Miers: mired?

Until now, I've kept out of the Miers Supreme Court nomination brouhaha. But I do have a few observations, mostly about the reaction to her nomination, and about Supreme Court nominations in general.

It seems to me that, ever since Bork, Supreme Court nominations have become highly emotional and conflicted situations, and this one is clearly no exception. Bush may have nominated Miers partly in an attempt to avoid the bitter divisions of the Bork battle; if so, his strategy has most definitely failed.

My own position on Miers herself? It's way to early to say what this woman is actually like and what sort of justice she'll make. Why not just wait for the hearings before starting to squawk so loudly? Right now it's all just idle speculation and guessing: much ado about nothing.

No, she's never been a judge. Yes, she's a friend of Bush's. No, she didn't attend an Ivy League school. Sorry, but I just don't consider any of those facts definitive evidence of anything. What I know about the Supreme Court indicates that the most salient characteristics its justices need are knowledge of the law, intelligence, and reasoning ability, and these are hardly the exclusive provenance of former judges or Ivy League graduates.

The whole thing is a shape-shifting, moving target. What the pundits seem to want in a SCOTUS nominee is precisely whatever it is that the present one lacks. If you don't believe me, try this on for size. It's a question-and-answer discussion with legal scholar John Yoo on the occasion of the Roberts nomination--remember that? It wasn't so terribly long ago, as I recall. (I have taken the liberty of highlighting in boldface the especially relevant parts):

How can someone that has never been a Supreme Court Justice be nominated for Chief Justice? For me it seems as if a person is becoming "police Chief" yet, was never an officer. Does the public have any say in this matter?

Surely the public has a say, by pressuring the President and Senators to demand certain qualifications for the Chief Justice position, if that is what desired. I want to note that several prominent political and legal leaders over the last few years have been calling for the appointment of Supreme Court Justices who have no previous judicial experience. This was, in fact, the normal practice for many parts of our history.

And then there's this:

Philadelphia, Pa.: If I heard the news correctly this morning: John Roberts has never confronted a witness in a trial and has never advised a client of the client's rights. I guess John Roberts should be glad that one does not have to be an attorney to serve on the Supreme Court as John Roberts has never been an attorney. Will the lack of practicing legal experience be any factor in these hearings?

John Yoo: John Roberts has not been a trial attorney, but then many attorneys who practice law in this country have never conducted a cross-examination in a courtroom. Roberts has appeared in court many times however. He has practiced in the appellate courts, which is probably far better preparation for work as a Justice than practicing in the trial courtrooms. I think your observation about Roberts's lack of trial experience is also probably true with regard to most of the other members of the Supreme Court.

I don't expect this lack of trial experience to be a significant factor in the hearings. Over the years, some have called on Presidents to nominate lawyers with more of a diverse background to the Court. It is, right now, composed heavily of former appellate judges with an unusually high number of law professors. Yet, for roughly the last 30 years, Presidents of both political parties have nominated sitting federal judges to the Court. This was not the case in the past, which has witnessed Courts with former Senators, governors, cabinet members, and leaders of the bar as Justices. If Roberts is confirmed, the only member of the Court who will not have been a sitting federal judge at time of appointment will have been O'Connor, who was herself a state judge at the time.

Roberts' lack of trial experience ended up not mattering. He silenced all his critics--well, not all of them, but many of them--quite effectively in his hearings, and made it very difficult for them to press the case against him successfully. Ms. Miers will either do that or she will not do it--and that's a great deal more important than where she happened to go to law school many moons ago.

The "cronyism" charge, on the other hand, makes me think back to the time President Kennedy picked his brother Robert to be Attorney General--now, there was cronyism! (actually, nepotism, but let's not get too technical here):

President Kennedy named his brother Robert attorney general so, as he put it, his brother could "get some legal experience" before getting a job. Congress was not amused by the joke, and although Robert served ably, it later passed a law forbidding the President to make appointments of close relatives to federal office.

Thank goodness for that law. Otherwise, no doubt, Bush's critics would have to deal with his appointment of nephew George P. as Supreme Court Justice--after all, he's got the law degree.

People are often flummoxed by Supreme Court appointees because they'd like to be able to control them and predict exactly what the justice is going to do for the rest of his/her life. That will never be strictly possible (although sometimes, of course, it works out that way). There tend to be a fair number of surprises, because once a nominee is on the Court, all bets are off. It's a bit like marriage used to be when it was pretty much for life and the stricter rules about divorce made it very very difficult to leave: a leap of faith into an unknown future.