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Did Miers Vet Judicial Nominees?
One of the arguments on behalf of Ms. Miers' qualification to be on the Supreme Court made by the White House and others is her role in vetting prospective judicial nominees. One thing that the blogosphere is good at is a fact checking, and here is a post that questions the facts upon which that claim is based.
Harriet Miers has held the position of Counsel to the President since February 3, 2005, when the previous occupant of that office, Alberto Gonzalez, was confirmed by the Senate to be US Attorney General. Since that time, President Bush has made twelve nominations to the US Circuit Courts, all of them on February 14, 2005, eleven days after Ms. Miers became White House Counsel. Eleven of these nominees were originally nominated during Bush's first term but never received a vote in the Senate.

Terrence W. Boyle (Fourth Circuit): Originally nominated 9/4/2001
Janice R. Brown (D.C. Circuit): Originally nominated 7/25/2003
Richard A. Griffin (Sixth Circuit): Originally nominated 6/26/2002
Thomas B. Griffith (D.C. Circuit): Originally nominated 5/10/2004
Brett M. Kavanaugh (D.C. Circuit): Originally nominated 7/25/2003
David W. McKeague (Sixth Circuit): Originally nominated 11/8/2001
William G. Myers (Ninth Circuit): Originally nominated 5/15/2003
Susan B. Neilson (Sixth Circuit): Originally nominated 11/8/2001
Priscilla R. Owen (Fifth Circuit): Originally nominated 9/4/2001
William H. Pryor (Eleventh Circuit): Originally nominated 4/9/2003
Henry W. Saad (Sixth Circuit): Originally nominated 11/8/2001

Sources: Federal Judicial Vacancy Archives (December 1, 2004 and November 6, 2002)

Should Harriet Miers receive credit for Bush's renomination - on her twelfth day on the job - of a slate of appellate nominees from his first term?
I have not myself fact checked this fact checking so perhaps there is more to the story of her role vetting nominees than is reflected by this list. [Is it really true that there have been no Court of Appeals nominations since February? Are all the vacancies either filled or pending confirmation?] For one thing, Ms. Miers was certainly present for the vetting and selection of John Roberts for the Supreme Court. If you are in love with that decision, then that is a mark in her favor.

(Hat tip to The Corner)

Update: One further thought. If the White House has made no nominations to the appellate court in the eight months during which Harriet Miers has been White House Counsel, does this reflect well on her tenure? Pretty soon, we will be in "lame duck" mode when no judicial nominees are confirmed in advance of the next presidential elections.

Roger (www):
As far as I can tell, there indeed have been zero Court of Appeals nominations since February (Source: White House judicial nominations web site). And Miers was certainly involved with the vetting and selection of Chief Justice Roberts, but my post was about appellate nominees, so that is why I did not mention him.
10.10.2005 5:37pm
A.S.:
"Are all the vacancies either filled or pending confirmation?"

Obviously, there is now a vacancy on the DC Circuit due to Roberts' elevation to SCOTUS.
10.10.2005 5:51pm
The Angry Clam:
Yup, no nominations during her tenure apart from the re-nominations with the exception, obviously, of Roberts' elevation.

Funny, she's not even listed there yet... shows how much communication the administration had with the folks at OLP who actually were responsible for the great judges we got up until Miers...
10.10.2005 5:55pm
Noms:
There are a lot of vacancies— you can look at them here.

I would be interested to know why the president hasn't nominated people, especially to vacancies in states with two Republican senators. What could be the delay?
10.10.2005 5:57pm
whattheheckisgoingonhere (mail) (www):
There are a TON of district court vacancies. What the heck has Miers been doing? She certainly hasn't been working on judicial nominations.
10.10.2005 6:04pm
Jim Lindgren (mail):
From the list that Noms linked above (if I'm reading it right), I see 7 Circuit Court of Appeals openings with no nominees to fill them.

Should Miers be held partly responsible for making essentially no progress on vetting and nominating judges (other than Roberts)? I don't know enough about the process.
10.10.2005 6:06pm
Nobody (www):
The vacancy page only shows seven CTA vacancies without nominees, eight if you add CJ Roberts seat. Three are in the 9th, and one on the 2d (though I don't know off the top of my head whethere they are in red states).
10.10.2005 6:10pm
Anderson (mail) (www):
We're still waiting for Pickering's replacement on the Fifth Circuit. Get to work, Miers!
10.10.2005 6:26pm
JackJohn (mail):
The problem is that Democrats were filibustering EXCLUSIVELY appellate court nominees, while letting district court judges on at a supra-optimal rate. Bush is afraid to push appellate judges, because that will trigger a Nuclear Option showdown again.
10.10.2005 6:59pm
Anon233:
Actually, there is one recent appellate nomination. On September 29, the president nominated James H. Payne to a seat on the Tenth Circuit that will be vacated in mid-October when Stephanie K. Seymour takes senior status.
10.10.2005 7:03pm
Anderson (mail) (www):
Well, JackJohn, if Bush would nominate people who aren't flakes, maybe things would go better?

