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Harriett Miers?:
I don't know much about Harriett Miers, but I thought I would blog a few tentative reactions to her nomination.

  First, I am quite puzzled by President Bush's choice. According to news reports, Bush had instructed his staff to "find another Roberts." But Miers seems to be the anti-Roberts. As far as I can tell, she has no particular experience or expertise in any areas of law that the Supreme Court is likely to consider in the next twenty years; she has no history of having thought deeply about the role of judges in a constitutional democracy; and she is a complete unknown among the parts of the DC legal community that will now be considering her candidacy for the Supreme Court.

  Of course, this doesn't mean that Miers can't be an excellent Supreme Court Justice. She had a reputation in Texas as a very good and very principled lawyer. And it's also true that never having been a judge isn't disqualifying: William Rehnquist had never been a judge before being confirmed to the Court in 1972. But Rehnquist was a bit different. While he hadn't served as a judge, Rehnquist had considerable experience with the issues that came before the Supreme Court prior to his nomination to be a Justice. Rehnquist was the head of DOJ's Office of Legal Counsel at the time of his nomination, and was himself a former law clerk to Justice Jackson.

  Another thought is that, if Miers is confirmed, it seems quite possible that the effect of George W. Bush's two Supreme Court picks will be to retain the basic balance of the Supreme Court. Despite all the hullaballoo about the Court shifting to the right, the basic direction of the Court may remain "as is." It's hard to predict this, of course, as I have no idea how Miers would vote. But it seems plausible to me that Roberts will be a slightly more liberal version of Rehnquist, and Miers will be (if confirmed) a slightly more conservative version of O'Connor. The net result would be little change in the basic direction of the Court.

  In any event, all of this is very tentative. I don't know much about Harriett Miers, so I'll be learning more about her over the next few days just like everyone else.
flaime:
I'm not sure about Miers...She has acted as counsel for a POTUS who has displayed an increasingly totalitarian attitude over the length of his tenure. And as counsel, she had to approve of his actions at some point. She might get a pass, given that Gonzoles was counsel during the most flagrant displays by the POTUS (banning people from appearances, torture memos). But, given how secretive this White House is, we won't know what otherwise questionable acts have been committed in the name of the POTUS for some time and I'm sure she had to give approving legal advice on some of them.
10.3.2005 11:40am
AnonymousAnonymous:
I think you may have one think wrong here - and that flaime may be onto something.

If the war on terror proves to be the extended conflict everyone imagines it will be, questions re: executive branch authority will command as much SCOTUS attention as any other category. Miers has worked for the White House in both a legal and a policy capacity. That makes her something of an insider when it comes to these questions.

I'm not saying this is good or bad, but it seems a key point.
10.3.2005 11:43am
Public_Defender:
The conservative reaction to Miers is interesting. The Right could have assumed that Bush picked a strong conservative who doesn't have a confirmation-killing paper trail. That would mean that Bush's base thought he was principled.

But instead, much of the Right thinks Bush is acting out of cronyism. Has the Right finally joined the Left in concluding that Bush is all about doing favors for his buddies instead of acting on principle?
10.3.2005 11:46am
lyle stamps (mail):
Mr. Kerr:

Will we really _learn_ anything about the nominee? How much did you learn about Roberts via the Media, blog or otherwise. I don't expect we will learn _anything_ interesting about the nominee.
10.3.2005 11:57am
Todd:
I assume that the Administration will claim Executive Privilege on just about everything of substance that she has written at the White House. If that assumption is correct, then what are we going to learn through the confirmation process? That's she's humble? That her favorite movies are Dr. Zhivago, North-by-Northwest, AND Casablanca?

Second Question: Politically speaking, could the Administration selectively waive privilege and release the documents that make her look good w/o releasing the ones that make her look bad? (did it do that with Roberts?)
10.3.2005 12:20pm
Jade (mail):
The problem with saying the balance of the court will be maintained is that in 5-4 decisions it's not the average that matters. It's the particular view of the person in the middle of the court. O'Connor was often the swing vote, decided one way, and restricted the scope of that decision as much as she could.

If most or all of those cases suddenly are conservative decisions, that would change the balance of the court a great deal. Add to that the public's lack of knowledge of whether Miers would follow O'Connor's example in making narrow decisions, and it seems necessary that the Senate learn a great deal about her judicial philosophy before voting on her nomination.
10.3.2005 12:23pm
Todd:
errr...by "Executive Privilege," I meant "Executive Privilege and Attorney-Client Privilege." Somehow, I don't think that subject matter waiver will apply here.
10.3.2005 12:29pm
Scott Moss (mail) (www):
Nice point re "find another Roberts." Apparently, that was interpreted as (A) "find someone with no paper trail" rather than (B) "find someone so unquestionably brilliant and squeaky-clean that any objection to him would look purely ideological."

Now, I'm somewhat left of center, but I was hoping that the Roberts nomination might have helped end this can't-nominate-prolific-intellectuals cycle: if (B), "proven brilliance and unquestioned qualification," could help a strong conservative get half the Dem votes... well, that would be a nice precedent; McConnell, for example, would've been confirmed under that rule.

But apparently the White House drew the exact opposite lesson: Roberts passed because of (A), his lack of a paper trail.... Of course, that's virtually the only thing he has in common with Harriet Miers.

(Disclaimer: I'm open to the possibility that Miers is a genius, but I just don't see a lot of evidence of it.)
10.3.2005 12:29pm
SP:
You know, I would accept a judge who won't overturn Roe, if only because that won't happen anyway. But would it hurt to appoint a justice who won't just let Congress run over the first amendment with election laws? That won't let the administration just toss anyone in jail? A justice that's actually read the commerce clause?

Miers is a big zero. Who knows what she thinks. She probably thinks Wickard v. Filburn is fine - it's precedent, after all!
10.3.2005 12:30pm
3L LSU (mail):
"and she is a complete unknown among the parts of the DC legal community that will now be considering her candidacy for the Supreme Court"

How is this a reason the President should not nominate Ms. Miers?
10.3.2005 12:35pm
Bill Dyer (mail) (www):
Prof. Kerr wrote,

[S]he has no particular experience or expertise in any areas of law that the Supreme Court is likely to consider in the next twenty years; she has no history of having thought deeply about the role of judges in a constitutional democracy; and she is a complete unknown among the parts of the DC legal community that will now be considering her candidacy for the Supreme Court.


In other words, she's like 99.9% of the practicing bar (John Roberts having come from the 0.1% remainder).

Law profs are going to be her biggest critics. No offense intended toward our esteemed hosts here on VC, but the law prof component of the bar is already adequately-, and perhaps over-represented on the Court (which is one reason we have these 3-2-2-1-1 splits). I think the diversity she brings as a practicing lawyer is much more significant than the diversity she brings as another woman.
10.3.2005 5:50pm
John in Nashville (mail):
The primary criterion in this administration is how does a particular policy decision is how does a policy decision or appointment affect thosee whose names begin with Bu and end with sh. Remember the famous catchphrase, "loyalty to all Bushes"?

Replacement of Justice O'Conner is a sine qua non of overturning Roe v. Wade. The President likely wanted someone to whom he is personally close enough to cut a side deal whereby Roe will survive unless and until Jenna and Barbara get sober
10.3.2005 6:05pm