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.
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.