What if Gonzales and Miers were on the Supreme Court?

Dubious and far-fetched ideas.
March 15 2007 6:22 PM

SCOTUS-gate

What if Alberto Gonzales and Harriet Miers had been confirmed to the Supreme Court?

Harriet Miers. Click image to expand.
Harriet Miers 

Nearly lost in all the hootin' and hollerin' about U.S. Attorney-gate is a delicious truth: Two of the worst offenders in this whole mess were at the top of President Bush's list to fill the U.S. Supreme Court vacancies last year. That's right, friends, had Bush had his way in the fall of 2005, we'd be looking today at a court fearlessly led by a Chief Justice Alberto Gonzales and starring an Associate Justice Harriet Miers.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Stop and savor the possibilities. Think what the past year at the high court would have looked like had the president managed to seat his two favorite lawyers. Just imagine, with me, the delicious scandals that might have ensued.

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October 2005: Clerk-gate
Having won confirmation by a narrow margin, the new chief justice, Alberto Gonzales, takes his seat at the high court, bringing with him his four new law clerks, D. Kyle Sampson, Tim Griffin, Karl Rove, and Harriet Miers. Gonzales, at a press conference on the steps of the Supreme Court, announces that while it's certainly unusual to have a law clerk who is herself a nominee for a Supreme Court vacancy, the thought of being separated from Rove, the president, and Ms. Miers for any length of time was too awful to contemplate.

October 2005: Quaint-gate
Presiding over his first oral argument, Chief Justice Alberto Gonzales stuns the gallery by replacing the four golden bars former Chief Justice William Rehnquist affixed to his robes with an embroidered golden image of President George W. Bush. Gonzales also summarily revokes the Supreme Court rules governing the number of votes required in order to hear a case. Under the new regime only one vote is required so long as it comes from the president. And he announces that his aforementioned law clerks will now sit at his side during oral argument. Gonzales further decrees that nobody may interrupt the solicitor general during his portion of oral argument. When challenged by his colleagues on these unilateral decisions, Gonzales replies that the old court rules were "quaint" and that a "new kind of court requires a new paradigm."

November 2005: Clerk-gate, Part II
Former White House counsel/Gonzales clerk Harriet Miers is confirmed to the high court by a narrow margin. She brings with her as clerks Jenna Bush, Barbara Bush, and Laura Bush. When queried by sitting Justice Stephen Breyer as to whether she wouldn't prefer to have a law clerk who had studied the law at some point, Miers confidently pats her folio of Christmas cards and thank-you notes from the Bush family and says, "I have all the constitutional knowledge I need right here, thanks."

January 2006: You're-Fired-gate
Associate Justice Harriet Miers circulates an e-mail to her colleagues suggesting that since all Supreme Court law clerks serve at the justices' pleasure, they should be summarily fired so as to create new job possibilities for 36 new clerks. In a follow-up e-mail, she notes that, on second thought, there would be openings for only 35 new clerks under her scheme, as she would really like to keep Jenna.

March 2006: Clerk-gate, Part III
An unsigned per curiam opinion issues from the Supreme Court declaring abortion illegal under all circumstances, overruling Brown v. Board of Education, and striking down the University of Michigan's affirmative action policy. Several of the associate justices express some dismay that these cases were never argued or briefed at the high court and that the alleged opinion was never circulated. Washington Post reporters soon discover that chief  justice law clerk Kyle Sampson himself drafted the opinion in concert with the White House. At a subsequent press conference, Gonzales "acknowledges and accepts" personal responsibility for the actions of his law clerks, while clarifying that, because he supervises a massive staff of five people, he had absolutely no idea what Sampson was doing or why. Nevertheless, Chief Justice Gonzales pledges to redouble his efforts to find out why his staff lies to him all the time.

June 2006:Hamdan-gate
In a 5-4 opinion, written by Justice John Paul Stevens, the Supreme Court decides in Hamdan v. Rumsfeld that President Bush's military commissions, created to try enemy combatants held at Guantanamo Bay, are unconstitutional. In a blistering dissent by Chief Justice Alberto Gonzales, the former attorney general repeats his claim that the president's tribunals are legal, his suspension of the Geneva Conventions  are legal, his warrantless wiretapping program is legal, his yet-to-be-enacted future detainee-treatment act would be legal; and that, indeed, if the president wanted to water-board any sissy liberal justices who disagree with him, that would be legal as well. The dissent cites one legal document for these various constitutional principles: the OLC torture memo.

October 2006: You're-Fired-gate, Part II:
Justice Harriet Miers, in a series of e-mails to the White House, suggests that since all the Supreme Court cafeteria workers serve at the justices' pleasure, they should all be fired and replaced with members of the Federalist Society. When Chief Justice Alberto Gonzales suggests that this would be "disruptive," clerk Kyle Sampson shoots off an e-mail suggesting that only the cafeteria workers who serve coffee to David Souter or Ruth Bader Ginsburg should be fired, then replaced without "even waiting for their bodies to cool."

October 2006: Obstacle-gate:
Chief Justice Alberto Gonzales, under increasing fire for the actions of his staff, gives a rare interview to Jon Stewart, in which he defends his actions with the claim that he has "overcome great obstacles" in life in order to become the chief justice, and he feels that it behooves him to put as many comparable obstacles as he can in front of others.

November 2006: Throw-Yourself-Under-the-Bus-gate:  
Justice Miers, realizing that the many Supreme Court scandals have become impossible to ignore, offers to step down from the court, for the good of the nation. President Bush accepts her resignation, then names her the new director of the FBI, from which position she will shortly resign over the National Security Letters scandal.

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