JURIST Contributing Editor William G. Ross of Cumberland Law School, Samford University, says that while the nomination of Harriet Miers to the US Supreme Court is not without its problems, the selection of close presidential associates for the high court is an historical commonplace, and several criticisms of Miers' background and education are artificial and unfair...
Although most scholars agree that the Framers of the Constitution expected the Senate to play an active role in the confirmation process, the Framers offered few insights into the criteria by which they expected the Senate to evaluate Supreme Court nominations. Records of the debates during the convention indicate that the Framers were primarily concerned that the Senate help to ensure the appointment of meritorious candidates rather than personal favorites. The Framers appear to have evaluated merit in terms of professional credentials and personal integrity.
During the debate on ratification, Alexander Hamilton explained in No. 76 of The Federalist that the requirement of senatorial advice and consent "would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Hamilton contended that the President "would be both ashamed and afraid to bring forward...candidates who had no merit other than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."
As Hamilton's comments suggest, the Framers may have opposed personal favoritism only to the extent that favorites were otherwise unqualified, a view to which senators generally appear to have subscribed throughout the past two centuries.
While Miers's critics complain that she has obtained the nomination as the result of who she knows rather than what she knows, Supreme Court nominations have never resulted from standardized tests, civil service examinations, or job applications. To paraphrase Max Lerner, Supreme Court nominees are not immaculate conceptions brought by presidential storks. Nearly every Justice has had some type of political connection which has brought him or her to the President's attention. For example, David Souter had close ties to John Sununu, President George Bush's chief of staff, and John G. Roberts, Jr. was well known in Republican political circles. At least Miers's connections, unlike those of the President himself and so many others in his Administration, are the product of her own efforts rather than those of her family.
A number of Supreme Court Justices have been personal friends of the President and many others have served in the President's Cabinet or in other prominent posts in his administration. The Senate usually has not raised the hue and cry of cronyism when the nominee has been reasonably well qualified.
David Davis, for example, was Lincoln's friend and executor and had served as manager of Lincoln's 1860 presidential campaign, but the Senate did not complain about cronyism when Lincoln nominated him to the Court in 1862, even though his experience as a provincial lawyer and state judge would be considered inadequate by many of Miers's critics. Likewise, the Senate was not troubled in 1925 that Calvin Coolidge nominated Harlan Fiske Stone, his friend, Amherst College classmate, and Attorney General. Since Stone had served as dean of the Columbia Law School and partner at a major Wall Street law firm, his credentials might be deemed sufficient by the critics of Miers.
Although Harry Truman often is criticized for appointing to the Court four personal friends who became mediocre Justices, this criticism is generally focused on mediocrity rather than favoritism. Often overlooked is the fact that Truman's predecessor, Franklin D. Roosevelt, appointed several Justices with whom he had close personal connections. Several had served in his Cabinet, and some were his poker buddies. Felix Frankfurter, who served as Roosevelt's unofficial advisor and confidant, cleverly curried favor with Roosevelt for years before his nomination, showering the President with sycophantic flattery and publicly supporting Roosevelt's Court-packing plan, which he privately loathed. Frankfurter, however, was far more than a mere crony of the President. Long before his nomination to the Court, he had distinguished himself as a pre-eminent constitutional scholar. Few persons in the nation's history have thought more profoundly about the Court's role in the American political system.
Similarly, John Kennedy escaped criticism for nominating Byron R. White, his old Navy buddy, Colorado presidential campaign manager, and deputy attorney general because White had distinguished himself in private practice and government service. Kennedy's appointment of Arthur Goldberg, his friend, advisor, and Secretary of Labor, likewise stirred little controversy because Goldberg was widely acknowledged as a bright legal mind. The brilliance of Abe Fortas similarly blunted charges of favoritism when Lyndon Johnson appointed his longtime personal attorney and political advisor to the Court in 1965, although senators questioned Fortas in detail about his close ties to Johnson. Senators were much more skeptical of Johnson's 1968 nomination of his Texas crony Homer Thornberry, whose professional attainments were thin.
This history suggests that complaints about cronyism are a function of concerns about lack of qualifications. There are at least two other reasons, however, for objecting to the nomination of a presidential crony.
