Talkin' 'Em Off the Ledge: Miers Nominated

It's Miers!?

My first reaction was surprise. When W picked Roberts, I saw that as a possibility as his name was on many lists though never on the top line. In comparison, Miers was mentioned rarely in lists of supreme speculations.

After hearing the news, went to talk-radio to get immediate reaction of political news junkies. Here in Southern California, that would be the Laura Ingraham show on KRLA 870AM.

The callers were unhappy. They felt there were other choices with a more clear cut history of conservative judicial thought. Laura largely agreed but was willing to wait for a little more information on Miers to come out but she was concerned and disappointed given the higher profile of some of the other nominees.

I visited a few of the obligatory conservative web pages to get their take and most were in the same mood as Laura and her listeners. The only one I found so far that was unambiguously optimistic was Hugh Hewitt who raised the point that Roberts and Miers bring significant executive branch experience to the bench.

Question for SCOTUS trivia buffs: in the history of SCOTUS nominees, how many have had that kind of background? And how did they fare as judges? I wonder!

In the abstract, what is the "best" experience base for a judge?

Do we want individuals who have devoted their whole lives to the law with most of it in the context of being judges? They know how the system works and can hit the ground running. But might they be too insulated from other experiences?

When someone who has legislative experience goes to the judicial branch, what do they carry with them? Will they carry with them a deference to legislative intent? Or will they wind up legislating from the bench?

Now, we may have two new justices with lots of experience with the inner workings of the White House as both worked in the White House Counsel's Office.

Will this mean they will have a narrower and constrained view of the judicial function and respect for the prerogatives of the other two branches? Or will they feel the need to counter the actions and over-reaching by the other branches?

Aside from the fears of the "blank slate" of Miers are the fears that she has too little experience in Supreme Court matters. Limited experience had not prevented other nominees from being confirmed.

Check out the biographies of the current Supreme Court.

Let's compare resumes of Miers with O'Connor whom she may replace if confirmed and Thomas whom many lionize in the conservative political community.

Sandra Day O'Connor's resume:
Deputy County Attorney, 1952-1953
Private practice law in various places, 1954-1960
Assistant Attorney General of Arizona, 1965-1969
Arizona State Senator, 1969-1974
Judge County Superior Court, 1975-1979
Judge Arizona Appeals Court, 1979-1981
Confirmed to SCOTUS, 1981

Clarence Thomas' resume:
Assistant Attorney General of Missouri, 1974-1977
Attorney for Monsanto, 1977-1979
Legislative Assistant for Senator Danforth, 1979-1981
Assistant Secretary for Civil Rights, 1981-1982
Chariman of US Equal Employment Opportunities Commission, 1982-1990
Judge US Appeals Court DC Circuit, 1990-1991
Confirmed to SCOTUS, 1991

Harriet Miers' resume:
Attorney for private firm, 1972-2000 (became president of that firm in 1996)
President Dallas Bar Association, 1985
Dallas City Council, 1989-1991
President Texas State Bar, 1992-1993
Chair Texas Lottery Commission, 1995-2001
Assistant to the President, 2001-2003
Deputy Chief of Staff, 2003-2004
White House Council, 2004-2005
Nominated to SCOTUS, 2005

As you can see that the three resumes are thin on Constitutional Law matters with the exception of the brief time Thomas was on the DC Circuit Court of Appeals.

The presumption I have on these kinds of high function ambitious individuals is that they are smart and even if they don't have years of legal writings on the Constitution, they would quickly catch onto what the issues are and how the process works.

The media and the Senate committee will comb through Miers' background and any writings and speeches that can be found. Obviously, if some bombshell revelation is found her nomination will be quickly withdrawn. Given how careful the vetting process is these days, it is unlikely that will be the case.

The hearings will be crucial. Since her resume is thin on Con Law matters, she will be quizzed and if she comes across as not up to the task, she will be defeated in committee. In this regard, she does face a tough hearing after Robert's masterful performance. Roberts was a walking-talking case law textbook.

If Miers seems unsure or gets confused during questioning, the Democrats who are for the moment playing nice will turn and attack. Republicans might not be willing to go to the mat for W should this nominee get into trouble. Ironically, the last time a nominee with modest experience ran into trouble was Clarence Thomas whom conservatives now hold out as the type of nominee they want. On that occasion, the Republicans in the Senate went to the mat to get him confirmed.

I would have preferred Bush 43 had gone with a more known quantity. However, I'm not on the ledge with this pick ... yet!