Harriett Miers as Potter Stewart:
I've disagreed with a great deal of what Hugh Hewitt has written about the Miers nomination, but he had one post recently that I think is quite plausible. If confirmed, Hewitt predicted, Harriett Miers would probably be something like centrist Justice Potter Stewart:
  How will Harriet Miers turn out on the SCOTUS? My best guess is a lot like Potter Stewart, in temperment and tone, and in results.
  Given how little we know about Harriett Miers, it's hard to know for sure. Maybe she will turn out to be very conservative. Still, I think Miers-as-Stewart is a pretty fair guess. It's hard to describe Stewart's long career in a sentence, but I think it's fair to say that Potter Stewart was often considered a centrist or moderate conservative swing vote on a relatively liberal court. His was a somewhat unpredictable vote, joining Brennan and Marshall on the left in some cases and Rehnquist on the right in others.

  I think it's plausible that Miers would take a similar approach, at least based on the little we know. It seems likely to me that Miers has relatively few strong political or jurisprudential commitments: if she did, those views presumably would have come out at some point in her long career. The few glimpses we have into her own ideas seem to suggest that she is what I think of as a Texas Democrat — moderate to conservative on social issues, relatively liberal on economic issues. Those hints are just hints, of course. Miers seems to be more of a process person than a concept person, so we don't have a lot to go on. In the midst of that uncertainty, though, the idea that Miers might end up as a centrist in the Potter Stewart style seems to me a plausible guess.

Related Posts (on one page):

  1. Hewitt v. Hewitt:
  2. Harriett Miers as Potter Stewart:
Professor Bainbridge opts, instead, for Lewis Powell.

I guess it's my bad hearing. I had always thought Bush had promised us a judge like Scalia or Thomas, but I guess he actually said "Stewart or Powell".
10.14.2005 2:49pm
Potter Stewart was in Skull &Bones at Yale, I think.
10.14.2005 2:53pm
MarkW (mail):
I'd say that Harriet Miers turning out to be another Stewart or Powell would be the very top of the upside of the range of possible outcomes. Both of them were competent, if not outstanding, Justices. Miers still looks more like another Whittaker to me.
10.14.2005 2:56pm
Buck Turgidson (mail):
Potted Plant is a more likely outcome than Potter Stewart.
10.14.2005 3:01pm
Been There, Done That:
I thought Hugh Hewitt was DEFENDING the nomination...?
10.14.2005 3:07pm
The Family:
Miers is a tax-and-spend liberal, working in a Republican administration out of personal loyalty to W.

Harriet Miers wrote:
"Appeals even to lawyers and judges to help preserve and defend our justice system meet with some of the same responses we expect from those not familiar with the system or its needs: 'throwing money at a problem is not the answer,' 'no new taxes,' 'we can and should make do with what we have, after all it has always worked before.' These responses demonstrate an unawareness of the impending crisis for the judiciary."
— L.A. Times, today
(Window Into Miers' Legal Thinking in the 1990s Reflects a Glint of Liberalism)
10.14.2005 3:09pm
Perhaps Miers was just expressing a distate for thoughtless boilerplate arguments.
10.14.2005 3:24pm
SimonD (www):
Which is marvellous, because as we'll all remember: President Bush campaigned on his promise to appoint Justices in the mold of Justices...Uh...Stewart and Powell...Right?
10.14.2005 4:18pm
Arthur (mail):
I doubt it. Potter Stweart is most famous for recognizing obscenity when he sees it. By contrast, Miers has worked closely with President Bush for the past five years.
10.14.2005 4:29pm
Unnamed Co-Conspirator:
Can we please stop pretending that political ID tags like "centrist," "liberal," or "conservative" mean anything at all in a discussion of a SCOTUS nominee? Do we really expect (or want?) the justices on the Court to weigh their own political or policy preferences more heavily than a disciplined analysis of the law itself? Because that's exactly what we're saying when we use such terms.

