Harriet Miers Nominee for Supreme Court

White House counsel Harriet Miers will be nominated to the Supreme Court at an 8 a.m. press conference.

Bush expected to nominate Harriet Miers to Supreme Court (CNN)

Photo Harriet Miers is expected to be nominated as Supreme Court justice Monday morning. President Bush is expected Monday to name White House counsel Harriet Miers as his choice to replace retiring Justice Sandra Day O’Connor. Bush will announce his nominee at an Oval Office event at 8 a.m. ET.

If confirmed by the Senate, Miers, 60, would join Ruth Bader Ginsburg as the second sitting female justice on the bench. O’Connor became the court’s first ever female justice in 1981.

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. She also served on the Dallas City Council.

Her resume is impressive enough but it is unclear why Bush would nominate someone this old to the Court. In recent years, the trend has been to pick someone in their mid-40s or early 50s to increase the likelihood they would serve a long time.

Update: White House Counsel to Replace O’Connor (NYT-AP)

President Bush chose Harriet Miers, White House counsel and a loyal member of the president’s inner circle, to replace retiring Justice Sandra Day O’Connor on the Supreme Court, senior administration officials said Monday.

[…]

Without a judicial record, it’s difficult to know whether Miers would dramatically move the court to the right. The lack of a judicial paper trail may also make it more difficult for Democrats to find ground upon which to fight her nomination.
“There’s every indication that she’s very similar to Judge Roberts — judicial restraint, limited role of the court, basically a judicial conservative,” said Republican consultant Greg Mueller, who works for several conservative advocacy leaders.

White House press secretary Scott McClellan said the president offered the job to Miers Sunday night over dinner in the residence. He met with Miers on four occasions during the past couple weeks, McClellan said.

Both Democratic and Republican senators recommended Miers as a possible nominee, he said. Senators also suggested that Bush consider picking someone who was not a judge so the bench would be flush with justices from all walks of life.

“Harriet Miers, like Justice O’Connor, has been a trailblazer and a pioneer,” said Rick Garnett, a law professor at Notre Dame and former law clerk to the late Chief Justice William H. Rehnquist. “Like Justice O’Connor, Ms. Miers has broken through barriers in the law, serving as a leader and role model, and impressing everyone with her decency and her sharp intellect. She would be a worthy and appropriate successor to Justice O’Connor, and would carry to the court a commitment to constitutionalism, judicial restraint, and the rule of law.”

Bush to Announce Supreme Court Nominee Today (WaPo)

The White House will announce a nominee this morning at 8:00 a.m. to replace retiring Supreme Court Justice Sandra Day O’Connor, according to an administration official. There were unconfirmed reports this morning that his choice is White House Counsel Harriet Miers, once Bush’s personal lawyer and the administration official coordinating the search for a new justice.

[…]

Miers’s low-key but high-precision style has been particularly valued in a White House where discipline in publicly articulating policy and loyalty to the president are highly valued.

I find it amusing that, like Dick Cheney, the person coordinating the search turned out the be the best choice available.

Update: Judging from the TrackBacks below, other Bush allies are similarly underwhelmed by this selection. Considering that the type of nominees they are likely to pick for the Supreme Court is one of the chief factors many of us look at when assessing a presidential candidate, this is especially disappointing.

John Hawkins paints the worst case scenario:

Keep in mind that we’re talking about a woman who has donated to Al Gore, Lloyd Bentsen, & the Democratic National Committee before. You want a candidate who has “Souter” written all over her? You want a candidate who can’t be trusted to overturn Roe v. Wade? Well, her name is Harriet Miers.

This is undoubtedly the worst decision of Bush’s entire presidency so far.

John Hinderacker is more measured, calling her merely “a disappointment.”

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.

[…]

“Stealth” nominees have not turned out well for Republicans.

Quite true.

While President Bush is not playing from a position of commanding strength, to say the least, at the moment, virtual surrender to the Democrats on something this important is hardly necessary. I would have much preferred a noted conservative judicial scholar who, like John Roberts, commanded respect for his intellect and temperament even from ideological opponents.

Michelle Malkin has an extensive roundup, with few bloggers on the right even slightly impressed. Hugh Hewitt is one of the very few exceptions.

