« I see the image, and I immediately hear again its soft hum and imagine it vibrating under my eager flashing fingertips | Main | Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed »

Monday, September 03, 2007

More retrospective from Greenburg (and Beldar) on the Miers nomination

In further debunking the silly report that then-Chief Justice nominee John Roberts had "suggested" Harriet Miers for the SCOTUS slot being vacated by Justice O'Connor, Jan Crawford Greenburg describes the Miers nomination as

a decision that badly hurt the President with his conservative base, allowed Democrats to unfairly portray Sam Alito as somehow beholden to those interests and, perhaps worst of all, made a laughingstock out of a smart woman who — but for the nomination — would be seen today as an accomplished lawyer who’d served her country with dignity.

"How could Bush have done so well in choosing Roberts and Alito and so many of his circuit and district court nominees," conservatives are still asking, "and yet have nominated Harriet Miers?"

Greenburg is confident that during the research on her book "Supreme Conflict," which I reviewed a length earlier this summer, she had found the true explanation for how the Miers nomination came about. Besides his general interest in naming another woman to the Court,

George Bush believed — because his advisers had told him so — that Miers was qualified for the Court. Just as importantly, he also believed — because he knew her — that Miers would not drift to the left like David Souter did. It’s impossible to overstate how much the last consideration drove Bush: His dad did not know Souter and relied on his closest advisers to vouch for the reclusive New Hampshire judge’s conservative views. But George H.W. Bush’s advisers — chief of staff John Sununu, primarily — had no idea what they were talking about, and Souter soon was showing himself to be almost as liberal as the justice he replaced, William Brennan. Bush was determined not to repeat what conservatives considered to be his father’s greatest blunder.

This is almost exactly what I wrote on the morning the nomination was announced, before the conservative hurricane against Miers had coalesced (emphasis in original):

I think Ms. Miers' nomination is ... 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.

Further on the subject of Miers' qualifications, Greenburg writes:

Bush had said he wanted to nominate someone outside the "judicial monastery," and certainly the Court could use an experienced lawyer who would bring a real-world perspective. But Harriet Miers was not that person. Her experience dealing with complex commercial litigation was embarrassingly inadequate — as the lawyers in the White House painfully realized when she filled out her Senate questionnaire and was asked to list the top cases she’d handled.

And that's a fair assessment too, as far as it goes. But this passage ignores Miers' total package of credentials — ones which, in fairness to Greenburg, she did take the time to discuss in her book, but that many of Miers' critics then and now have ignored or trivialized.

Miers' record as a top-flight trial lawyer, or even as a "litigator" (who'd handled big cases without necessarily seeing them through to trial) was good. But it was indeed thin for the number of years she'd been in practice. The explanation for that, though, was not that Miers was an all-around light-weight. Rather, she'd also been doing other things outside the courtrooms that a president could reasonably conclude would add valuable perspectives in a SCOTUS nominee: serving the legal profession through local and state bar organizations (including president of the Texas Bar); leading a prosperous and successful major law firm, including through a risky but successful merger, in times of unprecedented change and competition; and serving behind the scenes as a senior legal adviser to the governor of a large state and then to a war-time POTUS.

David Boies, famous among other reasons as Al Gore's lead lawyer in 2000, is the only practicing courtroom lawyer with a national reputation outside legal circles. But beneath the general public's radar screens, of course, there are conservative analogs (e.g., Phillip Beck) who would be equally as well qualified for a seat on the Supreme Court. And Miers indeed wasn't one of those. Not even Dubya thought she was, which is why she wasn't one of the first-team courtroom lawyers standing opposite David Boies in court during the most important aspects of the Bush v. Gore litigation in 2000. She did, however, advise Bush then behind the scenes, and she handled a less famous 2000 election challenge in Texas based on the Twelfth Amendment. More to the point, though, neither those conservative courtroom veterans nor, for that matter, David Boies also had the other non-courtroom credentials for a SCOTUS seat that she had.

The Miers nomination was, in hindsight, a political disaster. But I continue to maintain that's not because of stupidity, nor because of incomprehensible or flawed logic, on the part of George W. Bush in making it. Nor was it at all a case of Bush breaking faith with the voters who'd elected him in part on his assurance that there would be "no more Souters." And the value of Greenburg's current blog post, in addition to confirming Chief Justice Roberts' non-participation in the Miers nomination, is to provide a reminder of both of these points, especially the second one. Conservatives refused to see it, and the White House proved itself utterly, ridiculously, tragically inept in explaining it at the time, but Dubya, from his point of view, was keeping faith.

Miers would have been confirmed without controversy had she been (a) male, (b) less of a crony (read: less of a known quantity) to a  POTUS who is radioactive outside his party and still distrusted by "elite" elements within it, and (c) nominated at any time in our nation's history other than the last 30 years. Based on long, close personal experience with her, Dubya is still confident that she wouldn't have "drifted left." But in every other respect, she'd have been essentially indistinguishable from a nomination like Lewis F. Powell, Jr.'s, whose credentials resembled hers and were, if anything, slightly inferior to hers.

Posted by Beldar at 08:43 PM in Law (2007), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to More retrospective from Greenburg (and Beldar) on the Miers nomination and sent a trackback ping are listed here:


The comments to this entry are closed.