I seem to recall quite a few appellate judges' being confirmed?

Including, lord help us, Jay "What Youngstown Case?" Bybee.
10.10.2005 7:04pm
A Guest Who Enjoys This Site:
My question would be how directly involved Miers would be in the selection process until right toward the end. I'm certain that the initial process would revolve around assistant staffers, who then delegate to junior staffers, who then delegate to..., sorting through resumes, CV's, decisions, et al. Then a group would consolidate that list. Then a smaller group would consolidate that list... Until all Miers saw was a very select and relatively small group of potential nominees. If she was involved at all prior to the generation of this short list, it was most likely as a reminder to those culling the records as to what they were looking for philosophically.

Therefore, Miers herself was not asked to identify or differentiate between judicial philosophies. She was simply asked to sort through a collection of nearly identical philosophies based on 'appointment killing' criteria - whatever that was perceived to be.

In short, Miers was not being asked to separate the sheep from the goats. Miers was also not asked to identify those sheep with the best genetic traits. Her responsibility was simply to select the best groomed sheep from a small, genetically 'pure' flock.

You will forgive my sense of cynicism here, but I find this somehow less than reassuring or compelling as to her ability to wrestle with complex, potentially valid, yet conflicting and/or falsely premised, issues of Constitutional law.
10.10.2005 7:29pm
whattheheckisgoingonhere (mail) (www):
Guest,

It seems that Miers hasn't had much if anything to do with judicial nominations. Before we even get to the question of whether or not judicial selection is a qualification, the nominee first has to have done some judicial selection. Miers hasn't.
10.10.2005 7:36pm
A Guest Who Enjoys This Site:
whattheheckisgoingonhere:

I think we can agree she was involved, at least to some degree, with the Roberts nomination/appointment. I'm not as sanguine about Roberts as many of his supporters, but the question here is about Miers. That's my point. Her involvement in his intitial 'vetting' was probably not substantial; but, she certainly had some engagement with his final 'vetting' and some input into his ultimate selection.

The question is, does offering an opinion on members of a VERY short list of pretty much 'vetted' candidates which share predominantly similar judicial philosophies constitute a demonstrated ability to work through complex, Constitutional issues?

Again, call me cynical, but I don't think so.

NOW, you may add to this the fact that she, so far as the members of this board can discern to this point, doesn't APPEAR to have participated in an ACTIVE selection process for appellate court nominees. Even if her supporters contend that appellate court nominations have been 'back burnered' due to the selection, vetting, and appointment process of two Supreme Court justices, we are still forced to ask: 1.) How extensive was her contribution to the process of appointing Roberts? and (2.) How diverse and substantive was her involvement in the process of the second nominee given that SHE is the one who was selected?

No matter how you answer these two questions, I still find no reassuring or compelling aspects to this line of support regarding her 'qualifications' vis a vis what she is actually going to be asked to do as a Supreme Court Justice.
10.10.2005 8:56pm
JackJohn (mail):
Well, JackJohn, if Bush would nominate people who aren't flakes, maybe things would go better?


Bill Pryor is not a flake, neither is Miguel Estrada, neither is Brett Kavanaugh, neither is Michael Luttig.
10.10.2005 11:15pm
Victor Davis (mail) (www):
Technically, she also vetted the Miers nomination, at least after having it offered. As a non-lawyer, this begs the question ... if you feel like your nomination is primarily the result of political cronyism, ethically should you go ahead and accept the nomination, anyway?

Is this asking for superhuman restraint? Or is the fact she accepted a highly questionable nomination additional evidence about her temperament and ability to set aside personal interests? We rely on SCOTUS justices to recuse themselves in questionable circumstances. To what extent should we demand that nominees refuse for similar reasons?
10.11.2005 10:51am
NickM (mail) (www):
There may have been vetting of candidates for multiple appellate judgeships that have been conducted under Miers' tenure without those people having been nominated because of political considerations such as the attempt to secure supermajority support for those nominations before they are made or a desire to see how the Supreme Court confirmation process plays out before making a number of new appellate nominations. If there are a significant number of appellate nominations announced in the month or so after Miers' confirmation vote, then we should take it that these people were vetted while she was counsel to the President and were held back for other reasons.

Nick
10.11.2005 2:59pm