Harriet Miers nominated for Supreme Court (UPDATED ALL DAY)

If there’s one thing we know about President Bush it’s that he places a very high value on trust and personal loyalty up to and beyond a fault. Today Mr. Bush nominated White House counsel Harriet Miers for the Supreme Court of the United States:

WASHINGTON (AP) – President Bush plans to nominate White House counsel Harriet Miers to replace retiring Justice Sandra Day O’Connor on the Supreme Court, reaching into his loyal inner circle for a pick that could reshape the nation’s judiciary for years to come.

If confirmed by the Republican-controlled Senate, Miers, 60, would join Justice Ruth Bader Ginsburg as the second woman on the nation’s highest court and the third to serve there. Miers, who has never been a judge, was the first woman to serve as president of the Texas State Bar and the Dallas Bar Association.

Her lack of a judicial record makes it difficult to determine know whether Miers would dramatically move the court to the right. White House officials, who revealed Bush’s pick on condition of anonymity because they were not authorized to pre-empt the president, said Miers is conservative enough to satisfy the president’s supporters and does not have a lengthy legal record that could embolden Democrats.

Senate Minority Leader Harry Reid, D-Nev., had urged the administration to consider Miers, two congressional officials said.

Ms. Miers has had a distinguished legal career. She’s clearly not a lightweight. None of the regular blogospheric sources have commented to any extent on her so far. As commentary becomes available I’ll be updating this post throughout the day.

She certainly knows what to expect from her confirmation hearings—she helped to prepare now-Chief Justice Roberts for his. And I’m sure that over the next few days reporters, pundits, and bloggers will be examining every memo, note, law review article (if any), and grammar school penmanship exercise for evidence of her beliefs and judicial philosophy.

I suspect that the real question will be whether Senate Democrats consider the fact that she was nominated by this president as reason enough to oppose her. I certainly hope not but the atmosphere in Washington seems to have grown pretty poisonous.

Ms. Miers’s nomination also presents a challenge for the Republican base. Her lack of a clear paper trail leaves it an open question as to whether President Bush has fulfilled his campaign pledge to nominate a candidate in the mold of Scalia and Thomas or not.

Tag: Harriet Miers


Blogs for Bush has a thorough C. V. for nominee Miers.

Jack Kelly of Irish Pennants is disappointed with the nomination and points out that, as with Dick Cheney, the head of the search committee ended up the nominee.

Weapons of Mass Distraction wonders:

Is there some kind of hidden strategy here? Is she a sacrificial lamb who’s being thrown to the Democrats so that Bush’s next choice, his real pick, will make it through the gauntlet?

I think that Ms. Miers is the real pick. What in this president’s history suggests he’s feinting?

Right Wing News is very unhappy with the nomination.

S. Scott Johnson of Coldheartedtruth has a solid post on the nomination:

Well I called this one… and it really makes sense. This would be one of those nominations which puts the pressure on the Democrats to argue her nomination based on ideological grounds, rather than by misrepresenting her judicial record… because, of course, she doesn’t have a judicial record.

I think that’s about right. I also expect complaints about cronyism.

From TalkLeft:

As I recall, going back to law school days, Chief Justice Rehnquist was White House Counsel when he was appointed to the Supreme Court.

NBC’s Today Show, however, just opined that she has no paper trail, and that may be the point. She vetted Roberts and other potential nominees for Bush, so that gives some indication. Sen. Schumer essentially said she was an unknown. She should have papers produced in the White House, but they can claim executive privilege as to some, if not all.

Also, half of all Supreme Court nominees had no prior judicial experience. Being a real lawyer, however, would be a help.

I sincerely wish they had expanded on that. Why isn’t she “a real lawyer”?

A Confederate Yankee is unimpressed.

David Bernstein of Volokh Conspiracy likes the fact that Miers has not served on the federal bench and offers the following analysis:

What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR’s primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn’t the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR’s nominees moved the USSC generally to the Left. Thoughts?

Ed Morrissey of Captain’s Quarters is disappointed:

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.

Ann Althouse: “We’ll see.”

Baseball Crank is less than thrilled:

But there are a large number of reasons to be less than thrilled with Miers either as a nominee or as a prospective Justice. First, she’s not young; at 60, Miers is older than almost all of the widely-discussed candidates. Second, Bush passed over a number of people well-known to be brilliant academics, appellate advocates and/or appellate judges to get to her, including Michael McConnell, Miguel Estrada, J. Michael Luttig, Danny Boggs, and Edith Jones. Miers may well be highly intelligent, but she has no such reputation. Third, Bush also passed over experienced trial judges – Jones, Emilio Garza, Edith Brown Clement. There’s actually a lot to be said for having a Justice who has trial-level experience, since the Court does, after all, sit atop a system of courts, and a Court with nobody who has sat at the point where the court system actually interfaces with the general public – where factual evidentiary records are developed, juries are instructed in the law, injunctions are granted, and criminal defendants sentenced. Of course, Miers was a litigator for years, so that’s a fair substitute for experience as a trial judge on the civil side, but I’m not sure if she has any criminal experience. And much of her career path has been spent as an administrator, running a law firm, running the Texas Bar, running the Texas State Lottery, and working in the White House for five years. She presumably hasn’t seen a courtroom in a decade.

