Harriet E. Miers

The woman that President George W. Bush has nominated to replace Justice Sandra Day O'Connor, Harriet E. Miers, has a record that leaves her about as close to being a blank slate as is possible to imagine for someone with as prominent a legal career as she has had. (More on her here.)

Obviously, she is a Republican who knows the President personally. But, neither the Texas Lottery Commission, nor the Dallas City Council, her only political posts, are particularly partisan. Her roles as President of the Dallas Bar Association and Texas Bar Association, as well as fairly prominent involvement in the American Bar Association put her within the mainstream of Texas lawyers, as does her leadership of a large Texas law firm. Unlike Chief Justice Roberts, she has not made a career of being a political hack, even though she has had some political involvement. She has not even clerked for a Supreme Court Justice, a post that could have shed some light on her judicial views. The fact that she was a mathematics major is a point in her favor as well. The fact that she once upon a time gave an occassional political contribution to a Democrat like Al Gore in 1988 (per geek with a 45) is also notable.

At about sixty years old, she is not exceptionally young or old for a Supreme Court Justice. As a corporate litigator for publicly held corporations, who has probably never tried a criminal case in her life and never served as a judge, she is a completely blank slate when it comes to half of the court's docket - she probably didn't even read the advance sheets from the Texas Court of Criminal Appeals in Texas. (The only insight appears to come from her service on the Board of Exodus Ministeries, Inc., which appears to be a non-denominational Christian group helping ex-cons, not the anti-gay brainwashing group, hat tip to anti-strib). Her only involvement with the abortion issues appears to have been a failed effort to have the ABA take less of a position on the issue, which does not, in itself, say a great deal about her take on the jurisprudence of abortion. Most Republican lawyers express concern about an appearance of partisanship in the American Bar Association. It isn't even clear that she has ever been a member of the Federalist Society. The organization was in its infancy (if it existed at all) when she was in law school and her busy private practice and bar association focus could very well have kept her away from it later in her career.

Indeed, as a corporate lawyer, her experience suggests that she probably has only modest professional experience with the constitutional and public law issues which are the bread and butter of the non-criminal side of the docket in the court. Unlike Roberts, she doesn't even have a spouse or children who can shed light indirectly on her views. Has the Court ever had two never married jurists (Souter has also never married), in its entire history? I won't follow that line of reasoning any further, but Wonkette does have the only personal dirt and it is more like a light bit of Texas dust, on Miers which appears to be circulating.

I have a hard time imagining that she will not be confirmed, absent a remarkable new development. Liberals can hope that her experience breaking gender boundaries, and the reality based existence that private private attorneys have to live, will give her at least some balance in her experience. She has less of a hard core conservative public record than almost any conceivable Bush nominee, and is rumored to have the advanced O.K. of leading Democrats and Republicans in the Senate. She could very well be a Thomas/Scalia conservative deep down. Republican lawyers for big corporations in Texas are not known for their liberalism, and her elevation a couple of years ago to be a deputy advisor for policy in the White House suggest that her views must closely align with those of the President. But, the Senate will never prove it and will likely not even get any meaningful examples of her White House work product in the confirmation process. If the Senate can claim ignorance of Roberts' strong political biases, they won't find her's. The only way her biases could easily come out is if attorneys who practiced with her reveal them. Those who have worked with her, like David Frum, believe that there are no such skeltons in her closet.

The group of fourteen who signed the deal stating that they would only filibuster in "extraordinary circumstances" are unlike to oppose her. And, absent a filibuster, a party line Republican vote, with some Democratic support as well, is virtually assured. In all likelihood she will receive even more votes in the Senate than the 78 that Chief Justice Roberts received.

I suspect that one of the attractions of Miers for Bush her keen loyalty to the executive branch. On issues of Presidential power, like the Enemy Combatant cases, I suspect she will be a sure vote in the President's favor. She is someone with a long history of representing those in power against those without it. While she encouraged "pro bono" work from bar positions (who in those posts doesn't?), she really has no experience at all standing up for the little guy. Also, while in principle, she has a political background, she does not have the experience with the kind of give and take that Sandra Day O'Connor undertook as a state legislator.

Choosing a stealth candidate is a dangerous move for the President and for those who would vote to approve her. But, from the perspective of Democratic strategists, someone entering the Court with a fairly open mind and a record for being self-directed may be the best that they can hope for out of this President. I didn't buy that argument when it was directed at Roberts, but I can see that argument far more plausibly directed at Miers.

The President's real risk with Miers is that he has never really seen her act on her own behalf in the partisan political sphere. Lawyers are fundamentally loyal servants. We have our own opinions, but in private practice, there is rarely an occasion to vocally express them. The same holds true in positions where she has been counsel to Bush. Yet, Supreme Court Justices more than any other position in our political system, report to no one. Any woman of her experience who can call George W. Bush the smartest man she has ever met (as NPR reports that she has) obviously knows how to lie about her own feelings. How she will act once she is free of an obligation of loyalty to him is not at all clear.