as Deputy Solicitor General — was absolutely crucial to his selection. The same is true of Harriet Miers, only moreso. When Dubya looks at her, he doesn't think "blank slate, might be a Souter." He thinks: "I know her, she's been my lawyer through thick and thin, and I know things about her judgment and character that nobody else knows about her, but that leave me entirely comfortable about how she'll turn out as a Justice."

As we read more and more of John Roberts' memoranda from his days in the White House counsel's office of the Reagan Administration, many conservatives became increasingly comfortable with his nomination based on the consistency of his approach as a private counselor on issues of huge public importance; in picking Judge Roberts, Dubya had the benefit of that paper trail (and his SG paper trail that we mostly still haven't seen), but he also had the second-hand benefit of first-hand appraisals from many trusted individuals who'd worked with him over his career. For Ms. Miers and Dubya, though, the appraisal is entirely first-hand, and he saw the paper trail as it was generated — in response to his own assignments — in the first place.

We're likely to see another stretch of bitching and moaning from the Democrats on the Judiciary Committee over how essential it is for the Administration to waive attorney-client, work product, and executive privileges and fork over every document that says at its top "To: George W. Bush, From: Harriet E. Miers." Expect the White House to hang very tough on this.

Conservative skeptics, I remind you that even though you haven't seen this stuff, Dubya has, so let your comfort level be in inverse proportion to the sounds of frustration and gnashing of teeth from the liberals. Sen. Brownback, your demand for guarantees as to how this nominee will vote on your key issues is like a fan in the stands insisting that the quarterback's play calling in the huddle be broadcast all over the stadium; whether you approve of the call or not, your team's odds go into the toilet when there's a microphone in the huddle.

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About qualifications other than having Dubya's confidence: I heard an NPR reporter (not Nina Totenburg, but someone else) crack wise this morning about how the Dems would be looking at "Harriet Miers' qualifications, or more precisely, the lack thereof." That's more than simply ridiculous. That's elitist, condescending, and stupid.

I'm entirely unpersuaded that the Court needed another female Justice just to maintain its "diversity." But I'm actually quite pleased at other sorts of diversity that Harriet Miers will bring to the Court. For one thing, she's been a practicing lawyer in a high-level but real-world practice for most of her career. And her practice has been 1000 times more "nuts and bolts" than the extremely esoteric and rare appellate practice that Chief Justice Roberts had, for example.

I expect that some of the loudest critics of this nomination will be law professors and "public interest group" lawyers. [Edit: But see this very good post from UCLA Law Prof. Eugene Volokh, who I think has done a better job than his fellow VC bloggers so far in maintaining a historical perspective and thinking outside the snotty law professor/academic box. — Beldar] Well, I'm sorry, but we've already got plenty of representation from those segments of the bar on the Supreme Court's bench. We don't have anyone on the bench now, though, who's had to worry much about recruiting, administering, refereeing, and making payroll for a major law firm while still actually working for ordinary paying clients who have typically real-world legal problems.

Moreover, being not just a partner, but the co-managing partner responsible for running a law firm of 400+ lawyers requires a rare and nontrivial skill set. I can confirm to you from personal knowledge that her firm — formerly Dallas-based Locke Purnell Rain Harrell, now Locke Liddell & Sapp after much internal growth and a merger with a prestigious Houston-based firm — is indeed a major player among Texas megafirms. That background and those skills are every bit as valuable to the Supreme Court as, say, Justice Ginsburg's past service as general counsel for the ACLU. And a track record of having been the president of the Dallas Bar Association and the State Bar of Texas, and having been counsel for the Governor of Texas and the President of the United States, is altogether as impressive, and indeed to my mind considerably more impressive, than a few years' service on an intermediate Arizona appellate court — which is what Justice O'Connor was doing when she was nominated. What the hard Left will paint as "corporate toadyism" most of America recognizes as facilitating commerce and economic growth.

By objective standards, Harriet Miers has been among the few dozen most successful lawyers in private practice in the United States. Filter the Y-chromosome bearers out of that group and you're down to a couple dozen or less. Filter that group for significant public and governmental experience and we're down to a very small handful. And filter that small handful for lawyers in whom George W. Bush already has boundless personal confidence from first-hand experience, and your Venn diagram just has a one-member set left: Harriet Miers. Those are not inappropriate criteria, folks. From an overall viewpoint, using any reasonable criteria, she's qualified enough. But using those particular criteria, she's uniquely qualified.

Would I have picked her? Probably not. But she hasn't been my lawyer, and I'm not the President. If I were the President, and I wanted to make a safe play — a non-Souteresque woman — I might very well have picked someone like her, though. And so I will happily support this nomination, and I wish Ms. Miers good luck, fortitude, and grace in the confirmation process.