Harriet Miers and The Clerkship Test
President Bush has selected Harriet Miers, a long time member of his inner circle, to be the next Associate Justice of the Supreme Court. That Bush would fill such an important position with someone whose primary qualification is loyalty to Bush himself is hardly surprising. As Peter Baker notes in the Washington Post:
When Bush nominated John Roberts, I noted that "I'd much rather see an intelligent, qualified conservative on the Court than an undistinguished run-of-the-mill moderate." I was referring to Alberto Gonzales, but the point is equally applicable to Miers. I say this because I think the Supreme Court is a uniquely powerful and important institution. These justices are the ultimate arbiters of our founding document, the Constitution. Being a Supreme Court justice is an incredibly intellectually demanding job. And to the enormous credit of both parties, the selection of justices has, at least in modern times, been remarkably meritocratic. Positions on the Supreme Court are supposed to be reserved for our finest jurists, the smartest and most capable legal minds of our time. Now don't get me wrong, I'm sure Harriet Miers is a very smart and capable person, relatively speaking. But she is simply not a Supreme Court caliber attorney.
I suggested in a previous post that there should be a sort of informal "clerkship test" used when selecting nominees, i.e., Supreme Court nominees should be at least as intelligent as the clerks that will be working for them. They need not have actually been a clerk themsevles, as John Roberts was, but they should be on the same intellectual level as their clerks. Supreme Court clerkships are very prestigious. They go only to people who finished at the very top of their classes at the nation's elite law schools.
Harriet Miers clearly does not pass this test. She went to Southern Methodist Law School. She was not on the Law Review. She has never held a job, other than White House counsel, that is remotely prestigious. In short, while she may well be an above average attorney, her resume and qualifications are decidedly mediocre compared to nearly everyone else (except perhaps Alberto Gonzales) who was being considered for the job. She may be qualified for a number of important positions, but Supreme Court justice is simply not one of them.
I think there is the potential for bipartisan opposition to Miers' nomination. Many Democrats will be reluctant to do so, fearing that the alternative may be an even more conservative nominee, but they should oppose her nonetheless. This is blatant cronyism, and Bush should be called on it. Preserving the meritocratic nature of the Court is important. Moreover, because Miers has no constitutional law experience and will likely be intimidated by her colleagues and overwhelmed by her new position, she is very unlikely to blaze her own trail once on the bench. She is much more likely to defer to the judgment of people she finds more knowledgeable and intelligent than herself, meaning she could very easily become a reliable vote for the Scalia/Thomas position, whatever that may be. A more intelligent and independent-minded conservative would be less predictable, less likely to reflexively agree with Scalia or Thomas. The Court has a long history of very smart justices evolving and following their own intellectual paths, wherever it may take them. That's the way it should be.
Miers is simply not Supreme Court material, and her nomination should be rejected by the Senate.
Throughout his career in public life, Bush hasIndeed, because Bush has such a consistent record of doing this sort of thing, I suspect that the White House was caught off guard by the near universally hostile reaction to the nomination by conservatives. In the coming days we will no doubt see a concerted effort by the White House to reassure conservatives that Miers is one of them. James Dobson and Dick Cheney have already been recruited to do damage control. Unfortunately for the Bush administration, no amount of spin will be able to paper-over the fundamental problem with Miers, that she's not qualified for the job.
frequently turned to his inner circle for critical
appointments, relying on personal judgment
and favoring loyalists over the most sterling
resumes of better-known outsiders.
When Bush nominated John Roberts, I noted that "I'd much rather see an intelligent, qualified conservative on the Court than an undistinguished run-of-the-mill moderate." I was referring to Alberto Gonzales, but the point is equally applicable to Miers. I say this because I think the Supreme Court is a uniquely powerful and important institution. These justices are the ultimate arbiters of our founding document, the Constitution. Being a Supreme Court justice is an incredibly intellectually demanding job. And to the enormous credit of both parties, the selection of justices has, at least in modern times, been remarkably meritocratic. Positions on the Supreme Court are supposed to be reserved for our finest jurists, the smartest and most capable legal minds of our time. Now don't get me wrong, I'm sure Harriet Miers is a very smart and capable person, relatively speaking. But she is simply not a Supreme Court caliber attorney.