Judges Luttig and McConnell are the most qualified nominees out there, but I think from the start that the president must have decided that this seat would be given to a woman, and it is very hard to argue that she is not the most qualified woman to be on the SCOTUS for the simple reason that she has been in the White House for many years.

Frankly, that’s not much of an endorsement. The explanation is only slightly more satisfying:

Consider that none of the Justices, not even the new Chief, has seen the battlefield in the GWOT from the perspective or with the depth of knowledge as has the soon to be Justice Miers. The Counsel to the President has seen it all, and knows what the President knows, the Secretaries of State and Defense, the Joint Chiefs and the Attorney General.

I suspect that the President thinks first and foremost about the GWOT each morning, and that this choice for SCOTUS brings to that bench another Article II inclined justice with the sort of experience that no one inside the Court will have.

Of course, Article III judges are supposed to have an independent perspective. I prefer a judge who will read and apply the Constitution, not factor in their career experience.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor 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. Josh Cohen says:

    I see two reasons he nominated her:

    1. She’s so inoffensive (so far) that the dems will find nothing to attack her on.

    2. She’s a stalking horse; he puts her up, lets her take the heat, and then puts up who he really wants and the reps start nailing the dems for being “obstructionist”.




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  2. I find Hawking’s statement underwhelming.

    If she came up in Texas politics, one of “the” politicians in Texas politics during her early years would have been Lloyd Bentsen. In addition, Bentsen, while a democrat, would hardly have been called anywhere left of center. He was a conservative, Southern democrat.

    As for the Gore donation, when was it and what was it for? Gore used to be anti-abortion, after all. The DNC donation is more worrisome.




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  3. Gourmand says:

    Considering that the type of nominees they are likely to pick for the Supreme Court is one of the chief factors many of us look at when assessing a presidential candidate, this is especially disappointing.

    One may consider this “disappointing,” but it certainly shouldn’t be surprising given Bush’s proclivity to appoint people to positions in his administration due overwhelmingly to their political connections as opposed to more mundane things such as merit or experience.

    In fact, Bush’s entire career is based upon gleaning the advantages of being a scion of a powerful political family. When you look at his record with an eye towards merit and accomplishment, it is woefully unimpressive.

    Why would anyone think that he would do anything OTHER THAN reward his political cronies to the detriment of the interests of the nation?

    I am surprised that he didn’t nominate Rove, “Brownie” or Joe Albaugh, quite frankly.




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  4. Anderson says:

    David Bernstein at the Volokh Conspiracy has the right take, I think: Bush is intent on getting the Supreme Court to endorse his expansions of executive power under the GWOT, and appointing Executive Branch insiders is his way of doing that. Even a Luttig might turn out to be too principled for Bush’s purposes.

    The age issue is interesting; perhaps he wants her on the bench long enough to get said decisions handed down, and then hope that there’s another conservative who can appoint someone else.




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  5. Flourantine says:

    Bush is intent on getting the Supreme Court to endorse his expansions of executive power

    This probably correct. Does anyone else appreciate the irony here: Bush, a self-proclaimed “conservative,” uses gender tokenism to normalize big government!

    This guy is shameless!




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  6. odograph says:

    Another example of choosing loyalty over experience.




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  7. bryan says:

    I’m not so sure I see the GWOT angle as being a positive. After all, wouldn’t Miers have to recuse herself from any GWOT cases that she’s been involved with at the White House?

    Hewitt’s endorsement reads more like someone who drank the kool-aid than any sort of reasoned argument for.




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  8. Luttingisaloser says:

    Why is everyone so high and mighty on McConnell and Lutting? They are not conservative!

    “Luttig backed parental-notification requirements for minors seeking abortion in 1998. Two years later, he voted to strike down a law barring “partial-birth” abortion, saying he was bound by a Supreme Court decision. In 2004, he voted to bar South Carolina from offering license plates that said “Choose Life.”

