Harriet Miers: Not So Mediocre?

This morning, I presented the majority view of conservative bloggers and opinion leaders that Harriet Miers was a less-than-stellar nominee for the Supreme Court.

Beldar and PoliPundit issue dissenting opinions.

The former, especially, refutes the “not qualified” label that most have bestowed on Miers. I agree with his reasoning and, indeed, remarked that “her resume is impressive enough” in my initial posting on the subject. Miers is a perfectly competent lawyer who has been quite successful throughout her career, despite having spent the formative part of it in an era when women simply did not become prominent attorneys, least of all in Texas. And she did that long before George W. Bush was in any position to help her.

Still, the former academician in me does expect a Supreme Court nominee to have a “well-considered ‘judicial philosophy'” a’la Randy Barnett. Perhaps that is a luxury of those who live in an ivory tower but it is the most effective way to guage what type of Justice the appointee will make. This is especially important for someone without a substantial tenure as an appelate judge. Pragmatism is likely a good and necessary trait in a litigator. It is likely a recipe for inconsistency as a judge.

Beldar notes that Miers’ resume compares quite favorably with Sandra Day O’Connor and Justice Lewis F. Powell, Jr. at the time of their nominations. To which conservative critics will say: Exactly. Both are bright, decent, hard-working citizens who served their nation honorably. Neither, however, had a consistent view of the Constitution.

To return to now-Chief Justice John Roberts’ sports analogy, judges are umpires. I prefer one whose strike zone is the same from inning to inning and game to game. Ideally, I prefer one whose strike zone is the same as that in the Official Rules of Baseball. If I’m going select an umpire for the World Series who has never called a game before, I would at least like to know what their view of the strike zone is. If they tell me they’ve never thought about it much because they’ve been too busy working, I am unlikely to be impressed.

Related:

Harriet Miers: Upon Further Review, Still Mediocre
Harriet Miers Nominee for Supreme Court
Bush’s 2nd Supreme Court Pick Expected Soon
President Working on O’Connor Replacement

Update: Steven Taylor seconds my thoughts above observing,

I think that SCOTUS should be populated with thinkers. It is a place where we should seek to place our best legal minds. Indeed, on one level, I would prefer a brilliant liberal on the court than a mundane conservative.

Quite so. Ultimately, Taylor deems Miers “a fairly run-of-the-mill candidate.” I would note, though, that by recent standards she is not even a run-of-the-mill Supreme Court candidate.

That is, my views are not mutually exclusive: She is a bright woman with an impressive resume; just not bright and impressive by the standards of the august body to which she has been nominated. To make yet another sports analogy, my reaction would be similar if the Dallas Cowboys were to announce they had signed Major Applewhite to be their new quarterback.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Anderson says:

    Not one of Beldar’s better moments.

    SDO was drastically underqualified compared to other justices then serving, but her legislative experience was a welcome quality. And, damn, she graduated 3d from Stanford, with Rehnquist 1st.

    And as you say, “she’s as good as O’Connor” is not going to cheer up my rightwing friends. Just like Orrin Hatch’s “unconditional” support–that will be the kiss of death to any wavering conservatives ….

    The lady’s job was recently briefing reporters on Barney the dog’s horseshoes technique. This is as good a time as any for conservatives to prove that they’re not Bush idolaters.

    (Looking for the first pol to offer his “unqualified” support for Miers ….)

  2. I would note, though, that by recent standards she is not even a run-of-the-mill Supreme Court candidate.

    I cocnur. I perhaps understated her less-than-stellarness. Certainly as an SCOTUS nominee, we are talking a far less than average nominee.

  3. Jim Henley says:

    To return to now-Chief Justice John Roberts’ sports analogy, judges are umpires. I prefer one whose strike zone is the same from inning to inning and game to game. Ideally, I prefer one whose strike zone is the same as that in the Official Rules of Baseball. If I’m going select an umpire for the World Series who has never called a game before, I would at least like to know what their view of the strike zone is. If they tell me they’ve never thought about it much because they’ve been too busy working, I am unlikely to be impressed.

    Ooh, well put! Best thing I’ve read on Miers yet.

  4. Lurking Observer says:

    James Joyner:

    While I agree that we should have our “best and brightest” on the Supreme Court, I have to wonder about the preference for academics, especially when you set up the choice between, it seems, thinkers and do-ers.

    Are we really sure that thinkers lacking practical experience or understanding the realities of law practice (including its impact) is what we want of our Supreme Court?

    Leaving aside Ms. Miers’ specifics, I have to wonder whether brilliant theorists are necessarily the best choice? It’s sounds suspiciously like “philosopher-kings.”

    The track record of such thinkers, if such they be on SCOTUS now, includes the startling Kelo precedent, and flip-flops on a number of other issues, not to mention the nakedly pragmatic (yet fumblingly handled) “affirmative action for 25 more years” bit.

    Would a military thinker without practical experience really be superior to an experienced general (or colonel) in combat? Is the most brilliant theoretician on anatomy really be better at performing surgery than an experienced surgeon from a less-stellar medical school?

    Again, I’m not suggesting Miers is right for the job. I’m merely wondering whether academicians are the right ones.

  5. James Joyner says:

    LO: The problem is that the Supreme Court performs a very unique role. It isn’t, as being a Combatant Commander in the military, simply the pinacle of a legal career. It is sui generis.

    I want my battle plans drawn up by generals because they have spent their careers learning to make battle plans. Similarly, I want my Constitution safeguarded by constitutional scholars. That doesn’t preclude people with practical experience–John Roberts, William Rehnquist, Antonin Scalia, Clarence Thomas, and others have had it. It just requires someone who has spent a number of years thinking through the issues, whether as an academic, as an appelate court judge, or as a Con Law litigator.

  6. Indeed. It is possible to be a thinker/intellectual without being an academic.