A Chequer-Board of Nights and Days

One of the more depressing aspects of the Miers nomination is the fact that we are deprived of a major and serious argument over the issue of judicial philosophy. Longtime readers know that I believe judicial philosophy should largely not enter into the consideration of a particular nominee. Rather, it should be the nominee's character and qualifications that we should discuss with the general proviso that the President of the United States--be he/she Republican or Democrat--has won an election and has the right to expect at least some degree of regard for his/her judicial philosophy.

Of course, we do not live in such a world. Rather, we live in a world where judicial philosophy is a key sticking point. The Roberts confirmation process was notable for perhaps defusing the arguments of people like Senator Charles Schumer, who has sought to make ideology a major point of contention in the nomination process. With his skillful answers and his broad and deep understanding of constitutional law, the new Chief Justice forced the debate back on the ground of qualifications and won it hands down.

Now, with the nomination of Harriet Miers, we are left wondering not only about the nominee's qualifications for the Supreme Court, but also opening the door anew to issues of ideology. And as Jim Copland points out, this has been done in a less-than-desirable manner:

Her naysayers notwithstanding, Miers does have a distinguished legal career. It's unlikely that she would turn out to be a left-leaning jurist like David Souter, whom the first President George Bush nominated on others' recommendations. Miers might indeed wind up an outstanding member of the court, and as a lawyer with deep experience as an actual litigator of business issues, she would bring a useful expertise to a court filled with academics and government lawyers.

The problem, however, is that as impressive as Miers' background is, she is undeniably less qualified than many others the president passed by. That's not because she didn't go to one of the elite law schools that her prospective peers on the court attended - the attitudes that permeate these places are in large part responsible for the imperial judiciary that many of us who work in legal reform so deplore, and it's not as if Southern Methodist University isn't a fine academic institution.

Miers' lack of service as a judge is also not in itself much of an issue: Chief Justice William Rehnquist lacked judicial experience, and Chief Justice John G. Roberts and Justice Clarence Thomas had very short tenures on the federal bench. And it's salutary indeed to have some members of the Supreme Court who, like Justice Sandra Day O'Connor herself, have not spent most of their adult lives inside the Beltway.

Despite these caveats, though, no objective observer could claim that Miers is another Roberts, who is hailed as the top lawyer of his generation. No objective observer could claim that she is as well prepared for the Supreme Court as, say, Michael McConnell, Frank Easterbrook, Samuel Alito or Michael Luttig, who have impeccable records on the bench or are the undisputed leaders of major fields of jurisprudence.

Nor is it just white men who overshadow her. Her fellow Texans Edith Jones and Priscilla Owen have similar academic backgrounds to Miers, and similar business law experience, but distinguished careers on the bench. The chief judge of the Sixth Circuit Court of Appeals, Danny Boggs, is of Hispanic (Cuban) ancestry, a principled conservative jurist and a prodigious intellect.

Miers is a fine lawyer, and she broke the glass ceiling for women in Texas. But it's impossible to conclude that she would be the president's nominee but for their close personal ties, her gender and her lack of a discernible paper trail.

And there's the rub: Not merely does President George W. Bush's choice smack of personal favoritism and a capitulation to the identity politics his party professes to reject, but in nominating Miers, the president has cowed to the Democrats' outcome-based view of the law, and their belief that as a minority party they have the right to scuttle any potential justice who has a known opinion that contradicts their preferred results.

Harriet Miers may yet turn out to fit the mold of Justices Clarence Thomas and Antonin Scalia, whom Bush held out as his ideal jurists on the campaign trail, but her chief virtue as a nominee is that she lacks written opinions that shed any light on her theory of jurisprudence. The president's decision to nominate someone with such a lack of a record is disappointing, since it implies that he's not willing to make a vigorous, public defense of the consistent conservative critique of judicial activism.

Quite so. And even if the intention were to make a vigorous, public defense of the originalist/strict constructionist school of thought, Harriet Miers is a flawed vessel with which to make that defense. Again, I have no problem believing that Ms. Miers is intelligent and accomplished. But she shows no evidence of having thought deeply about constitutional principles and theories of jurisprudence. And forgive me for potentially sounding snooty, but these qualities are important in the debate that both Copland and I wish we could have had.