At 8:00 A.M. Monday morning, President George W. Bush announced that he would nominate White House Counsel Harriet Miers to the seat held by Sandra Day O’Connor as associate justice to the United States Supreme Court. Almost immediately, the chorus of complaints was in full swing.
Most of the criticism has focused on Miers’s lack of judicial experience. Conservatives and liberals alike have said that it’s risky putting someone on the Court whose views on critical issues are unknown. The critics are especially adamant that Miers’s nomination is deficient because she lacks a track record as a judge. Critics also complain that Miers comes to the Court from years of close association with the president. They assert that this cannot replace service as a judge.
The criticisms of the president’s selection are far off the mark. There are three enormous flaws in the Miers-bashing statements.
First, the notion that one needs a judge to serve on the Court runs contrary to dozens of appointments stretching back to the beginning of the nation and forward to appointments as recent as Justice William Rehnquist. John Marshall was not a judge before going on the Court but went on to become one of the foundational figures in American jurisprudence. Robert Jackson wasn’t a judge before sitting on the High Court bench. Nor were Louis Brandeis, Felix Frankfurter, William O. Douglas, Harlan Fiske Stone, or Earl Warren. Hugo Black had a year’s service as a police-court judge. Like or dislike what these men stood for, all left their mark on the Court and on the law. No one who looks back over the history of the Court can say that these judges were less-influential, less-important, or less-capable justices than their colleagues who had prior judicial experience.
There are plenty of accomplished judges on the federal bench; many more on the state courts; and more than a few would be excellent appointees to the Supreme Court. My own favorite candidates for this position in fact are sitting judges. But the Court already has eight members who were judges before coming to the high Court. The addition of a lawyer with experience in the corporate world (a serious deficiency on the current court) as well as extensive experience with the legal issues that come across the president’s desk will make the Court a stronger, not a weaker, institution.
Second, there is a fatal conceit that we can and should look to ascertain a nominee’s personal views on a variety of specific issues that might come before the Court. That is exactly the opposite of the rule of law. The rule of law demands that judges adhere to legal rules that are set forth by others, that the job of the judge is to interpret and apply the law, not to promote personal visions of good law. The whole structure of our legal system–from life tenure to the nature of the briefing and decision process to the requirement of written decisions explaining the judges’ views–is designed to insulate judges from external pressures and to assure their fidelity to the law. We need to know that potential judges are competent to read, understand, and interpret the law and that they have the inclination and temperament to do so. We do not need to know their personal beliefs.
Third, the critics, both left and right, do an injustice to the President as well as to Miers. The constitutional design is that the President selects judges. He selects judges he has confidence in. We vote for the President we trust, and he gives us appointees he trusts. The President told us what sort of judges he was looking to appoint and the American people elected him–after his opponents made this a key campaign issue.
The fact that the President has worked closely with Miers, knows her well, and has faith in her is a good thing. It is good for conservatives, as the president has made clear his own embrace of conservative principles, and we can expect that someone he has such great comfort with shares those principles. It is good as well because the president has also made clear his commitment to judicial–as opposed to political–conservatism, to having judges who respect their circumscribed role.
The Constitution gives the president primacy on appointments of officers of the United States, including judges. It gives the Senate a far smaller role, following nomination, in safeguarding against misuse of the appointment power. It does not give the Senate an equal voice in appointments. As so ably stated in Federalist No. 76:
In the act of nomination, [the president’s] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.
Add the word “or woman” after “man” in that statement, and you have the prescription to be followed today.
–Honorable Ronald A. Cass, President of Cass & Associates, PC, a legal consultancy in Great Falls, Va., is dean emeritus of Boston University School of Law and Co-Chairman of the Committee for Justice.