Get A Dog

Horace Cooper
Posted: Oct 18, 2005 12:05 AM

Former President Harry Truman once said, "If you want a friend in Washington, get a dog." Harriet Miers is finding there's a lot of truth to this axiom. Acting more like reality TV contestants waiting to vote their competition off the island than the professional opinion givers they are charged by the public to be, the Washington talkers and opiners (particularly those on the right) have marched in lock step toward a conclusion that Harriet Miers isn't fit for the job of Supreme Court Justice.

It's amazing how quickly the tide turns. In the spring of this year, she was given a favorable write up (Washington speak for puff piece) in the Washington Post's Style section. Unlike much of the present criticism, then she was "defined by hard work, dedication and client loyalty." At the time of her appointment as White House Counsel, the President's assertion that "Harriet has the keen judgment and discerning intellect necessary to be an outstanding counsel" went unchallenged. Today some claim that she isn’t fit to play an Associate Justice on NBC's the West Wing. Back in the spring, the Post acknowledged that the job of White House Counsel "is a job that has an impact on almost every major decision made in the White House" yet now the position is belittled as insufficient training to play in the "big leagues."

While it's been said that Washington is fickle, who would have guessed that you’d need to carry a blackberry to keep up with who's up and who's down. When you're up in Washington, you're like Leonardo DiCaprio "King of the World." Only the best will be said about you, but when you're on the outs with Washington, sometimes even the lamest things will be said about you and go unchallenged. Miss Miers has had her ups and now it appears that she is getting to experience her downs. And she is also getting to find out about the wonderful world of anonymous critics. Ah yes, the anonymous critic; those individuals who stood by silently before but now feel compelled to speak up because the stakes are so high. Except in order to "maintain their viability" they must do so off the record.

Actually, these antics would be laughable if one didn't realize how painful Washington's game of character assassination can be for those experiencing it. And unfortunately, now that it's open season on her, there's almost a race to get out the most fallacious claims possible.

Consider: one Washington insider opined that Harriet Miers is either a closet Democrat or at least maintains sympathies for the Democrats because as late as 1988 she made contributions to Al Gore's presidential campaign. That was nearly two decades ago, yet it's presented as a legitimate criticism of the counsel to a Republican president. How is this for another take on those fact, the Texas governor, Republican Rick Perry was Al Gore's state campaign chairman when Miss Miers was making that political contribution. In Washington speak, we'd say that he had gone "all in" for Al Gore and yet no one doubts his conservative bonafides. In fact, a better question is why has the national media allowed Al Gore to walk away from his pro-life, pro-defense moderate Democrat views in order to become the poster child. Harriet Miers has made a journey that hundreds of thousands of former Democrats have made including former President Ronald Reagan. Before her nomination this type of journey was welcomed, celebrated and recognized as the cause of the GOP’s robust growth.

Another beltway pundit got attention with a news piece which included the money quote "she's not even second rate, but is third rate." As part of the piece, the prognosticator attacked Harriet Miers legal background claiming it was below par because she was "with an undistinguished law firm; never practiced constitutional law; never argued any big cases; never was on law review; has never written on any of the important legal issues." You have to chuckle a little when you realize that Miss Miers firm, Locke Liddell & Sapp is the product of a merger between two old and very well-regarded firms -- Locke Purnell in Dallas and Liddell Sapp in Houston and the 400 plus lawyer firm has a number of "3rd rate" clients whose names professional pundits may not recognize like Microsoft and Disney. As for her schooling, Miss Miers was an articles editor on the Southwestern Law Journal the oldest and by far most prestigious law review at SMU Law School and clerked for Judge Joe E. Estes, a conservative Republican federal district judge in the Northern District of Texas. And with regard to constitutional matters, in 2000 Harriet Miers, then the Bush-Cheney 2000 general counsel was lead counsel in a successful lawsuit ending a 12th Amendment challenge to Vice-President Cheney's eligibility to receive Texas' electoral votes. As it happens this was one of the very few reported cases in history dealing with the Twelfth Amendment to the United States Constitution.

And still yet another Washington insider has set up a web petition seeking to get supporters to join him in urging President Bush to withdraw her nomination calling it "an unforced error." Ironically -- and I'm not making this up -- three months earlier this same opinion leader posted an announcement that Miers was the likely "back up" candidate for the Supreme Court vacancy that ultimately Roberts was named to. Obviously one of the risks of being a pundit is sometimes you get these things wrong. But when you look at his glowing praise at the time, you see that he concluded with "if President Bush's first choice of nominee should somehow stall or fail - then Miers might well be his back-up nominee. Scoff if you like. But if it happens, please remember that you read it here first." Today she's an unforced error, back then while Miss Miers was considered part of the "in crowd" and still popular the pundit wanted to make sure he was given credit for his remarkable prediction abilities.

Regardless of what one thinks about the merits of her nomination to the Supreme Court, it is obvious today that Harriet Miers isn't part of Washington's in crowd. But even given Washington's penchant for being fickle, sometimes the politics of personal destruction can be a bit much to take. And maybe when she joins the Supreme Court and demonstrates her mastery of conservative jurisprudence the cool kids in Washington will give her another chance. Then again maybe not. In any event, it doesn't seem to faze Harriet Miers. In fact, her dogged determination is one of the qualities President Bush must have identified when he once referred to her as a "pit bull in size 6 shoes?" Let's hope so.

Horace Cooper is an assistant professor of constitutional law at George Mason University and teaches a course on "the Modern Supreme Court Confirmation Process"