Harriet Miers Is No John Roberts

CBS' Andrew Cohen: Nomination Will Spawn A Nasty Political Dogfight

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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By selecting White House Chief Counsel Harriet Miers to be his next Supreme Court nominee, President Bush has spawned the nasty political dogfight he carefully avoided in July when he tapped John G. Roberts Jr. for the High Court.

Around the Miers’ nomination will coalesce virtually every relevant criticism of the Bush administration and the current political climate in Washington, D.C. A big battle has just been joined over a 60-year-old lawyer who has hitched her own career to the president’s rising star.

There are many reasons why Miers is a controversial — perhaps even a doomed — nominee and none of them have to do with any legal or judicial philosophies she may have. She has no judicial experience. She does not possess a world-class intellect like her would-be predecessor on the Court. She is a Bush crony at a time when there already is great criticism of the White House for placing into high office friends whose loyalty to the president overshadows their professional competence. And if you thought Roberts offered the nation little in the way of his true legal and judicial philosophies wait until you find out how little of a public record Miers has.

The White House, and maybe Miers herself, will have to explain to the nation, and to the Senate, why she rates the job of associate justice of the United States Supreme Court over dozens of highly-qualified female judges around the country (and dozens of highly-qualified male judges as well).

It has been a generation — back to when President Richard Nixon tapped William Rehnquist and Lewis Powell in 1971 — since a president selected someone for the court who didn't already have experience as a judge. And neither Powell nor Rehnquist were working as presidential loyalists out of the White House when they got the job. The lack of experience on the bench, alone, is not fatal to a candidacy, but it clearly won't help.

The president and his former private attorney — Miers worked for Mr. Bush in Texas and now works for him in Washington — also will have to make the case for how and why Miers equals or even comes close to Roberts in judicial temperament and legal intellect.

From his friends and opponents alike, all we heard this summer was how brilliant Roberts is; how he was the best lawyer of his generation. Although she clearly is a smart, successful attorney, no one will be saying, honestly, that Miers is in the same intellectual league as Roberts.

Unlike Roberts, she wasn’t writing memos in her mid-20s to the attorney general of the United States. Unlike Roberts, she didn’t clerk for the Supreme Court. It is not an accident that Mr. Bush did not talk about Miers’ superior brainpower when he introduced her to the nation Monday morning.

Again, this lack of intellectual heft alone is not fatal to a candidacy for the Court but when it comes to scholarship the comparison between Miers and Roberts will not be flattering to the former. If Roberts was a one-in-a-million lawyer, then Miers is, apart from her friendship and contact with the President, nothing special.

There are, after all, hundreds, maybe even thousands, of former bar association presidents around the country. There are, thankfully, many female lawyers who broke barriers in their profession. And even if you compare Miers political background with the background of the woman she might replace, Miers comes up short. Miers ran the Texas Lottery Commission, a job she got thanks to then-Gov. Bush. Justice Sandra Day O’Connor was an elected state representative in Arizona before she became a judge and then a justice.