We can tell ourselves that conservative is really code for originalist or, as the President sees it, "strict constructionist" [PULLS OUT LAST REMAINING STRANDS OF HAIR; HEAD-BUTTS WALL IN FRUSTRATION] or that "liberal" is really code for activist or an advocate of a "living constitution", but that's not really what's going on.

"Conservative" and the various terms used and misused interchangeably can be stripped of their nuances -- they mean someone who is pro-life first and foremost and would vote her to vote to overrule Roe v. Wade, whatever that may mean (whether option A, ruling that a fetus is a person, or option B, sending the issue back to the states). "Liberal" or any of the terms used or misused to describe a philosophy that, well, lets the justices make it up as they go along, can also be boiled down to someone who is "pro-choice," that is, favoring a constitutional right to abortion without any limitations not already in the whatever penumbra that contains that right.

That's it. Our judicial appointment and confirmation process has been reduced to a Rock'emSock'em Robots fight over one issue, with Ralph Neas and NARAL pushing the buttons to control the blue robot, and the evangelical right controlling the red robot. On the few occasions that the Dems have had a chance to make appointments to SCOTUS within the last few decades, they've been pretty good at predicting the peformance of their chosen ones, probably because, given the kinds of questions we heard the Dem leadership ask Roberts, the Dems are utterly shameless in their disregard of anything resembling the rule of law. A policy driven approach to jurisprudence is an absolute requirement for the leaders of a party who can't manage to accomplish anything by the usual processes of our system, and so the Dems know exactly how to find nominees who share this view, and how to Bork those who don't, even if the Borkee (like Bork himself) happens to to have socially liberal views but would prefer to implement them by legislative legislation, rather than judicial legislation.

The Republicans, on the whole, aren't much better -- there are many who want a policy driven approach just as much as the Dems do, only with their policies doing the driving -- but at least they're not so shameless about it. The only problem is that the Republicans forget that the purpose of the code-words is to fool the other side, rather than just confuse themselves, which is what invariably happens. Occasionaly, we Repubs stumble onto a SCOTUS appointment that actually delivers a disciplined, philosophical approach to interpreting the constitution and laws, but even a blind squirrel finds a nut every now and then.
10.14.2005 5:12pm
I think it's just as likely that Miers will become a "sidekick" Justice to Scalia, Thomas and Roberts, especially at the beginning of her tenure. If Miers truly is as loyal to Bush as has been presented to the public, then Miers will, at least while Bush still remains in office, vote in a way in which she will never be to the "left" of all three of the aforementioned Justices together in any given case. (And by "left," I mean "left" in terms of political results, which is presumably what President Bush cares about.) Perhaps Miers will remain "loyal" to GWBush even after he leaves office, and remain a "sidekick" Justice for a significant part of her tenure. But once Bush leaves office, all bets are off, and it's just as possible she'll end up like Potter Stewart as anybody else.

A (potentially rhetorical) question: When loyalty to one's bosses is your best trait, what happens when you are put in an office where your loyalty is owed to the Constitution, rather than any specific person? It will be interesting to find out.
10.14.2005 6:23pm
Veggie_Burger (mail):
"Miers is a tax-and-spend liberal, working in a Republican administration out of personal loyalty to W."

Maybe she is a don't-tax-and-spent-conservative like Bush.

What does taxing and spending have to do with being on the Supreme Ct. anyway? Please explain.
10.14.2005 7:20pm
SimonD (www):
A (potentially rhetorical) question: When loyalty to one's bosses is your best trait, what happens when you are put in an office where your loyalty is owed to the Constitution, rather than any specific person? It will be interesting to find out.
When you have no prior judicial experience, and you have no judicial philosophy of your own, you mean? I suspect that what happens is that Miers will simply do what every good lawyer (but no good Judge) would do: find a rationale to support her desired result.
10.14.2005 7:48pm
Daryl Herbert (www):
Harriet Miers as Potter Stewart? It seems more like Dubya is in that role. Why is Miers such a good candidate for the Supreme Court? The only rationale given is that we should trust Dubya's instincts--that he knows one when he sees one.
10.15.2005 3:45am