Harriet Miers Is No John Roberts

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

(CBS) 
And then there is the crony issue, the mother of all “procedural” issues that are going to be raised as this confirmation goes forward. Especially after Hurricane Katrina, the White House has been criticized for giving jobs to political friends at the expense of professional competency.

The former head of the Federal Emergency Management Agency, the hapless Michael Brown, is just the most famous and disappointing example of this unfortunate trend. The White House and Miers now will have to explain to the nation, and the Senate, why someone who came to Washington as President Bush’s “staff secretary” is more competent to be on the High Court than all of those bright, eager federal appeals court judges we heard so much about in the run-up to this selection.

The burden of proof, if you will, is squarely upon Miers to demonstrate how and why she is not just another political hack who has been given a plum assignment — perhaps the most plummy of all assignments — as a reward for many years of service to the president both in and out of office.

And I do not believe that Miers will be able to meet this burden by simply repeating the mantra that she will “put on a different hat” once she gets to the Court. Unlike Miers — unlike any other sitting justice, of course — Miers was an active, ardent and vocal political operative inside the very White House that now will often be a litigant before the Court. She may not be another Michael Brown, but that still won’t be enough.

Miers carries all of this baggage into the Senate confirmation process before we even get to the “merits” of her case. She has even less of a “paper trail” that reveals her jurisprudential views than we had for Roberts, who was widely criticized, even by some Republicans, for not sharing those views with the Senate.

But Roberts was able to point to his impeccable credentials and his two years on the federal appeals bench as proof that he was within the legal mainstream. Miers, on the other hand, can’t point to any record on the bench or much in the way of any other formal writings that would shed light on the type of justice she is likely to be.

Instead, much of what we now will learn about Miers will be about the public support she has shown the Bush administration since it took office — hardly the sort of impartiality one looks for in a judicial candidate.

Roberts “filibustered” his way out of answering the tough questions but he was so clearly qualified — and so clearly wasn’t within the direct orbit of the president — that he sailed through.

Miers does not have that luxury. She is caught in a bind. If she is candid during her confirmation process about her views on abortion rights, and religion in public life and the other hot-button issues, the she runs the risk of offending those on the right or on the left. And if she is Roberts-like in her silence before the Senate Judiciary Committee then she runs the risk of failing to overcome the distinct handicap she has thanks to her lack of experience for the job.

This trap will give her legal and political opponents plenty of cover (and logic) to vote against the Miers’ nomination if the candidate doesn’t figure a way out of the box into which her friend, the president, has just placed her.

The selection of Miers says more about Mr. Bush than it does about Miers. It says that he is willing to try to strong-arm the Senate with a judicial nominee who is clearly not an elite choice.

It says that he is either blind to the recent cronyism charges against him or else simply not persuaded that they demonstrate a pattern of reckless governance. It says that he believes that Miers will be able to show a level of independence from him that she so far has never needed to show.

Mostly, it says we are in for a nasty, bruising, nomination fight, the outcome of which is as unpredictable as the president is predictable when it comes to taking care of his friends.