Bench Memos

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Not Souter but Whittaker?


David Frum’s diary this morning raises some very worrisome questions about Harriet Miers. He quotes a December 2004 Legal Times article on the occasion of her becoming White House counsel, in which an anonymous official says of Miers that “she can’t make a decision, . . . she can’t delegate, she can’t let anything go.” The article summarized how some in the White House viewed Miers in her previous role as White House deputy chief of staff, that she had “a near-obsession with detail and process.” Frum confirms a Washington Post report that Miers “was notorious for personally correcting the punctuation in White House memos.” (My students would say the same of me, but hey, I’m their teacher!)

This puts me in mind not of the “is she another David Souter?” problem, but of another possibility altogether. Is she another Charles Evans Whittaker? Whittaker, who practiced corporate law quietly in Kansas City for most of his career, was appointed in rapid-fire succession to the U.S. district court (1954), the Eighth Circuit (1956), and the Supreme Court (1957), all at the urging of Herbert Brownell, Eisenhower’s attorney general.

Whittaker, 57 when he was appointed, was off the Court five years later (to be replaced by Byron White in 1962). His tenure was so short because he found the nature of the work on the Court too stressful for him, and he wound up in Walter Reed hospital with a nervous breakdown. According to one brief biography, Whittaker was so detail-oriented and unable to delegate work to his clerks, so obsessed with mastering every remote factual consideration in the cases before the Court, that he was “working six to seven days a week [and] putting in seventeen hours a day.” He confided to friends that he missed his less stressful work presiding over trials in the district court. Ultimately he found it simply impossible to function: “He lost his appetite and suffered from deep depression. He could not concentrate and found it difficult to write a simple sentence. The stress of the job had broken him.”

I want to be careful here. I don’t know anything firsthand about Harriet Miers. It would be outlandish to speak with confidence of any shortcomings on her part without far more information than I have noted above, or to make predictions of her personal capacity to handle the pressures at the Court. For all I know, Miers could handle the stress of decision-making at the Court’s level just fine. But David Frum’s remarks on Miers’s reputation at the White House brought Whittaker inexorably to mind.


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