Let's put today's utterly-puzzling nomination of White House Counsel Harriet Miers to the Supreme Court in historical context.

"Look, Harriet! It's some of the Evangelical dupes who rabidly support me!"

In fairness to the President, the Constitution (Article III, Section 1) lays out no formal requirements at all for serving on the Federal bench. In fact, not only is no judicial experience required but no legal experience is required. As late as 1954, there were Justices on the Court who had legal experience but had never set foot in a law school classroom (the last "country lawyer" was FDR appointee Robert H. Jackson). And appointing Presidential cronies is obviously not without precedent either. The controversial Court tenure of Abe Fortas in the late 1960s began when Lyndon Johnson decided to appoint the man who mounted the legal defense of his fraudulent Senate campaign (in which 200 mysterious Johnson votes were cast in alphabetical order as the polls closed) to the nation's highest court. Hugo Black was a Senator (not to mention a former Klansman) when FDR nominated him.

Certainly it is possible to deal with issues of Constitutional law at a very high level without having mountains of legal training – in fact, most professors of Constitutional Law are not lawyers but Political Scientists. I'm not going to argue that Harriet Miers is a baffling appointee because she has never been a judge. I will argue, however, that her utter lack of any apparent qualifications beyond "President Bush's confidant" is going to turn her hearings into a cluster-fuck of Borkian proportions.

I urge our readers to prove me wrong, but I'm almost certain that at no point in the last 100 years has someone been appointed to the Supreme Court without having previously done at least one of the following:

A) Served on the Bench at some level
B) Held elected office
C) Held appointed office (Senate-confirmed)

Even Fortas, the quintessential crony nomination, had held the Senate-confirmed appointed position of Undersecretary of the Interior under FDR. Miers is, for all intents and purposes, as qualified to hold a Supreme Court position as the most prominent lawyer on the courthouse square in every small town in America. She has done absolutely nothing except graduate law school and be Bush's pal. Her public service record consists of one term on the Dallas City Council and five years under Bush as the Texas Lottery Commissioner from 1995-2000. This reads like the resume of a junior State Legislature candidate – and one not likely to win a primary at that.

I cannot imagine what utility the President hoped to get out of this nomination. The political opposition will oppose it vehemently – and if he's going to piss off the other side, he might as well at least please his core supporters. But hardcore conservatives are as puzzled, disappointed, and irritated by this "buddy system" pick as their political counterparts (ask David Frum).

She's not young (60) so she's not a legacy pick. She doesn't please any of the key constituencies upon whom the GOP will be relying to maintain control of Congress in just a few short months. She doesn't mollify liberals. She doesn't do anything at all for the President except raise the possibility that the Democrats will foot-drag the nomination into 2006, a brilliant move that would force the Congressional GOP in tough re-election races to either give their party the finger or commit electoral suicide (or, as they say on the Hill, pulling a Mesvinsky).

In short, President Bush comes up with a new way to prove himself a retard every day. You'd think that the one thing he might be consistently able to accomplish is to keep the Cato-types happy. Apparently even that is beyond him. Or maybe it is simply that he has no principles or ideology at all – at least none that can't be overpowered by his commitment to back-slapping patronage politics.

If I'm James Dobson or any of the religious whackos that the GOP relied upon so heavily in 2004, I'm fire-breathing mad right now. You got used like cheap vending machine condoms, people. You've been salivating for this opportunity to "fix" the Supreme Court for a decade, and when the opportunity arose Bush decided it was far more important to give his politically-inert friend a gift appointment than to cater to the concerns of the constituency that put his retarded ass back in Washington for a second term.

Bush could easily have appointed a die-hard conservative in the Luttig/Alito mold and, with the substantial Senate majority, gotten a confirmation. He just didn't want to. This is a microcosm of what history will remember about George W. Bush in 50 years – he excelled at awarding government contracts and appointments to his hangers-on. Stocking FEMA with one's old frat buddies is one thing – he's about to find out that the Supreme Court is another.


  • "An outspoken supporter of the Bush administration, she was a leader of its search for potential candidates to fill Supreme Court posts. A White House official said that at the same time, Bush considered her as a nominee without her knowledge."

    Sounds like the plot to a romantic comedy.

  • In moments like this, we must turn to Pat Buchanan:

    "For in selecting her, Bush capitulated to the diversity-mongers, used a critical Supreme Court seat to reward a crony, and revealed that he lacks the desire to engage the Senate in fierce combat to carry out his now-suspect commitment to remake the court in the image of Scalia and Thomas. In picking her, Bush ran from a fight. The conservative movement has been had — and not for the first time by a president by the name of Bush."

  • I'd say it reminds me of FDR's attempt to pack the Court with puppets so as to push through his sweeping agenda. Except…Bush has no agenda, apart from, as you say, rewarding the flunkies who tell him he's great, and the businessmen with whom he has dealt and will continue to deal once he's, praise Zeus, out of office. Is he simply throwing up a candidate who's so unqualified that he's forcing the hands of the Democrats on the Judiciary Committee to really go out there and beat up on a very nice-looking woman and thus, through the distorting eye of the camera, look like total assholes? Except that I can't see the Republicans giving her a free ride, since they can't, as they could with Roberts, point to several smart things she's said or accomplishments she's achieved. Head of the Texas Lottery? Why, not even Earl Warren or Thurgood Marshall could claim that!

