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Crony on the Court?

By David Wallace-Wells
Posted Monday, Oct. 3, 2005, at 2:30 PM ET

Crony on the court?: This morning, President Bush nominated White House counsel Harriet Miers, who has never been a judge, to replace Sandra Day O'Connor. Bloggers' reaction was quick and biting—and this time, much of the venom came from conservatives.

At the National Review, former Bush speechwriter David Frum sets the tone by calling the nomination "an unforced error" and a missed opportunity to significantly shift the court rightward. Leading conservative Ed Morrissey agrees. "Not only does Harriet Miers not look like the best candidate for the job, she doesn't even look like the best female candidate for the job," he writes at Captain's Quarters.

Volokh Conspiracy legal eagle Orin Kerr is especially flummoxed. "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." Many beltway observers are equally dismayed. "It's possible that with a six-week bar review course, any of us would be more qualified than Harriet Miers to sit on the Supreme Court," writes Washington Monthly editor Amy Sullivan, a guest at Political Animal. "Bush chose hackery."

"Harriet Miers is many things, but she is not a Constitutional scholar, well-seasoned in elective office, or someone who has made many public speeches or presentations on the workings of government," writes Ph.D. hopeful Paul Deignan at Info Theory. "She is an unknown and unproven functionary whose chief virtue is the one virtue that we must reject—a strong tie to a particular chief executive."

It's not that Miers' ideological positions are unknown, argues conservative PoliPundit, but that her positions are known only to President Bush and few others, making her, conceivably, a relatively safe nomination with a potentially enormous conservative upside. At the National Review Online's conservative incubator The Corner, however, John Podhoretz says the conventional wisdom, that Miers' lack of a paper trail makes her an invulnerable "stealth" candidate, is defective. "She has a colossal paper trail," he insists, "and a potentially dangerous one too—as one of the two honchoes of a law firm in Texas called Locke Liddell and Sapp. This means that every case taken by Locke Liddell and Sapp during her time as chief partner is part of her 'paper trail.' … One really controversial case might give Democrats sufficient cover to oppose her en masse and, depending on the circumstance, might be enough for a few Northeastern Republicans to go off the reservation."

The nomination is "an inspiring testament to the diversity of the president's cronies," quips Ramesh Ponnuru, also at The Corner. Others parrot the accusation of cronyism. "What Julie Myers is to the Department of Homeland Security, Harriet Miers is to the Supreme Court," writes Michelle Malkin, syndicated columnist and blog bigwig. At conservative roundtable Power Line, John Hinderaker calls the Miers nomination "a disappointment." Colleague Paul Mirengoff concurs. "This nominee is a two-fer," he says, in that "she would not have been selected but for her gender, and she would not have been selected but for her status as a Bush crony. So instead of a 50-year old conservative experienced jurist we get a 60-year old with no judicial experience who may or may not be conservative."

"Think of her as a very capable indentured servant of the Bush family," instructs conservative contrarian Andrew Sullivan. "She'll do what they want. She'll be a very, very tough nut to crack in the hearings. And I have no idea about her judicial philosophy. But I imagine that's the point. … I think they've found someone whose personal loyalty to Bush exceeds even Gonzales'. And in some ways, I see this very personal, very crony appointment to be a response to being told he couldn't pick his main man, Alberto. Harriet is his main woman."

"My understanding is that she did a bang-up job as a Texas lottery commissioner, and also that running lotteries has not traditionally been considered a qualification for the highest court in the land," writes liberal Mathew Yglesias at the American Prosect's TAPPED. It's tempting, he writes, "to conclude that anyone whom the wingnuts dislike must be a good thing on some level. But au contraire! One of Bush's truly unique abilities is to undertake major initiatives (farm bill, medicare reform, steel tariffs) that conservatives don't like but which simultaneously don't do anything to please liberals. This may be another such case."

At Volokh Conspiracy, law professor David Bernstein repeats the common critiques of cronyism and characteristic overvaluation of personal loyalty. "On the other hand," he writes, "I'm please that Miers is (a) not from an elite law school; (b) not a federal judge; and (c) spent the vast majority of her career outside the beltway. All good things to bring new perspectives to the Court, and, in the case of (b), break a silly tradition [that Justices MUST be from the federal bench] that has evolved." He also notes both of Bush's SCOTUS choices are likely to uphold the president's policies on the war on terror, and wonders if justices chosen for short-term political expedience will, like those stuffed onto the court by FDR to support the New Deal, have significant, and unintended, long-term consequences.

Lyle Deniston of SCOTUSblog mentions several precedents of undistinguished SCOTUS nominees and wonders if the American Bar Association will even find Miers fit to serve. "At a minimum, it does not seem likely that the fight over Miers' nomination will be resolved until well into the winter," he predicts.

Read more about Harriet Miers.

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David Wallace-Wells is a writer living in New York.
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