The rush
to judgment on Miers from the President’s allies has been
striking. Not only has it been immediate and widespread, it also
has been – in many cases – extraordinarily immoderate.
No subtle weighing of Miers’ positive and negative attributes
for the job; no indulging the possibility that someone who doesn’t
fit the model so many of us have in mind for Supreme Court appointments
could possibly make a good justice. And no willingness to suspend
judgment, to see if the President indeed has done what he promised
and given us a justice who is thoughtful, committed to a law-bound
and modest view of judging, and committed to the vision of constitutional
law the President consistently has endorsed.
Miers would
not have been my choice, given the high value I place on public
writing and scholarly engagement and the respect I have for so
many appellate judges who have proven their ability to do exactly
the work I believe must be done by Supreme Court justices. But
I am not so presumptuous as to think that this is all that could
qualify someone for the Court.
Miers doesn’t
exactly come to the nomination as someone without any qualifications,
skills, or experience. She’s been a highly successful commercial
litigator, the head of a major law firm, President of the Texas
State Bar, a leader of the American Bar Association, an elected
official, lawyer to the President of the United States and White
House Counsel. She has a broader background in business law than
anyone who has come to the Court in three decades. Miers also
has worked side by side with the President, who knows her far
better than any of the critics and who says she shares his views
and values, including his commitment to law-bound judging. She
helped the President select other judges, many of whom were attacked
by Democrats for so clearly espousing the very views that conservative
critics cry are sacrificed in this nomination.
There can
be reasonable disagreement about what most qualifies someone for
the Court. There can be respectful differences about what we should
value in this nomination, about what deficiencies it might have,
and about what to do. Yet, so many conservatives voicing upset
with the President’s choice are neither open to the possibility
that the President has made a good choice or that defenders of
the nomination could possibly be thoughtful about it.
Miers’
few defenders have been subject to highly personal attacks from
fellow conservatives. I’m not talking polite disagreement,
as when a conservative colleague called my defense of Miers lame.
That’s part of the ordinary give and take over public decisions.
But fellow conservatives have, in far more colorful language,
made it clear that Miers’ defenders simply aren’t
welcome on our island.
In the last
few days, I have received hate mail, outright threats, and attacks
on my competence to assess judicial nominations or substantive
law. I have been told that I “should have been aborted”
and that I should “shut the hell up” because I –
and others like me – just don’t know what I’m
talking about.
Actually,
I do. A graduate of the University of Chicago Law School, I have
been a lawyer for more than 30 years, a law professor for 28 of
those, a presidential appointee (confirmed by the Senate), author
or co-author of more than 100 works (including 10 books), a law
school dean for 14 years, and President of the American Law Deans
Association. I have been a consultant and advisor to corporations,
the Department of Justice, international organizations, and major
law firms on both corporate and public law issues. I am a member
of the American Law Institute, Fellow of the American Bar Foundation,
past Chair of the ABA Administrative Law Section, and past Delegate
to the ABA House of Delegates. I also am a proud member of the
Federalist Society, chairman of one of its practice groups, and
active in the Society’s leadership.
In short,
I am no “ignorant shill” for the administration. I
do not speak for the President, for any organization I belong
to, or for anyone other than myself. But I do speak as one who
has substantial experience and has devoted a lifetime to the law,
to educating people in the law, and to writing, speaking, and
thinking about the law.
Personal
credentials do not establish the correctness of any argument.
But the conservatives declaring who should survive shouldn’t
indulge the conceit that they alone have the background, investment
in the law, or intellect to assess nominees. Many seem to have
surprisingly short memories.
The conservative
critique of Miers rests primarily on two legs. One is based on
a singular, a-historic vision of Supreme Court appointments. We
didn’t use to require appointees to the Court to be judges,
academicians, or legal scholars. Louis Brandeis, Robert Jackson,
Earl Warren, Byron White, William Rehnquist, Lewis Powell –
none of them came to the Court with those qualifications. Each
of these justices left a mark on the law. Although the current
Court has three justices who were established scholars before
taking seats on the bench, appointment of scholars to the Court
has been the exception, not the rule. It is fair to want nominees
who have the breadth of knowledge, interest in constitutional
issues, and writing skills that scholarly publication can convey.
But scholarship has never been the sine qua non of appointment.
The other
major line of attack on Miers comes from conservatives who are
demanding proof that Miers shares their beliefs. But conservatives
repeatedly have asserted that judges shouldn’t make commitments
in advance to particular positions. We can ask that they commit
to a vision of judging, a way of interpreting the law, an understanding
of constitutional interpretation. We shouldn’t ask their
positions on particular matters that are likely to come before
the Court. That was our answer to liberals like Chuck Schumer
who want judicial confirmation hearings to focus on ideology.
It should be our answer to ourselves.
The Senate
Judiciary Committee will hold hearings soon. Those hearings have
a limited role – to serve as a check against the appointment
of unqualified individuals nominated out of personal attachment
or political pressure. Critics of the nomination charge that this
description is apt here. The way to test that is not, as some
have urged, to give Miers a “law school exam,” asking
detailed questions on specific topics. It is not to pinpoint her
ideology. Instead, it is to discuss her approach to interpreting
the Constitution, her understanding of the broad contours of the
law, her view of the judge’s role.
If Miers’
performance at those hearings is not that of a person who seems
ready to interpret the Constitution thoughtfully, she will lose
my support. If she comes across as an experienced, intelligent
lawyer committed to law-bound judging, then she should gain public
support from conservatives now criticizing her nomination –
though the damage to our party at that point might be irreparable.
Harriet Miers
deserves a chance to prove herself. I am willing to give her that
chance. And my conservative colleagues, even those who are deeply
skeptical now, shouldn’t vote any of us off the island just
yet.