The first reason is that the Justice may lack sufficient independence. Although life tenure removes incentives for a Justice to curry favor with the President by whom she was nominated, a Justice naturally may feel a lingering loyalty to the person to whom she owes her office. The most famous example are the three Truman appointees who were the only Justices to support Truman's weak constitutional arguments in favor of his seizure of the steel mills in order to avert a strike during the Korean War.
A second and related reason is that a Justice who is a close friend or associate of a President may breach the separation of powers by continuing to act as a presidential adviser. Fortas, for example, remained in almost daily contact with Johnson during the three and a half years remaining in Johnson's term and helped to draft at least one of his State of the Union addresses. These contacts contributed to the Senate's refusal to confirm Johnson's nomination of Fortas to the chief justiceship in 1968. Since Fortas, no Justice has had any close connection with a president, and Fortas is often cited as an example of why presidents should not nominate close personal associates to the Court.
The danger that a crony will lack sufficient independence or maintain one foot in the executive branch of government is mitigated to the extent that a Justice is likely to continue to serve on the Court long after the President who has appointed her has left office. Even encounters between the Marble Palace and the White House during the duration of one presidential term, however, may diminish public respect for the Court as an independent branch of government.
These issues of judicial independence and separation of powers provide a valid ground for opposing the confirmation of a nominee who is otherwise well qualified. They are even more important when there are doubts about a nominee's qualifications since an intellectually weak Justice may be unduly inclined to permit personal or partisan allegiances to influence her judicial behavior. During the Senate Judiciary Committee's hearings on Miers, senators should question Miers closely about the type of relationship she anticipates having with Bush if she is confirmed.
Since cronyism presents more potential problems when a Justice lacks stellar qualifications, the Senate needs to closely examine Miers's qualifications, which are not clearly brilliant. In conducting this inquiry, however, the Senate should consider that a nominee may be well qualified for the Court even though her background is different from that of most of the other present Justices. Many of Miers's critics are unfair in expecting her to conform to a rigid and in many ways artificial standard of excellence.
Although many of Miers's critics complain that her lack of judicial experience is a significant disability, approximately one-third of the Justices never have served as judges. Although every Justice appointed during the past thirty years has served as a Court of Appeals judge, several have been on the bench for only a short period of time. Souter's tenure was so short that he had not even written an opinion, Thomas had served only one year, and Roberts only for two years.
To a certain extent, Miers's lack of judicial experience is an advantage. The Supreme Court benefits from having Justices whose professional experiences are diverse. An ideal Court would contain men and women who had served as appellate and trial court judges, partners in both elite and non-elite law firms, government attorneys, elected state and federal officials, and law professors. The present Court does not have such diversity. O'Connor was the last nominee to have served in an elective office, and Miers and O'Connor are the only Supreme Court nominees during the past thirty years who have not served as judges of the U.S. Court of Appeals. Experience as a federal appellate judge increasingly has been viewed as a virtual prerequisite for a Supreme Court appointment. Such a lockstep career path generates a narrowness of judicial vision.
Critics of Miers's lack of judicial experience seem unimpressed by her significant experience as an attorney, including her partnership in a major Texas law firm, her presidency of the Texas Bar Association, and her prominence in the American Bar Association. Only thirty-four years ago, such credentials were regarded as quite sufficient when Nixon nominated Lewis Powell, whose principal credentials were his presidency of the American Bar Association and his distinguished record as a Richmond, Va. attorney. Miers probably has more practical experience as an attorney than any present member of the Court. Since the Court's decisions have such a profound impact on practicing lawyers, the Court surely would benefit from having at least one member who had extensive experience as a lawyer. The widespread denigration of Miers's practical legal experience is an example of the growing tendency of elites within the legal profession to distance themselves from the concerns of practicing attorneys and the realities of the day-to-day practice of law.
Opponents of the appointment of Hugo Black in 1937 sneered because Black's only previous judicial experience was as a part-time judge of Birmingham's lowly police court. It is ironic that many of Black's detractors were liberals, for Black's service at the judicial grassroots helped to mold Black's empathy for criminal defendants and racial minorities, which influenced landmark Supreme Court decisions promoting racial justice and fairness in criminal procedure. Similarly, Miers's broad grassroots experiences, including her legal practice and her term as a member of the Houston City Council, may provide her with insights lacking among Justices whose experiences are confined to the more rarified backgrounds of the federal bench, legal academia, and the U. S. Supreme Court bar.
