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Appointing a person with no judicial experience whatsoever to the Supreme Court is by no means an unprecedented act. Indeed, some of the most influential Justices ever to serve never wore the robe before assuming that high seat. Earl Warren, Warren Burger, and William Rehnquist were not judges before their appointments, and all three carved a wide, deep swath across our legal landscape during their time.
Leave aside, for the purposes of this exercise, all the noise from the Bush cam assuring his base that Judicial nominee Harriet Miers is a stalwart evangelical Christian. Flipping the God card has, morosely, become an expected tack in modern American politics. As James Carroll said in a recent Boston Globe editorial, “With Harriet Miers, we see that God lives in the politics of the US Supreme Court nomination process. In a culture defined by the separation of church and state, President Bush and his allies have mastered the use of religious affirmation as a deflection not only of criticism, but of critical thought. God is thus a trump card, a free pass. If the president, senators, and members of Congress can justify their decisions by appeals to God, why not judges?”
No, the question here isn’t what Miers thinks about God, Jesus, the saints, the martyrs, or even abortion, gay rights and the rights of corporations to buy politicians by the long ton via campaign contributions. Such considerations put the cart before this particular horse. Before we nail down what she thinks about this subject or that, we must first try to figure out if she thinks at all.
At first blush, it doesn’t look good. To be sure, she has excelled in her professional life. For 27 years she worked as an attorney in private practice, mostly handling business-oriented cases. She served as the first female president of the Dallas Bar Association and the State Bar of Texas. She has served, most importantly, as Bush’s personal attorney, and became White House Counsel after Alberto Gonzales. This is a resume to be proud of for any attorney in America.
Three problems, however, present themselves. The first has to do with her ability to serve effectively as a Justice. Those three Justices who never served on the bench before their appointment – Warren, Burger and Rehnquist – worked as District Attorneys, Attorneys General, Governors; in short, they were exposed in their legal practice to a wide variety of criminal, civil and constitutional issues. This gave them solid experience and intellectual background for the kinds of cases they would see from the high court. Miers, by comparison, has primarily dealt with business cases. When criminal cases and, more vitally, constitutional cases come before her review, she will have no experience beyond some law school classes to base her decisions on.
The second problem also has to do with her experiences in the White House, but more specifically, has to do with the reports of her performance during that time. Jeffrey Rosen, writing for the New Republic, reported, “Last year, in an insightful profile of Miers in Legal Times, T.R. Goldman quoted Miers' White House colleagues, who suggested that, when she was deputy chief of staff for policy under Andrew Card, her obsessive focus on details and process made it hard for her to see the forest for the trees or to engage the large policy questions. ‘She failed in Card's office for two reasons,’ a former White House official told Goldman. ‘First, because she can't make a decision, and second, because she can't delegate, she can't let anything go.’”
Conservative columnist Charles Krauthammer wrote, “If Harriet Miers were not a crony of the President of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her.” Conservative columnist George Will buttressed this observation by stating, “There is no reason to believe that Miers' nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers' name probably would not have appeared in any of the 10,000 places on those lists.”
Here, apparently, we have a Supreme Court nominee who cannot handle details, fails when engaging broad issues, and cannot make a decision. Here we have a Supreme Court nominee whose intellectual mediocrity inspires tooth-grinding vitriol from conservatives who have made anti-intellectualism their bread and mead. Taken on the whole, what we have here is not a pretty picture.
