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Commentary

The Miers Nomination: Avoiding Advice and Consent


     
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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. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.

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