It also is unfair for Miers's critics to complain that she has not written about legal issues, for few Supreme Court nominees have had substantial legal publications. John G. Roberts, Jr., for example, was widely hailed for his brilliance despite a paucity of published writings. Indeed, the absence of such publications has become an advantage to a nominee since it deprives her critics of fodder with which to oppose her nomination. Particularly since Robert Bork's massive "paper trail" helped to sink his nomination in 1987, Presidents have been loath to nominate persons whose statements about constitutional issues could provide grist for senators to oppose their nomination. This is a pity, for persons who have thought deeply about legal issues often also have spoken and published widely about their views. But one should not blame Miers for failing to have done what other nominees have not done.
A much more valid criticism of Miers is that her only published writings the monthly columns she produced as president of the Texas Bar Association during 1992-93 were often awkward and obtuse. Skeptical of various commentaries which have derided these columns, I read them for myself and came away shaking my head in dismay. Although most are not as excruciatingly illiterate as some commentators have suggested, they are rife with verbosity, mangled syntax, and grandiose generalities about such subjects as civility, diversity, efficiency, and public service. Some are so vague and meandering that a reader cannot easily identify any central theme. While state bar presidents hardly are expected to express Deep Thoughts in their columns for state bar journals, Miers's columns are fluffy even by the standards of the genre. Since Miers may have dictated these or dashed them off in a hurry, they do not necessarily represent the quality of her writing or her thinking. But they are one of the few present recorded clues to her intellectual abilities.
Much of the opposition to Miers also is unfair insofar as it appears to be based on the fact that her undergraduate and law degrees are from Southern Methodist University. If confirmed, Miers would become the first Justice appointed since Warren E. Burger in 1969 who lacked a degree from an ultra-prestigious university. Of the twelve Justices appointed before Miers, each one received a law degree from Harvard, Stanford, Yale, or Columbia. Harvard Law School alone was the alma mater of eight of these Justices. The undergraduate backgrounds of these dozen Justices are similarly elite. Four were Stanford alumni, four graduated from Harvard College, and another is a Cornell graduate. As a graduate of Stanford and the Harvard Law School, I am delighted that my colleges are so well represented among the Justices, but I must admit that many talented persons have graduated from other institutions, even ones which are not favored with high rankings. In this context it's ironic that some elite academic commentators who complain of cronyism seem to regard Miers as unqualified because, having been educated elsewhere and having travelled in different circles, they are not personally acquainted with her. "If we haven't heard of her, she must not be any good!," they seem to be saying.
Critics of Miers also might consider that Miers, like O'Connor, encountered significant obstacles in her career because she came of age at a time when women attorneys still suffered from crippling discrimination. Although some critics of Miers's nomination have correctly argued that a woman nominee should not be evaluated by lower standards than a man, it is proper to consider that Miers's accomplishments are more impressive when one considers that she spent at least the early part of her career in a highly discriminatory environment.
Miers's record also seems more impressive when one considers that she is one of the few Supreme Court nominees who has not come from a particularly advantaged socio-economic background. Moreover, as an unmarried person, she has not had the benefits of a spouse who could have helped her perform many of life's mundane tasks and might have provided professional or social connections which would have eased her way in the world.
While Miers is much better qualified for the Court than many of her critics allege, this does not necessarily mean that her credentials rise to the level that senators and the public should require. Although there is little doubt that she could perform credible work, Americans have a right to demand more than mediocrity in a Supreme Court Justice. The Senate therefore needs to conduct an extensive inquiry into her professional qualifications. It also should make certain that her record demonstrates that she has the personal integrity Americans demand of those who sit on their nation's highest bench. Finally, the Senate needs to consider carefully whether she could maintain sufficient independence from the Bush Administration.
William G. Ross, a JURIST contributing editor, is professor of law at the Cumberland School of Law at Samford University in Birmingham, Alabama. His publications include several law review articles about the appointment of federal judges. His website is williamgeorgeross.com.