Tuesday, October 04, 2005

The President's Stealth Nominee

The New York Times

The President's Stealth Nominee

It is a sign of the times that President Bush's nomination of Harriet Miers to the Supreme Court was greeted with so many sighs of relief. Ms. Miers's record is so thin that no one seems to have any idea of what she believes, and she was clearly chosen because of her close ties to the president, not her legal qualifications. Still, there is no evidence as yet that she is an ideological warrior who would attempt to return American jurisprudence to the 18th century, and these days, the nation seems to be setting the bar for almost everything pretty low.

Ms. Miers's résumé gives at least some reason to hope that she could be a moderate, pragmatic judge in the mold of Justice Sandra Day O'Connor, whose seat she will fill if she is confirmed. She has spent much of her career in corporate law firms and bar associations, environments that encourage pragmatism over ideology.

The Senate minority leader, Harry Reid, Senator Charles Schumer of New York and other Senate Democrats made it clear that an extremist nominee would face a tough confirmation battle, and they may have helped convince Mr. Bush not to nominate a judge or law professor with a long record of opposing privacy rights, civil rights and other freedoms. But choosing Ms. Miers, a member of his team who was also his own personal lawyer, is still very much in character with the president's tendency to reward familiarity and loyalty over independence and a reputation for excellence.

The American people are certainly entitled to know a lot more about Ms. Miers. As a non-judge who has largely operated behind the scenes, she does not have a lengthy record of judicial opinions, law review articles and public comments. While this page complained about the lack of information available about John Roberts, the new chief justice was a veritable font of background records compared with this new nominee.

This administration likes to argue that Ruth Bader Ginsburg declined to say much about her views when she was nominated. But she had been a federal appeals court judge for more than a decade, and her approach to judging was well known. The Senate needs to ask Ms. Miers directly where she stands on important legal issues, and it should not confirm her unless she makes clear her commitment to well-settled rights that Americans take for granted.

Ms. Miers's nomination is a sign of just how politicized judicial selection has become. The normal model for a Supreme Court nominee is a judge, usually from a federal appeals court, who has served long enough to develop and demonstrate judicial excellence. But today, anyone who meets that standard runs into a political Catch-22. The far right of the Republican Party will oppose anyone who has shown signs of moderation, and Senate Democrats will try to block anyone who has not. Rather than select a strongly qualified candidate from the legal mainstream, President Bush has taken the easy way out by choosing a less accomplished nominee who will raise fewer political problems.

Many of the best justices have taken odd routes to the court. Ms. Miers could prove to be a pragmatic, common-sense justice who ends up making this court the Miers Court, the way Justice O'Connor effectively made the last one the O'Connor Court. Before taking that risk, however, the Senate needs to get to work to learn a lot more about her.