THE nomination process of Chief Justice John Roberts purportedly taught the nation the supremacy of qualifications and a commitment to neutral principles of constitutional interpretation over a judge's personal political opinions. If that is the case, the nomination of Harriet Miers to the Supreme Bench has taught the country the opposite -- the importance of political friendship and political feasibility over qualifications and judicial philosophy. If the nomination of Roberts suggested the transcendence of the political constraints of the nomination process, the Miers nomination suggests their strong reaffirmation. For this reason, the Miers nomination represents an unfortunate step backward for the nation.
Miers will likely be confirmed, and easily as well, even though her judicial philosophy remains a complete mystery and will largely remain so throughout the nomination hearings (unless she flagrantly violates the "Ginsburg Precedent" and divulges how she will vote on key issues before the Court).
This is about as much as Senate Democrats could hope for: a judge who can "grow" on the bench as she accumulates tenure, not one who has already committed herself to opinions on contested issues. Democrats will support her knowing well that if they defeat the Miers nomination, Bush may nominate a committed conservative in her stead. Moderates from both parties will support her, as the barrage of criticism her nomination has received from the right has bolstered Miers' moderate credentials immeasurably. Plus, Miers is aided by the fact that she is a female replacing retiring justice Sandra Day O'Connor, the first female justice.
Miers has additional advantages. Her main political asset is that she lacks a "paper trail," meaning she has written very little on legal topics. She has no record of judicial opinions or academic commentary on legal issues. In today's confirmation environment, this is an unquestionable asset, as judicially liberal Senators cannot assail her for anything she has previously said as they did to such effect during the 1987 Robert Bork hearings.
The most frequently heard criticism of Miers is that she is crony of Bush, who was nominated only because she was a close friend of the President.
The objection to Miers should be simply that she lacks qualifications, as nomination of a political crony was once not all that unusual. President Johnson nominated his personal lawyer Abe Fortas to the Court, for example, while President Kennedy nominated Byron White, who had chaired Kennedy's campaign in his home state of Colorado. The difference is that Justices White (who had previously clerked for a Supreme Court justice) and Fortas (a nationally-known lawyer who had argued previously before the Supreme Court) both were well-qualified in their own right. Miers lacks impressive qualifications, having served as White House counsel for only a year after serving as a local bar association president and head of the Texas Lottery Commission.
In a larger sense, the Miers nomination indicates a retreat on Bush's part from a policy of promoting strict construction of the Constitution without regard to politics. Roberts avowed that he would pursue a course of impersonally interpreting the constitution in a neutral manner, a course of judicial restraint, and he stuck to his guns under tough questioning. The Senate's acquiescence in Roberts's course made the political climate more favorable to nominating judges of this sort.
Miers's nomination is unlikely to have such an effect, and this is unfortunate for the many Bush voters who voted as they did believing that Bush would appoint avowed advocates of judicial restraint. By nominating Miers, Bush is diluting this expected payoff. Miers' nomination will please only those who voted for Bush because they admired and trusted him as a person, not those who voted for him on the basis of the issues.
The Miers nomination is also unfortunate as it comes on the heels of poll results by the American Bar Association indicating that 56 percent of respondents believed that judicial activism has reached a crisis point in America. The climate is now favorable for a revitalization of judicial restraint in the face of such widespread fear on the part of the American people of the judiciary assuming further governance of the nation. The old assumption that the Supreme Court reflects the values of the people, or alternately leads public opinion, when it makes substantive value judgments is rapidly being eviscerated.
Committed judicial conservatives are learning the hard lesson that politics almost invariably trumps principle when the two collide.
Noah Peters' column appears Mondays in The Cavalier Daily. He can be reached at npeters@cavalierdaily.com.
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