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Bench Memos

NRO’s home for judicial news and analysis.

The Trouble with Harriet



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A decent respect to the opinions of mankind requires that I explain why I recently joined David Frum’s Americans for Better Justice:

The basic problem with Harriet Miers–besides the fact that she’s too old (at one point, the word was the White House was not going to consider anyone over 60, her age)–is simply stated: She does not have a proven, conservative judicial philosophy.

This is not her fault. With one possible exception, she has never had a job where she has had to think long and hard about the right approach to judging. She has never been a judge, for instance, or a law professor, or–until the last year, as White House counsel–a member of the executive branch who has to look at constitutional issues. She never even had to deal very much with weighty federal issues while in private practice. It is possible that she might have focused on these issues as White House counsel, particularly in the judicial selection process, but even if this is true, it is an experience that she has had for less than a year, and it is only one part of that job.

Moreover, whatever views she has developed in the past year have not been tested in the crucible of public opinion, media vilification, or the competing views of other judges. If she has not thought through these issues, she is unlikely to be someone who can persuade a middle-of-the-road justice to do the right thing; worse, it becomes much more likely that she will be persuaded by a left-wing justice to do the wrong thing. She is much more likely to “grow” in office.

The issues with which she will be dealing are not simple, and reaching the right answers requires intellectual ability, rigor, and courage, as well as sound instincts. It is one thing to say in general terms that you support not legislating from the bench when you are surrounded by like-minded folks; it is something else to apply that principle in specific cases when the media, protesters, and several of your intelligent colleagues are pushing you–you, personally, with no place to hide–in the opposite direction.

The only assurance we have that Miers has a proven, conservative judicial philosophy and these other qualities is by word of mouth from a very small circle of folks with whom she has worked at the White House. And some people in this circle are nonlawyers, or themselves have a track record on key issues that is problematic. First among these, of course, is the president himself. The smaller the circle, the less satisfying the assurance.

There is very little reassuring in Miers’s paper trail, of either her intellectual rigor or her conservatism. Her instincts on affirmative action, for instance, appear to be terrible, and this is one of the key issues with which the Court deals. More broadly, there is no evidence of her willingness to stand up to the legal establishment; indeed, the evidence is all to the contrary.

I cannot prove that Miers will be a bad justice. But that is not where the burden of proof lies. With stakes this high, conservatives should not be satisfied to roll the dice. To be worthy of our support, conservatives must be confident that she will be a good justice. At the least, we must be persuaded that the president could not find a confirmable nominee substantially better than Harriet Miers. That is simply not the case.



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