President Bush struck a blow for diversity on the Supreme Court by picking White House Counsel Harriet Miers as his latest nominee. Bush thus made a strong statement that the Court has room for highly distinguished justices and not-so-distinguished justices, for nominees who have made their reputations in the wider legal world and for nominees people have hardly heard of, for world-class lawyers and for lawyers he happens to know and like.
After the nomination of John Roberts, Bush boosters hailed the president for bucking the political imperative of selecting a woman or a minority and for instead caring above all about high qualifications. They now have to take all that back. We don’t know much yet about Harriet Miers, except that she is the anti-Roberts, a nominee whose credentials are less than sterling and whose qualifications for the Court are less than obvious.
It might turn out that she is an outstanding justice. But there is no way for anyone besides President Bush’s immediate circle to know it. Of course, other Supreme Court justices have come without experience on the bench. Chief Justice Earl Warren was governor of California. Harriet Miers was “an elected member of the Dallas City Council,” as Bush put it in his announcement of her nomination.
Watching Bush strain to pump up her accomplishments was cringe-making. He said she has tried cases “before state and federal courts”! She has “argued appeals that covered a broad range of matters”! She was head of the Texas Lottery Commission and “insisted on a system that was fair and honest”! She was a leader with Child Care Dallas, Meals on Wheels, and other charitable groups! She has a law degree! From Southern Methodist University!
Of course, Miers currently has a heavy-hitting job as White House counsel. That is testament to a certain legal acumen, and she has apparently impressed people with whom she has worked closely. But given the significance of a lifetime appointment to the nation’s highest Court, this is a rather thin qualification. Indeed, the most important reason Miers was picked is that Bush is comfortable with her.
It is only natural that relationships will be important to any political leader. But Bush needs to widen his horizons. Blocked from putting one of his Texas buddies, former White House counsel Alberto Gonzales, on the Court by conservative opposition, he went to another one of his Texas buddies, current White House counsel Miers. Having selected the head of his vice-presidential search team to be his vice president, he now picks the head of his Supreme Court search team to be on the Supreme Court.
There is something to be said for having a Court that is not all white men. But Miers has a whiff of an affirmative-action selection about her that is unnecessary. When Sandra Day O’Connor was tapped in 1981, she was one of the few qualified women in the country. Now, there are dozens and dozens of women on appellate courts, on state supreme courts, and on law-school faculties whose qualifications would be beyond question. There is no reason to go to a nominee who might have been on the pioneering edge 15 years ago, when she was first woman head of the Texas state bar, but has since been surpassed by women who have reaped the benefits of decades of greater opportunity.
Democrats have an interesting choice. They can accept Miers on the theory that as an unknown quantity she is the best they can hope for from Bush, given that his short list included well-established, intellectually hefty conservatives. Or they can try to deal Bush a blow by attacking her as a crony. If they choose the first course and Miers votes as a down-the-line conservative on the Court, Bush’s pick will, over time, be seen as politically canny. Now it looks like the latest act of an overly insular, increasingly off-key White House.