International House of Dan: Harriet Who?

Friday, October 14, 2005

Harriet Who?

I'm just starting to very lightly scratch the surface on this nomination, so please bear with me (that means you Jeremy), I promise I will delve into the issues in the coming days.

The resume of Harriet Miers is good, I suppose, but her achievements do not even begin to approximate those of the Justice she would replace. I base this on a variety of things, such as the fact that in 1972, when "Ms. Miers became the first woman hired at Dallas's Locke Purnell Rain Harrell", O'Connor became the first woman elected majority leader of any state senate in the country. Both were in Law Review, but Miers went to Southern Methodist and earned a bachelor's in math and a JD, while O'Connor graduated high school at 16, went to Stanford, and graduated magna cum laude in economics, earned her JD, and made Order of the Coif. Following the announcement of the Miers nomination, the President claimed on his weekly radio address that:
Harriet Miers would come to the Supreme Court with a background in private practice and high-government service, and this puts her in strong company. Indeed, since 1933, 10 of the 34 justices came to the Supreme Court directly from positions in the executive branch, such as the one Ms. Miers now holds.
O.k., let's see about these other 10... As far as I can tell, there have only been 9 Justices since 1933 who worked for the executive at the time of their nomination. Fortas did not work for the executive at the time of his nomination, but it was the only branch he'd ever worked for. Harriet Miers "now holds" the position "in the executive branch" of White House Counsel. Since 1933, the 10 Justices who've ascended from the executive branch have been Justices Stanley Reed (1938 - Solicitor General, never got his law degree), William Murphy (1940 - U.S. Attorney General - had been Mayor of Detroit and Governor of thePhilippiness), Robert Jackson (1941 -Solicitor General - had been Assistant U.S. Attorney General and IRS General Counsel), Fred Vinson (1946 - Secretary of the Treasury, had been on the U.S. Court of Appeals and a U.S. Representative), Tom Clark (1949 - U.S. Attorney General, from Dallas, had been at Justice for 12 years and was civilian coordinator for Japanese internment camps), Byron White (1962 - Deputy Attorney General, a Rhodes Scholar and WWII vet who played in the NFL, graduated first in his class at Yale Law and clerked under U.S. Chief Justice Vinson), Arthur Goldberg (1962 - Secretary of Labor, had been a WWII OSS agent and prominent labor attorney), Abe Fortas (1965 - was actually in private practice at the time but he has to be the 10th, ran the SEC, was Undersecretary of the Interior, and won Gideon v. Wainright) Thurgood Marshall (1965 - Solicitor General, had been on the U.S. Court of Appeals and won Brown vs. Topeka Board of Education), Warren Burger (1969 - Assistant Attorney General, had been a law professor, argued before the Court and been on the U.S. Court of Appeals), William Rehnquist (1971 - Assistant AG in the Office of Legal Counsel, a WWII vet with multiple degrees from Stanford and Harvard who clerked for Justice Jackson). It seems to me that, as with these (mostly) able Justices, the fact that Miers came directly from the Executive is not the problem. A lack of judicial experience casts no aspersions on one's qualifications to serve on the highest court when, as with these men, other experience has taken its place. The President continued:
And no Supreme Court nominee in the last 35 years has exceeded Harriet Miers' overall range of experience in courtroom litigation, service in federal, state and local government, leadership in local, state and national bar associations, and pro bono and charitable activities.
For starters, bar association membership and activity is about as relevant in assessing a nominee's qualifications as fraternity or sorority affiliation. As for the rest of the factors, I find them difficult to gauge, and their importance overstated. Harry Blackmun was nominated in May of 1970, and Mr. Bush spoke last week, so I suppose he missed the cut by a few months. This means that "the last 35 years" leaves us only Reagan's 2 failed nominees for Justice Powell's seat (Robert Bork and Douglas Ginsburg) and every Justice to have sat on the Court since Justice Powell. Whatever "overall range of experience" may mean to the President, if Miers has more of it than the current sitting Court, then I'm not sure that it's anything a Supreme Court Justice needs to have. If he was talking about the failed nominees (nomination politics aside), then we should scarcely be reassured by her having more of something than the two people who were deemed not to have enough.

At her confirmation Sandra Day O'Connor got 99 yea votes. I'm willing to bet a substantial sum that Harriet Miers won't. Any takers?


Blogger thinksam said...

Put me down for a case of fine brews.

25 October, 2005 17:23  

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