THE WAIT is over -- President Bush has announced his nomination for the next associate justice of the U.S. Supreme Court. His choice of Harriet Miers, an ex-corporate attorney and his close friend, has come as a surprise to prognosticators who were expecting an experienced judge. As Miers now prepares for the confirmation process, she will -- and should -- face strong skepticism regarding her lack of any background in constitutional law.
It should be noted that there is no requirement in the Constitution or elsewhere that Supreme Court justices have experience as judges, or even have a law degree. However, the vast majority of justices appointed in the past have been judges on federal or state courts. This is only logical, given that the role of Supreme Court justices is to interpret the Constitution, as is done at the lower levels of the federal judiciary.
Miers' best qualification, however, seems to be her unflagging loyalty to President Bush. According to the Cox News Service, she's been known to help the president clear brush at his ranch, and a former Bush speechwriter says she told him Bush was the most brilliant man she had ever met. If nothing else, Bush probably hopes he knows Miers well enough to be sure she will not gradually develop into a liberal justice, as his father's nominee David Souter has done.
A background in constitutional law, however, is by consensus the best preparation for a position on the Supreme Court. President Bush seemed to agree when he portrayed John Roberts as a man who would avoid legislating from the bench and would stick to the Constitution. But if the president supports a strict interpretation of the Constitution, wouldn't a candidate with experience in this line of work have been the best choice?
There is no denying that Miers' career in the law has been very successful; she was the first woman hired at her firm and by all accounts is very skillful in the courtroom. The most important qualification for a justice, however, is the ability to determine how statutes and decisions compare with constitutional principles. One doesn't learn how to make such determinations as White House counsel or head of the Texas Lottery Commission. This means Miers has the potential for exactly the sort of judicial activism Bush told the country he wanted John Roberts to defeat. Recent revelations of her devotion to evangelical Christian values also hint in this direction.
Defenders of Miers, like Senator John Cornyn, R-Tex., are quick to point that all the justices currently on the court were state or federal appellate judges at the time they were nominated and claim that Miers will bring a different perspective to the Court. Commentators have cited the examples of justices like Byron White, the former NFL player who went from deputy attorney general to associate justice in 1962 and served for over 30 years, and Lewis Powell, who also had his career in private practice. However, the dynamics of this new Supreme Court are likely going to be interesting enough, given that its new chief justice is also its youngest, most inexperienced member.
The move in the best interests of the Court and the American people would have been the nomination of a conservative judge acceptable to Bush with a case record sufficient enough to expedite the confirmation process. Even the kind of ideological nitpicking a strong conservative would have caused would have been preferable to spending the confirmation process determining whether the candidate is qualified -- which was never in question in the case of John Roberts, who enjoyed a relatively smooth confirmation.
The nomination of Miers marks another key mistake for the current administration. Although her legal record is strong, there is no guarantee she will be the next Byron White. With a number of key issues facing the Court in this and upcoming terms, she certainly does not have time to learn on the job. Moreover, at a time when Bush desperately needs to gain face with the American people, it looks as though he's let one of the most important decisions of his presidency be guided by the patronage system.
Matt Waring is a Cavalier Daily Viewpoint writer.
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