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Commentary
The Miers Nomination: Avoiding Advice and Consent
October 7, 2005
William J. Watkins Jr.
Most Americans recognize the Supreme Court as final arbiter of our rights
and the Constitution. Even if the President, a unanimous Congress, and the
people of all fifty states agree on a particular piece of legislation, a
coalition of five unelected, unaccountable justices could strike the law as
unconstitutional. Hence, a High Court appointment is perhaps the most
important decision that a president can make.
In exercising this important power, President Bush has nominated Harriet
Miers to replace the retiring Justice Sandra Day O’Connor. Outside of the
Texas bar and the White House, few have heard of Miers. A graduate of
Southern Methodist University, Miers has practiced law in Dallas for most of
her career. Having never served on the bench or in academia, Miers has even
less of a paper trail than the recently confirmed Chief Justice John
Roberts.
In recent days Miers has been excoriated in the media. Unfortunately, much
of the criticism of Miers has been for the wrong reasons. For example, the
Ivy-educated have turned up their collective nose at Miers’ SMU Law degree.
The presumption seems to be that law schools other than Harvard and Yale
cannot produce quality lawyers or judges. This, of course, is rubbish. One
need only look at the Fourth Circuit Court of Appeal’s Judge Karen Williams.
Bereft of Ivy and with a law degree from the University of South Carolina,
Judge Williams is widely regarded as a shining star in the federal judicial
constellation.
Pundits have also been critical of Miers’ lack of judicial experience. Only
appellate court judges, they imply, are worthy of a Supreme Court
nomination. This myopic view ignores that private practice is often more
challenging than the cloistered existence of appellate court judges. Trial
lawyers must juggle myriad cases, think on their feet, and don’t have the
luxury of retreating to chambers when a difficult issue presents itself.
Her vast trial experience coupled with her position as managing partner for
a 400-lawyer firm gives Miers a perspective that most judges lack. She would
bring a true diversity of experience to the Supreme Court.
These pluses aside, there are major issues with the Miers nomination—specifically, her lack writing or speaking on the major legal issues of our time. Other than a couple of short articles in the Texas Lawyer magazine and a speech at the Pepperdine University, there is no record of her views or opinions. She has written no books, law review articles, books reviews, or editorial columns. One wonders whether she has even written a postcard. With no hard evidence of the nominee’s judicial philosophy or intellect, the Administration simply asks the people to trust its judgment on the Miers nomination.
Miers’ lack of a written record can only be attributed to some combination
of the following: (1) she lacks the intellectual heft to participate in
debate over constitutional issues, (2) she does not care, or (3) she has
carefully avoided stepping into the fray in order to advance her career.
Any one of the reasons is sufficient to disqualify her from consideration.
Under the Constitution, the Senate must give its advice and consent before
approving a nomination to the Supreme Court. Other than impeachment,
“advice and consent” is the only constitutional check the people’s
representatives have on judicial appointments. With Miers’ failure to apply
pen to paper and the nominees’ usual refusal to provide meaningful answers
during confirmation hearings, the senators will have little on which to base
an affirmative vote for Miers.
It is incumbent on the President to nominate individuals who can be evaluated. Stealth candidates such as Miers are but improper attempts to evade the Constitution’s advice and consent requirement. Unless Miers quickly provides some hard evidence of her legal philosophy and opinions, the Senate will be compelled to exercise its constitutional check and reject the Miers nomination. There is simply too much at stake to place blind faith in the President’s choice.
William J. Watkins, Jr. is a Research Fellow at The Independent Institute in Oakland, Calif. and author of the Independent Institute book, Reclaiming the American Revolution.
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