Published 10/5/2005

In his announcement of the nomination of White House counsel Harriet Miers to be an associate justice of the Supreme Court, President Bush concluded with a simple and direct statement to Congress: “I ask the Senate to review her qualifications thoroughly and fairly and to vote on her nomination promptly.”
On its face, it seems straightforward enough. Like the president, most senators speak of “qualifications” as if the term is self-defining or obvious. Yet, after more than 200 years, neither the Senate nor law professors have agreed on what constitutes a “qualification” for the nation’s highest court. Indeed, looking over the past 157 nominations (and 42 unsuccessful nominations since 1789), there is little consensus on what constitutes a truly qualified person to sit on the court.

Most nominees, like new Chief Justice John Roberts, do not face such questions after years of prominent legal roles, including service on a prior court. Miers, however, has one of the slimmest résumés in history for a Supreme Court nominee. A graduate of Southern Methodist University Law School, Miers spent most of her career as a commercial lawyer in Texas. She served as the chairperson of the Texas Lottery Commission and a member of the Dallas City Council. Besides dispensing oversized lottery checks, her most notable résumé item is her friendship with President Bush — serving as his personal lawyer, staff secretary and later his White House counsel.

Just how good?

To say that Miers is unqualified is not to say that she is without qualifications as a lawyer. Rather, the question is whether a lawyer must have an outstanding background to justify one of nine seats on the highest court. Miers spent decades in the law without making a substantive contribution to the development of it.

Indeed, in addition to her friendship with the president, Miers’ lack of a record to review (and criticize) is viewed as one of her greatest strengths: a type of no-qualification qualification.

Not surprisingly, presidents often minimize the role of the Senate in reviewing their nominees: demanding deference from the Senate for any nominee with a respectable, if not respected, background who does not publicly proclaim an intent to run amok as a judicial activist.

For their part, the Democrats appear unable to offer a single coherent thought on these nominations, let alone a coherent definition of qualifications. Senate Minority Leader Harry Reid, of Nevada, has left many people scratching their heads in recent weeks as he randomly proposed names of everyone but Cher for the court. In addition to Miers, Reid recommended various Republican colleagues for the court despite their support for legislation previously denounced by Democrats as abusive and unconstitutional.

Yet, qualifications have been an issue in past nominations. In 1970, President Nixon nominated Judge G. Harrold Carswell for the court. While he had served on the Court of Appeals for the Fifth Circuit, Carswell was immediately attacked for his less-than-stellar résumé (as well as alleged anti-civil rights views). Described as a “dull graduate of the third-best law school in the state of Georgia,” witnesses chided Carswell’s lack of any scholarly articles or notable opinions. Pro-Carswell Sen. Roman Hruska, of Nebraska, did not help matters when he defended the nominee by declaring, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”

Apparently, the mediocre lobby was, well, mediocre. Carswell was defeated by a vote of 45-51.

Resisting cronyism

If qualifications for the court are debatable, one disqualification has long been recognized. Though Alexander Hamilton generally encouraged deference to a president’s choice, he stressed that the Senate should reject nominees who are the product of cronyism. Hamilton wrote in the Federalist Papers that a president should be “ashamed and afraid to bring forward … candidates who had no other merit than that … of being … personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

Miers’ nomination has widely raised outcries of cronyism, a practice that has long been out of favor for the esteemed court. Few have seriously argued that Miers would be on the short list, let alone the nominee, for the court on the basis of merit. The primary objection to Miers has nothing to do with her likely voting record, but whether it is true, as the president insisted in a rare Rose Garden defense this week, that she was “the best person I could find.” Leading conservatives have refused to accept that claim and denounced the nomination quite vocally.

Their anger is understandable.

This was the moment that conservatives had long waited for. For the first time in decades, the court will have a stable conservative majority. This nomination was expected to herald in a type of conservative renaissance on the court, crafting a new bold vision in legal areas long arrested by 5-4 divisions on the court. With Chief Justice Roberts, Bush had the ability to appoint the conservative equivalents to Oliver Wendell Holmes and Louis Brandeis — gifted legal intellects who could bring depth and breadth to the court’s new vision. Instead, Bush chose someone of greater personal and historical significance.

The question is now whether the Senate is capable of meeting Hamilton’s test in resisting a nomination offered primarily for a president’s pleasure. It seems more likely that the dream of a judicial conservative renaissance will succumb to a combination of blind loyalty and presidential whim. Let no one say qualifications do not matter. In securing this questionable confirmation, Bush will be remembered by many as a myopic president who could not see a legacy waiting just beyond his small circle of friends.