White House counsel Harriet Miers’ nomination to the U.S. Supreme Court shouldn’t be scuttled merely because she has no prior experience as a judge. Some of the nation’s best and most famous justices came to the bench without judicial backgrounds.
In almost every case, these men – and they have all been men to this point – were able to bring to the court a sense of practicality and real-world perspective that often is notably missing from the world of appellate law.
Almost all of those people brought with them to the high court a level of proven excellence in public life, private practice or academic achievement. Compared to these would-be predecessors, Miers has neither a one-in-a-million mind nor a once-in-a-lifetime resume.
There is a Harriet Miers (or two or five or 10) in every state in the union, including Colorado.
Miers thus will receive none of the deference – even reverence – that our nation’s legislators showed to the most recent Supreme Court candidate, John G. Roberts Jr.
So the Senate Judiciary Committee should demand that she explain her legal views fully – much more fully than Roberts did – and it should press the president to release many documents Miers wrote during her recent tenure as the president’s official lawyer.
It’s not hard to compare Miers to past nominees who came to the court without first serving as lower-court judges. And it’s not hard to see how she may be challenged by such comparisons.
Let’s move back in time from the most recent nominees who weren’t sitting judges at the time they were offered seats on the Supreme Court.
The late Chief Justice William H. Rehnquist, chosen in 1971 by President Nixon, had both clerked at the court and served as an assistant attorney general. He also graduated at the top of class at one of the best law schools in the country.
Lewis F. Powell came to the court in 1972 after serving as president of the American Bar Association and running a school board in Richmond, Va. Arthur Goldberg came to the court after serving in a president’s Cabinet as a labor secretary. Abe Fortas had experience in federal office before President Johnson asked him to become a justice. Byron R. White also came to the court after working at the attorney general’s office. Earl Warren and Charles Evans Hughes, two giants of American legal history in the 20th century, came to the court after serving as governors of California and New York, respectively.
Robert H. Jackson, for whom Rehnquist clerked, was the solicitor general of the United States before stepping over to the other side of the bench. Felix Frankfurter was a Harvard Law School professor before President Franklin D. Roosevelt asked him to join the court. Hugo L. Black was a senator. William H. Taft came to the court after serving as president. Harlan Fiske Stone was dean of the Columbia Law School and then U.S. attorney general before reaching the court.
Going back even further, the first Justice Harlan, John Marshall Harlan, came to the court after a frenetic 19th century career in politics and the military.
Each of these nominees, and dozens more, had made deep marks in the life of the nation before they were asked to don a robe. Some had been voted into high office. Others had enjoyed national experience and exposure. Still others were men of great intellectual distinction and professional and personal courage. And, indeed, they were chosen to bring those virtues and qualities to one of the most prestigious jobs in the world.
How does Miers’ compare? She served President Bush as deputy chief of staff and then as White House counsel. To some, these appointments merely mean the president has your trust and has worked with you before.
Being a past president of the Texas Bar Association is a solid achievement, and a nice nugget to have on your resume (especially when the president is from Texas), but the experience doesn’t provide much grounding in constitutional law.
Miers wasn’t even the best-ever commissioner of the Texas State Lottery when she chaired it in the mid-1990s. The New York Times reported this week that an August 1997 report by the Office of the Texas State Auditor noted “a material weakness in the commission’s control environment” which led to major headaches for the lottery.
You want a practical litmus test for the Supreme Court? Here’s mine. If you can’t help run a state lottery without getting into trouble, you probably don’t deserve to sit in judgment on issues that will impact hundreds of millions of Americans.
None of this is to say that there isn’t room on the Supreme Court for a judicial “outsider,” someone who isn’t already used to the isolation of being a judge. In fact, the argument in favor of such a candidate has merit, especially now, when a full generation has passed since a non-judge became one of the supremes. Wouldn’t it be great, for example, for a lawyer with some medical training to get onto the court? Or a lawyer with vast knowledge of technology?
There are plenty of such candidates out there. History shows that those who serve on the court do their best when they come to the job with the tools and experience and talent to excel. The job simply demands the best and brightest that each generation has to offer.