The third problem, simply, is the fact that she served time as Bush’s personal lawyer and as White House Counsel. John C. Wohlstetter, Senior Fellow at the Discovery Institute, explains the problem: “President Bush's choice of White House counsel Harriet Miers has prompted much criticism, but his friends miss perhaps the biggest problem with the nomination: the likelihood that if confirmed the new Justice, because of her White House work, will recuse herself in major cases where her vote could prove decisive -- notably, war cases. The White House can claim executive privilege and refuse the Senate Miers's memos written as White House counsel. While executive privilege can be breached in extraordinary circumstances such as a criminal investigation (e.g., Watergate), a routine confirmation hearing fails to surmount that hurdle”
Think about it. Any number of cases could come before the Supreme Court in the next few years which reach into the White House. Imagine a Supreme Court with Miers on it hearing cases pertaining to the Fitzgerald investigation of the outing of CIA agent Valerie Plame, or hearing cases pertaining to the treatment of prisoners in Abu Ghraib and Guantanamo. It isn’t that she would vote wrong, but that she wouldn’t vote at all. Miers would be forced to recuse herself, taking any papers and evidence and discussions from the White House pertaining to the case at hand off the evidence table. Her very presence would severely disrupt the legal process.
Come to think of it, that may be the main reason (beyond the guaranteed vote she represents on any case Bush has taken an interest in) why the White House picked her in the first place.
The third problem, that of her automatic recusal from any cases dealing even peripherally with the Bush administration, is a permanent flaw with no solution other than her defeat before the Senate or her own voluntary withdrawal. The first two – her lack of broad legal experience and her apparent inability to consider issues with depth and precision – can either be established as fact or laid to rest with a few straightforward questions.
The first question is called The Antelope, also known as 23 U.S. (19 Wheat.) 66, and was a Supreme Court Case in 1825. The Antelope was a foreign vessel captured on the high seas by an American revenue cutter for suspect violation of the United States slave trade acts. The issue at hand is whether or not the United States could legally seize a foreign ship on the high seas that is engaged in slave trading, and whether or not such seizure allows for the freeing of those slaves by virtue of American laws against the slave trade. The concise rule of law when the case was heard read, “The United States cannot seize a foreign vessel engaged in the slave trade while it is on the high seas and apply American statutes to forfeit slaves owned by foreign nationals.”
As a matter of constitutional law, was it legal for the Antelope to be seized on the high seas? Was it legal for the slaves aboard to be freed subsequent to that seizure and according to American law?
The second question pertains to the Slaughter-House Cases, also known as 83 U.S. (16 Wall.) 36, decided by the Supreme Court in 1873. Several Louisiana butchers challenged as unconstitutional the Louisiana legislature’s granting of a 25-year monopoly to one slaughterhouse for the New Orleans area. The issue at hand is whether or not the Thirteen and Fourteenth Amendments prohibit the states from infringing on the privileges and immunities of state citizenship. The concise rule of law read, “The various provisions of the Thirteenth and Fourteenth Amendments prohibit the state from infringing on the privileges and immunities of national, not state, citizenship.”
As a matter of constitutional law, was it legal for the Louisiana legislature to grant this monopoly? Were the Thirteenth and Fourteenth Amendment rights of the butchers violated by the legislature?
The third question pertains to Marsh v. Alabama, also known as 326 U.S. 501, decided by the Supreme Court in 1946. Ms. Marsh, a Jehovah’s Witness, attempted to distribute religious literature in a company-owned town in Alabama. She was criminally convicted for handing out such literature without a permit Though privately owned, the town’s business district was open to the public, and public highways ran through it. The issue is whether or not First Amendment rights can be curtailed on private property that has taken on the public character of a business block. The concise rule of law read, “When private property is the equivalent of a public ‘business block,’ it ceases to be strictly private and First Amendment rights may not be arbitrarily curtailed.”
As a matter of constitutional law, may First Amendment rights be curtailed on private property that has taken on the public character of a business block?
If. Harriet Miers can take the time to answer these basic questions of constitutional law, providing her own analysis of the legal minutiae at hand, and without cheating by looking up the cases herself, she will take a large step towards establishing whether or not she has the chops to sit on that bench.
For the record, the majority in 1825 said ‘no’ on the Antelope question. The majority said ‘no’ in 1873 on the Slaughter-House question. The majority said ‘no’ in 1946 on the Marsh question. Extra credit will be granted Ms. Miers if she can explain why the Justices ruled as they did on these matters. Again, no cheating.
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