John Hinderacker of Poweline is disappointed but wonders whether the Democrats will filibuster the nomination. I believe that would be a mistake. Is non-confrontational governance a good reason to support the Miers nomination?

Josh Marshall of Talking Points Memo, usually a good barometer of the Democratic Party line, suggests that the line of attack on Miers will be her close association with White House policies over the last five years.

Tom Goldstein of SCOTUS Blog quickly posts some initial thoughts while on the way to court:

The nomination obviously will be vigorously supported by groups created for the purpose of pressing the President’s nominees, and vigorously opposed by groups on the other side. But within the conservative wing of the Republican party, there is thus far (very early in the process) only great disappointment, not enthusiasm. They would prefer Miers to be rejected in the hope – misguided, I think – that the President would then nominate, for example, Janice Rogers Brown.

That’s certainly what the blogospheric commentary has reflected so far.

Michelle Malkin is utterly underwhelmed. And has a round-up of her own.

This Daily Kos thread is, as expected, pursuing the cronyism angle.

The Talent Show suggests that Bush owed Miers a favor related to rumors that his father used a little pull to help him get into the Texas Air National Guard.

KipEsquire of A Stitch in Haste thinks it’s a disastrous nomination citing Miers’s lack of judicial experience and the likelihood of the nomination to invite charges of cronyism.

I’ll continue to update this post throughout the day as more reactions come in. From the dismay of movement conservatives and libertarians who have been voting Republican in the hopes that Bush would pursue their respective agenda and the generally weak disapproval of Democratic partisans this nomination may have been more politically astute than initially met the eye. Getting your nominees confirmed is the sine qua non. If you can do it without burning the house down, so much the better.

I continue to be amazed at the similarities between the Clinton presidency and the Bush presidency. Just as liberals continued to believe, incorrectly, that Clinton was a liberal conservatives and libertarians have continued to hope that Bush was as conservative or libertarian as they were.

I think that Ann Althouse’s initial reaction was the wisest: let’s wait and see.


Jack Balkin of Balkinization has an excellent analysis of the Miers nomination. He identifies three important qualifications that Miers possesses:

  1. She’s a woman and, consequently, preserves the previously existing gender balance on the Court.
  2. The president trusts her.
  3. She doesn’t have a paper trail.

Read the whole thing.

Practicing Texas lawyer Beldar has a generally favorable reaction to the Miers nomination and notes that she won’t provide any Souteresque surprises (at least not to the president) and, with her experience as a practicing attorney, she’ll bring much-needed diversity to the Court.

Jon Henke of QandO Blog has his own round-up and commentary on the nomination.

Shay of Booker Rising:

I say: the Supreme Court is no place for on-the-job training. Any nominee to the high court should have judicial experience, so I oppose this nomination on qualifications grounds. Don’t let it be said that Republicans and conservatives don’t favor affirmative action when it suits their purposes.

Brad Plumer:

I can’t say I’d ever even heard of Harriet Miers, but given that she’s White House counsel, I’m guessing Bush just wanted someone who agrees with his own dictatorial view of presidential powers in wartime.

Joe Gandelman of The Moderate Voice, of course, has his own excellent round-up and commentary on the nomination. He concludes:

And then there’s the biggest and final issue: does this signal that the administration- battered by natural, political and legal crises – is turning a bit more towards a less confrontational style of governing as it moves into its final years?

Yes, I certainly believe that’s part of what’s going on but I think that Beldar’s point is a good one, too. Ms. Miers’s views may not be known to the punditry but the president undoubtedly believes he knows what they are.

Uh, put Hugh Hewitt in the “Yes” column.

Lawrence Solum of Legal Theory Blog quotes from Federalist No. 76. I think we can infer that he disapproves of the nomination.

The Angry Clam at Patterico’s Pontifications takes on the Miers supporters.

Professor Bainbridge wonders whether Justice-designate Miers has the appropriate judicial temperament using a quotation from her he found on Westlaw.

Rick Moran of Right Wing Nut House says that the Miers nomination is “an arrogant choice”.

Scott Ott of ScrappleFace has a typically ScrappleFacian reaction:

(2005-10-03) — A clearly disappointed President George Bush this morning announced that he had failed to locate a total stranger to replace retiring Supreme Court Justice Sandra Day O’Connor, and was forced to settle for someone he knows and trusts.

Well, yes.

Stygius has a solid post on the nomination which I suggest you read. I don’t think I’m quite as sure that the Democrats’ proper strategy is opposition. I doubt that the Senate Republicans will “go nuclear” over Miers—if the blogosphere is any gauge her support won’t be that ardent. But will the next nomination be more appealing to Democrats? Especially in the light of the fact that she was apparently on Harry Reid’s “Acceptable” list?

The Anchoress believes that the Miers nomination is a “head-fake” and that Bush is playing a long game. I’m not so sure. I think that with Bush what you see is what you get.

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