    It's interesting that you compare this nomination process to Bork's, since here we have the opposite problem, with the same result–with Bork, we knew exactly who he was and exactly what he believed and it scared the bejesus out of us and the committee, who gave him his walking papers. ("No Constitutional Right to Privacy" is never going to be a popular position to take. Besides, doesn't "no unreasonable *search*" imply at least something along those lines? But I digress.)

    But with Miers, we have a cipher–a blank. Even if she has incredibly passionate ideals about abortion, affirmative action, etc.–even if, in secret, she's the Conservative Christian's wet dream, does she have the slightest idea how to apply those principles to a reading of the Constitution, or to articulate a legal interpretation thereof? A total lack of experience in such matters would suggest not. She'll be a tool of her clerks–those would be the people to watch in terms of how she'll vote.

    I agree, this could get really ugly, especially since Bush has REALLY forced Republicans to choose between their party loyalty to a man who is daily becoming more of a liability than an asset and whatever scrap of professional conscience they have as legislators elected by the people to make the best decisions for the good of the country. And in the case of folks like Arlen Specter, I think the latter might just win out in this case. You just know that throughout Washington yesterday, the phrase "No, really–who *actually* got the nod?" was used about a million times when the news was shared. Not good, this.

  • "does she have the slightest idea how to apply those principles to a reading of the Constitution, or to articulate a legal interpretation thereof?"

    Inability to tell one's ass from a hole in the ground hasn't stopped Clarence Thomas. That's the great thing about being on the supreme court – no matter how big of an idiot you are, no one can contradict you.

  • apparently James Dobson supports her:
    (taken from his website)

    "We welcome the president's nomination of Harriet Miers to the U.S. Supreme Court. He pledged emphatically during his campaign to appoint judges who will interpret the law rather than create it. He also promised to select competent judges who will 'not use the bench to write social policy.' To this point, President Bush's appointments to the federal bench appear to have been remarkably consistent with that stated philosophy. Based on the information known generally about Harriet Miers, and President Bush's personal knowledge of her, we believe that she will not prove to be a lone exception."

    scary… what does he know that we do not?

  • Dobson only got behind Miers b/c he had a special chat session with Karl Rove at King George's request. She is a wild card, and that scares the right far more than the left.

  • Dobson is a fool if he thinks he knows how this woman is going to act once on the bench.

    Wait…..the sentence holds if you chop off everything after "fool".

  • i certanly agree with what you say…however, my liberal sources tell me that hariet HAS been elected to a public office (although perhaps not a very important one)…


  • I am aware of her term on the city council, but that is so insignificant that I thought it utterly ridiculous to consider that as "experience" in elected office.

    Good catch, though.

  • Ed, do you think the democrats will oppose it? What the democrats don't like about it (cronyism, poor experience), is not at all what the far right doesn't like about it (no paper trail of being a far rightist). I think the democrats have to put Bush to the wall, but they also have to let her in.

    Because if they say "no experience", bush can turn around and say "well this Ms. Owening has plenty of experience….."

  • That's true, but the prospect of delaying the nomination is an underappreciated card in the Democrats' hands here. All they really have to do is drag their feet enough to say "Gee Mr. President, you can replace Miers with Priscilla Owens if you want, but I'm afraid we'd need a lot of time to review her record and we couldn't possibly vote on that until 2006….."

    Ed Bryant (the old Frist seat in Tennessee), Conrad Burns (MT), Rick Santorum, Lincoln Chaffee, and George Allen (VA) can all bend over and kiss their asses goodbye if they stick with their party and vote for some ridiculous Bush nominee in the midst of their impending re-election campaigns. The Great Leader has very quickly made the transition from Golden Medallion to albatross since the 2004 election. Whereas Bush could show up at a rally for five minutes and ensure some junior Congressman's victory in the past two elections, the same is apparently not going to be true next year.

    I just don't think Bush is holding any cards at this point. He doesn't have the credibility to ram through an ideologue, nor is the timing of this nomination favorable. His best bet was to nominate an intelligent, respected, and conservative person like Luttig (a Roberts clone) who the opposition would have had a hard time bashing. But if he sticks with Miers or nominates some idiot like Owen, he and his 40% approval rating aren't going to be able to carry it at this point. In 2002, maybe. While I understand your point, Bush simply isn't able to make good on many threats at this point. A good negotiator knows when the odds are against him and therefore compromises. Bush is not a good negotiator.

    The Senate republicans in liberal to moderate states who are running for re-election (see above) are as good as fucked already. That any of them will stick their neck out to help their lame-duck President get his way on some stupid judicial nominee is more than dubious. Whether or not the Democrats are smart enough to figure this out is equally so.

Comments are closed.