GWB Appoints Miers -- Grade: F-

I have spent my blogging time of the last week over at confirmthem.com engaged in some very interesting debates over the impending nomination. Now the choice is out.

Harriet Miers. There are some lessons from this:

1. (a) Either the President is ignoring everything coming from sources like confirmthem.com that supposedly reflect his base

or (b) he just told the base to kiss his rump.


2. (a) Either the President has no clue what the judicial philosophy of Scalia and Thomas is

or (b) he just told the base to kiss his rump.


3. (a) Either the President is so dense he cannot tell the difference between John Roberts and Harriet Miers with regard to intelligence, presentation skills, and experience

or (b) he just told the base to kiss his rump.


I think I am noticing a pattern.

There has been active debate about a slew of names -- probably twenty or so names got some level of serious play. Miers has the distinction of being dismissed universally as the most preposterous possible choice.

If you were in the debate or were now to review it, you would see a wide array of criteria being applied. Some people were touted for known positions on important issues. Others were lauded for years of experience. A lot of discussion centered on intellectual heft, quality of experiences, even quality of law school. Concerns were raised about candidates that appeared to reflect cronyism. Some folks expressed a desire to show that membership on the Court was available to people from all walks of life, while others derided an appointment based on identity politics.

I did not agree with the relevance of each of these criteria, but it is interesting that it is a clean sweep. Miers is an F- on every criterion suggested.

Her positions on any of the issues of the day are unknown and there is no indication she has ever thought deeply about them.

She has no significant experience in a judicial post or government service (as distinguished from service to the President himself).

There is no evidence of intellectual heft.

Her academic record is paltry.

She is the epitome of a crony – the President’s personal lawyer from the President’s home state. She has no qualifications other than who she knows. And that cronyism wipes out any plausibility to the walks of life argument. Sure she is female (so is half the population). But there were many well-qualified women available who would actually come from different walks of life – small towns, state courts, underprivileged background, etc. Miers does not represent any different walk of life. Therefore, the appointment smacks of pure identity politics – check mark in the female box.

This reminds me of two great stories. I’ll try to keep the details straight on them.

First, in 1961, Senator Kerr of Oklahoma put forward Luther Bohanan to be a federal district judge. Bohanan was widely regarded as utterly unqualified (and his service proved all of those people to be correct in their assessment). Kerr’s response was that anyone could get a qualified judge appointed; the true test of power was to be able to get an unqualified judge appointed.

Second, when Nixon failed on the Haynsworth nomination in 1969, he followed with Harrold Carswell, an appointment also viewed widely as mediocre. Senator Roman Hruska, ranking Republican on the Judiciary Committee, defended Carswell with the following statement: “There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation aren’t they?”

I have no idea what the President was thinking or if he was thinking. There is no silver lining with this cloud.

I forward no guess as to whether Miers will be confirmed. In any case, we have a flaming disaster. If she is not confirmed, O’Connor stays on the Court for another term. If she is confirmed, we get a manifestly unqualified Justice on the Court who may or may not understand the scope of the issues or make appropriate decisions. Even if she turns out to vote the right way, the GOP has lost all credibility with the public in presenting itself as the party that governs responsibly, respects the federal courts by appointing highly qualified jurists, and puts principle over politics in the courts.

F-