    “Abortion
    Voted to deny rehearing in a case about South Carolina’s decision to offer “choose life” license plates. Luttig’s vote helped to uphold a ruling that the license-plate program violated the First Amendment because it did not offer pro-choice advocates a similar opportunity to make license plates that asserted their views. (Planned Parenthood of S.C. Inc. v. Rose, 2004) ”

    http://www.dkosopedia.com/index.php/J._Michael_Luttig

    Get over it, Lutting is a joke and couldn’t have been trusted. He is not conservative.

    As for McConnel,
    “The McConnell who pleases liberals is the one who clerked for the late Justice William Brennan Jr., criticized the Court’s 2000 decision in Bush v. Gore, and, before that, questioned whether President Clinton should be impeached.

    He opposes the constitutional amendment against flag-burning and is against school prayer in coercive settings. McConnell has fought on and off the bench in favor of non-mainstream religions; he and Justice Antonin Scalia have dueled in print over McConnell’s sharp criticism of Employment Division v. Smith, in which Scalia applied drug laws against a sect that used peyote in its ceremonies.”

    http://www.law.com/jsp/article.jsp?id=1117789517125

    In light of this, do you still want that moderate mainstream joker now? I never did. Quit calling these men conservative!




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  9. callen says:

    Oddly, she looks like the mom on “Happpy Days.”




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  10. Anderson says:

    After all, wouldn’t Miers have to recuse herself from any GWOT cases that she’s been involved with at the White House?

    IIRC, the sole judge of whether a justice must recuse herself, is that justice. Someone conversant with the Court’s own rules might be able to correct me on this.




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  11. Herb says:

    Anderson:

    Do you mean to say that “The Court Has Rules”?

    If so, would one rule be that Judges follow and obey the law.

    I surely would hope so.

    But then again, we all saw Federal Court Judges and Supreme Court Judge Kennedy violate the law passed by Congress in the Terry Scheivo case

    And not one of these Judges were brought to Justice




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  12. Anderson says:

    Herb, leaving aside your woeful misapprehensions about the Schiavo case, the Supreme Court does indeed have rules.

    You will be delighted to learn that they write them themselves.

    Anyway, I find nothing in them about recusal, so I guess the rule is 28 USC 455, which I don’t find to have any check on a justice’s own discretion. Normally one appeals a refusal to recuse to the next higher court, but that’s not an option with the SCOTUS.




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  13. Herb says:

    Anderson, The last I heard that if Congress (Both House and Senate) Passes a law and the President signs that bill into law, then you I, the Federal Judges and the SCOTUS are obliged to obey the law that was correctly passed.

    The Federal Judges and a Supreme Court Judge disobeyed that law. That is pure fact.

    Are those Judges above the Law?




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  14. Sam says:

    Some people are just better suited for the job. And I happen to like my picks the most.




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  15. Don says:

    The more I’ve thought about the Miers nomination, the more disturbed I’ve become. Okay, she has no judicial experience…that’s not unprecedented.

    However, it seems to me that most nominees to the nation’s highest court without previous judicial experience have had other relevant experience – they’ve argued a number of cases before the Supreme Court, or they’ve served in the Solicitor General’s Office, or they’ve had a distinguished legal academic career, or even that they’ve served with distinction in the public square, as a governor, senator, etc.

    But with Miers, there’s none of this. She’s been an attorney, but I haven’t heard that she’s argued any important cases or even that she has much of a background in constitutional law. She’s been on the Dallas City Council, but a Dallas reporter who covered her said that she didn’t make much of an impression or take any momentous stands to speak of.

    What exactly has this woman done that qualifies her for the Supreme Court? Its one thing for the Senate to reject a nominee who’s ideologically extreme…would they reject a nominee who brings few obvious qualifications for the position?

    I’m underwhelmed!




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  16. Don says:

    >The age issue is interesting; perhaps he wants >her on the bench long enough to get said >decisions handed down, and then hope that >there’s another conservative who can appoint >someone else.

    All things considered, I don’t see why her age is a limiting factor. She’s 60, unmarried, without children. At this point, her life expectancy is likely well into her 80s, and she’s not likely to step down to “spend more time with her family,” which was O’Connor’s rationale for stepping down at, what, 80?




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  17. James Joyner says:

    Don: Sure, 60 isn’t all that old. But there are certainly 45-year-olds with equally impressive credentials–although perhaps no females with long Bush associations.




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