I suggested in a previous post that there should be a sort of informal "clerkship test" used when selecting nominees, i.e., Supreme Court nominees should be at least as intelligent as the clerks that will be working for them. They need not have actually been a clerk themsevles, as John Roberts was, but they should be on the same intellectual level as their clerks. Supreme Court clerkships are very prestigious. They go only to people who finished at the very top of their classes at the nation's elite law schools.
Harriet Miers clearly does not pass this test. She went to Southern Methodist Law School. She was not on the Law Review. She has never held a job, other than White House counsel, that is remotely prestigious. In short, while she may well be an above average attorney, her resume and qualifications are decidedly mediocre compared to nearly everyone else (except perhaps Alberto Gonzales) who was being considered for the job. She may be qualified for a number of important positions, but Supreme Court justice is simply not one of them.
I think there is the potential for bipartisan opposition to Miers' nomination. Many Democrats will be reluctant to do so, fearing that the alternative may be an even more conservative nominee, but they should oppose her nonetheless. This is blatant cronyism, and Bush should be called on it. Preserving the meritocratic nature of the Court is important. Moreover, because Miers has no constitutional law experience and will likely be intimidated by her colleagues and overwhelmed by her new position, she is very unlikely to blaze her own trail once on the bench. She is much more likely to defer to the judgment of people she finds more knowledgeable and intelligent than herself, meaning she could very easily become a reliable vote for the Scalia/Thomas position, whatever that may be. A more intelligent and independent-minded conservative would be less predictable, less likely to reflexively agree with Scalia or Thomas. The Court has a long history of very smart justices evolving and following their own intellectual paths, wherever it may take them. That's the way it should be.
Miers is simply not Supreme Court material, and her nomination should be rejected by the Senate.
posted by A.L. at 10:41 PM
5 Comments:
That's a bit of a precipitous response for a self-professed empiricist, isn't it? Isn't it possible--even if it's not likely--that Miers will perform brilliantly at the Senate hearings and convince skeptics that she does, in fact, have what it takes to serve on SCOTUS? I admit that I'm one of those skeptics, but to call for her rejection one day after her nomination--without even giving her the chance to pass (or fail) in person the clerkship test that you yourself suggest--strikes me as very unfair and narrow-minded.
You have a fair point. I'd argue, however, that the sort of qualifications I'm talking about are not the kind you can demonstrate at a Senate hearing. They're the kind you have to demonstrate through the whole of your legal career. Perhaps Miers does have the potentional to be an impressive jurist, but she certainly has not demonstrated that through real-world accomplishments. My point is that there are any number of people who have already demostrated that they have the ability and experience to be great Supreme Court justices. Bush should have chosen one of them.
"Being a Supreme Court justice is an incredibly intellectually demanding job. And to the enormous credit of both parties, the selection of justices has, at least in modern times, been remarkably meritocratic."
You mean like Clarence Thomas?
I've come to believe that the conservatives that are freaking out (I'm not one of them) are doing so for the SOLE reason that they wanted an in-your-face firebrand nominee that would provoke a fight in the Senate. I suspect anything short of Ashcroft, Bork, or Starr (or even Dobson!?) would be "unimpressive" to them, and the accusations of a "safe pick" would still fly. The cronyism charge is just cover.
Furthermore, a hell of a lot of them are total hypocrites, because they obviously WANT an activist judge, but SAY they want a "strict constructionist." Picking a sure bet to overturn Roe v. Wade is most definitely not a "constructionist," no matter what side of the issues you're on. I'm thoroughly disgusted by many of them, and their intellectual dishonesty or just plain old talking out of their a$$es.
I don't have a problem with her qualifications, nor do serious people on the right. (Wait, that didn't sound right! "Other" serious people...eh, whatever.) The flying wingnuts complain about that, but it's because they didn't get Judge O. Verturn Roevwade. (For the record, I'm very much pro-life, but I abhor political/ideological rulings on the bench.)
Thomas probably wasn't as qualified as many of the other justices on the court. But he did graduate from Yale Law School, and he was a federal circuit court judge prior to his nomination. Those two facts alone make him much more qualified to be a Supreme Court Justice than Harriet Miers.
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