President Bush has nominated White House counsel Harriet Miers to replace Sandra Day O’Connor on the Supreme Court. Bush made an excellent choice with Chief Justice Roberts. With this choice, he utterly blew it.
Miers is first and foremost unqualified for the job. She has an extensive list of accomplishments, but none of which qualify her to be an Associate Justice of the Supreme Court. She has not served on any of the Federal Circuit Courts. She may have a sharp legal mind, but she doesn’t have the paper trail to prove it.
As a nominee for a Circuit Court, she would have been an acceptable choice. But nominating someone of her limited qualification to the nation’s highest court is a major strategic mistake. The Democrats are out for blood, and the Republicans aren’t going to have much more than lukewarm support for Miers.
Miers is not going to receive much support from conservatives who were hoping for someone in the legal and intellectual mold of a Scalia or a Rehnquist. Instead, we got one brilliant legal mind and one more Souter. The last thing that conservatives want on the Court is another Souter when so many critical legal issues hang in the balance.
Miers is not an adequate nominee, and President Bush has blown it with the base. For their own political good, Republican Senators had better start telling the President to find a more appropriate pick.
All that being said, I find this pick mystifying. Miers just turned 60 years old, not exactly ready to retire but potentially giving up at least a decade for the Bush legacy on the Supreme Court. Other women with judicial experience and/or a stronger track record of conservatism could have been found. She didn’t graduate from a top-drawer legal school (SMU), and she didn’t clerk for a highly influential jurist (US District Judge Joe Estes).
Not only does Harriet Miers not look like the best candidate for the job, she doesn’t even look like the best female candidate for the job. If judicial experience is a liability, why not Maureen Mahoney, who is younger, has argued cases at the Supreme Court, and worked within the Deputy Solicitor’s Office after clerking for William Rehnquist? Better yet, why not nominate J. Michael Luttig or Michael McConnell, with their brilliant and scholarly approaches to the law and undeniable qualifications through years of judicial experience? Why not Edith Hollan Jones, if Bush wanted to avoid the confrontation that Janice Rogers Brown would have created?
Miers may make a great stealth candidate, but right now she looks more like a political ploy. Color me disappointed in the first blush.
I’m sure that she is a capable lawyer and a loyal aide to President Bush. But the bottom line is that he had a number of great candidates to choose from, and instead of picking one of them–Luttig, McConnell, Brown, or a number of others–he nominated someone whose only obvious qualification is her relationship with him.
UPDATE: Senator Thune has this to say:
The nomination and confirmation process of Judge Roberts was a fine example of the Senate performing its Constitutional responsibility of advice and consent. Just as Judge Roberts received a fair up-or-down vote after a thorough examination by both Republicans and Democrats, I expect the same treatment for Harriet Miers. However, I will reserve judgment on this nominee until the Senate studies her qualifications. It has been my expectation that President Bush would nominate someone in the mold of Justices Scalia and Thomas and it is my hope that Harriet Miers will prove to be such a person.
I think it’s a prima facie case that Miers does not have the requisite qualifications to be a Supreme Court nominee, but Thune and the rest of the Senate does owe her at least a fair hearing. Sadly for the Republic, I don’t think there’s anything that a fair hearing would reveal that would make her seem any more qualified than she already appears – and there’s a good chance that things will come out that will make her seem less qualified.
Based on a previous job as a lawyer for big entertainment companies, her positions on such important issues as intellectual property law, the DMCA, fair use, and other key issues are likely to be less than palatable. The more I look, the less I see to like. The President blew it, and he blew it bigtime.