Many of the Harriet Miers critics sniff at her ABA credentials –president of both the Dallas and then the Texas Bar Association. The second group of sniffers argue that SMU isn’t much of a law school, by which they mean that it isn’t a law school in the league with say Harvard, Michigan, Chicago or Stanford. And they don’t much like the fact that Ms. Miers isn’t a writer of law review articles.
If I can try and locate the real source of conservative unease with the Miers pick, it comes down to three things.
First, Miers isn’t Luttig or McConnell. As I have written before, I would have preferred either of these judges, but the fact that Miers isn’t my favorite doesn’t mean she isn’t qualified or that she won’t prove to be a superb justice. When Clarence Thomas was nominated, many attacked him as clearly not the best nominee available, the same argument now levelled against Miers. Justice Thomas has proven to be an excellent justice, and one especially committed to open-ended consideration of the actual Constitution as opposed to the Constitution constrained by absurd constructions of the most recent years.
Then there are two areas of constitutional blunder where the Bush White House tripped up with conservative legal scholars and pundits: the use of race in university admissions, and campaign finance law.
The Miers parallel with Lewis Powell –especially on the ABA matters– doesn’t comfort conservatives, because Powell got Bakke wrong, and the Bush White House got the University of Michigan cases wrong, and Justice O’Connor got the University of Michigan cases wrong. Expect the GOP senators to focus on this area during the hearings, but without any sort of closure. It will be a while before a race-based admissions case ripens, perhaps after another justice has retired, and the O’Connor count-down clock to a color-blind society will have ticked on to the point where perhaps a clear and final embrace of Justice Harlan’s dissent in Plessy will be possible.
Then there is McCain-Feingold, and the Supreme Court’s deference to the bizarre set of rules and restraints on speech that led to Soros being the most important man in American politics on the left, but restraints on television ads blasting incumbents by name in the closing days of an election. How the Court upheld these and other provisions in the face of near unity among legal scholars left and right is still a mystery, but conservatives rightly point to the president’s signature on the bill. (They could just as rightly point to the “guarantees” of certain provisions unconstitutional status, but that’s another debate.) Miers wasn’t White House Counsel when the president signed this awful bit of law, but she’s tainted by it. On the other hand, she has first-hand experience of the deep poison McCain-Feingold is spreading in American politics, an excellent perspective to bring to the court.
There, that’s the responsible critique of Miers –because the Bush Adminsitration has fumbled two big carries, some conservatives are reluctant to see one of their own rise to the SCOTUS. Legitimate concerns about two types of isses, though, is not a warrant to blast away at a nominee’s qualifications. Folks shouting cronyism or issuing blanket condemnation of Bar Association work, lack of Federalist Society credentials, lack of spine in the face of DC/NYC pressure etc etc should abandon the personal attacks and focus on the substance of their concerns, which will focus the hearings, and the process for future selections of justices.
BTW: There are scores of appellate nominees coming in the next few years. Does the conservative chorus of critics mean to imply a Federalist Society litmus test, a ban on ABA work, diminishment of success in private practice, and irrelevance of character as the approach to filling those slots?
One more note: John McCain, author of the above referenced train wreck, attempted to intervene in the special election for California’s 48th Congressional District, throwing his endorsement behind pro-choice Marilyn Brewer.
Brewer rolled up 16.7% of the vote, on the way to a pounding by conservative John Campbell, who received 46% of the vote. Campbell’s thumping win was just short of the 50% plus 1 he needed to avoid the next nine weeks of campaigning in a run-off he will surely win, but one which will keep him from voting on the bills of October and November, including spending and energy measures.
Senator McCain has once again put his own interests above those of the party, achieved nothing except assistance to Democrats in Congress, and hindered the clear majority will of his party. When he begins his campaign for the presidency in 2007, keep in mind that he’s as committed to pro-life positions as the last candidate he supported in a key race, and that his presidency would surely mark the collapse of the structural gains brought about by the disciplined approach to elections practiced by W.