Give Miers a chance before the U.S. Senate
Who’d have known that Harriet Miers would have caused such a ruckus just by saying “yes”?
At first blush, President Bush’s nomination of Miers as the successor to Justice Sandra Day O’Connor looked like a welcome indication that he wasn’t going to shoot a flamethrower at the neighbor’s parched lawn and laugh maniacally at the ensuing pandemonium.
He could, after all, have poked the Democrats in the eye once again with Priscilla Owen, whom he obstinately wrestled onto the 5th U.S. Circuit Court of Appeals.
Instead, he chose a trusted adviser who under other circumstances would have been considered an accomplished woman who blazed a trail in the legal profession.
And that has ignited a tizzy among elitists and extremists, among demanding rightists who feel Bush owes them a definitive anti-Roe vote on the court and skeptical leftists who worry that she’ll wear her religion on her opinions about abortion rights.
Miers has the misfortune of catapulting into the Beltway’s unforgiving spotlight in the shadow of both John Roberts’ confirmation brilliance and Michael Brown’s post-hurricane muck.
If her friends are to be believed, she’s a tough and determined lawyer, a consensus-builder whose assertiveness isn’t always noticed because she tends to work quietly without seeking fanfare.
If detractors who know her are to be believed, she can be ruthless, relentless and indecisive.
Yet no one who’s worked with her accuses her of being ideologically driven or having a personal agenda to advance on the court.
Miers’ loyalty to Bush certainly could work against her. Senators definitely should probe her views on executive power and judicial independence. How much deference would she give to the president in struggles with Congress or with the judiciary? What are the limits to the president’s authority in wartime? What, if anything, does a justice owe to the president who appointed her?
Still, Miers is no Michael Brown. He had virtually no background in emergency management when he ascended to head the Federal Emergency Management Agency, and what he claimed to have was merely a resume embellishment. Nor was he even in the Bush inner circle: he was a friend of a friend.
Miers, on the other hand, was cracking Dallas’ powerful legal circles when new Chief Justice Roberts was still in high school. She rough-and-tumbled in big-city politics and was elected by State Bar of Texas members to lead an organization that represents more than 50,000 lawyers.
Many folks who don’t know Miers have overlayed Roberts’ resume on hers and found hers wanting. She’s no John Roberts. But who is?
(Actually, there’s at least one lawyer in Washington, Maureen Mahoney, who’s regarded as having credentials, intellect and advocacy skills to match Roberts’. Alas, Bush apparently doesn’t know her like he knows Miers.)
But how about viewing Miers with some perspective?
Let’s face it: Roberts never had to break any barriers to get ahead. That’s not a knock on him, just reality. He was a brilliant guy who got into Harvard and Harvard law, got the best clerkships, was mentored by powerful Republicans and groomed himself all along the way for where he is now.
Miers went to Southern Methodist University in the late 1960s, when women still were pioneering careers in law. She clerked for a federal judge in Dallas and then was the first woman hired by then-200-lawyer Locke, Purnell, Rain & Harrell. Some might consider those noteworthy achievements.
He was a young, smart-aleck upstart counseling President Ronald Reagan, while she didn’t get to the White House counsel’s office until she was almost 60, bringing with her more than 30 years’ experience in the law. While he was arguing cases before the Supreme Court in the early 1990s, she was practicing corporate law in state and federal court, leading the State Bar of Texas and arguing that the American Bar Association should retreat from its foray into the abortion wars.
Does that make her a lesser light?
Not in and of itself. Nor does it disqualify her for the court.
She probably hasn’t spent her legal career theorizing about the application of strict scrutiny, the scope of procedural due process and the vitality of the dormant commerce clause. But she almost certainly has studied the scope of the president’s war powers, the role of the federal courts in electoral disputes, the tension between state and federal authority, the proper limits on biomedical research and other issues that could come before the Supreme Court.
What’s important to know is how she views the weight of legal precedent, the role of the high court in our constitutional scheme, the importance of judicial independence and integrity. Where does she find the meaning of non-specific words in the Constitution, such as equal protection, due process, cruel and unusual punishments, establishment of religion, unreasonable searches? What does she think about that hugely important right that isn’t in there in so many letters: privacy?
There are many questions that Senate Judiciary Committee members should and must ask. But Miers is entitled to show how tall she can stand in her reportedly size-6 shoes.
Linda P. Campbell is a columnist and editorial writer for the Fort Worth (Texas) Star-Telegram.
