Jewish World Review Oct. 6, 2005 / 3 Tishrei, 5766

Paul Greenberg

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Madame X: W's latest surprise

http://www.NewsAndOpinion.com | This president is just full of surprises. Which can be great fun. It's a deeply satisfying experience to watch the punditry mystified, or even pretend not to be, by his latest nominee to the Supreme Court of the United States.

At this point, there may be no better description for Harriet Miers than Unidentified Woman in Background.

Madame X may not remain a mystery for very long, but the 15 minutes of non-fame she's enjoying makes for a delicious break from the 24/7 over-exposed world that threatens to overwhelm us with data and deprive us of judgment.

Let's enjoy this empty moment, Gentle Reader; it may be as close to peace as today's too whirling world comes. Indeed, this momentary peace may be gone by the time you read these words. The welcome blankness is already being filled by a flood of words, words, words — our busy substitute for discernment. But the stunned silence ("Harriet Who?") was wonderful while it lasted.

Counselor Miers' great advantage is that she has no clear paper trail — and won't if this administration can keep its confidences confidential. Which has been a challenge for every presidential administration since the one headed by G. Washington, who was the most discreet of gentlemen and generals.

It's a great advantage to be a mystery candidate, a Stealth nominee whose trail leaves behind only a stream of shiny platitudes that confounds any attacking missiles. For example: "It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts in our society . . ." — H. Miers, Oct. 3, 2005.

No need to mention which founder's vision, Hamilton's or Jefferson's, James Madison's or John Marshall's, the lady would consider the proper one. To choose between two visions only needlessly excites those who believe in the other. Well said, Counselor Miers.

Or rather, well unsaid. For the more decisions a nominee has rendered, the more books and articles written, the more Scalia-like indiscretions committed in public fora, the more ammunition for the critics. In this nominee's case, the critics may find themselves deprived of even the kind of witty asides John Roberts committed right and right as an eager young aide in the Reagan administration.

The ideal nominee for the bench should present a perfectly platonic emptiness, an ideal form without material content, and for the moment Ms. Miers fits the bill exactly; she is the perfect, abstract nominee.

Counselor Miers' great disadvantage is also her lack of any clear paper trail, for though she's clerked for a judge, she's never been one herself — a lack of experience her utterly predictable critics pointed out immediately:

"We know even less about Harriet Miers than we did about John Roberts and because this is the critical swing seat on the Court, Americans will need to know a lot more about Miers' judicial philosophy and legal background before they vote for confirmation." —Chuck Schumer, senior senator and nudnik from the Great State of New York.

Gosh, what a surprise to find the senator lacks neither words nor good will on this occasion, too.

The country can only hope that Harriet Miers' will bring to the high court the same lack of judicial experience John Marshall honed to greatness. For to lack judicial experience is not to lack experience. Chief Justice Marshall certainly had no lack of partisan experience, which is one thing the current nominee should have in abundance by now.

When it comes to a lack of judicial experience, the names of some other judges might be familiar to students of American constitutional history: Louis Brandeis, Earl Warren, Hugo Black, William O. Douglas, Felix Frankfurter, Byron White, William Rehnquist . . . . Their contributions to the law were strikingly dissimilar, but they make an impressive roster — and a powerful argument for judicial inexperience in a nominee to the high court.

Counselor Miers' great advantage is that she has earned the complete confidence of this president. Her great disadvantage is the same: Will she be too close to the chief executive to judge with impartiality the competing claims of the legislative branch of the government? (As for the judicial branch, she won't have any trouble supporting its claims to independence if and when she becomes a part of it. That's the human condition: Our own power is always the most legitimate.)

Counselor Miers' great advantage is that she has a wealth of experience off the bench — in corporate law, in managing a huge Texas law firm, and in representing the bar. She did so long enough to learn that the American Bar Association has no business clearing presidential nominees to the bench, having become another political pressure group.

Chief Justice Rehnquist used to stress the importance of drawing judges from "a wide diversity of professional backgrounds" rather than only from the judiciary itself. (Gosh, do you think he could have had his own background in mind?) At any rate, the nomination of Harriet Miers to the high court, like William Rehnquist's, certainly meets that particular need.

Counselor Miers' great disadvantage is that, while her experience in the law may be diverse, her experience in life may not be. The law has pretty much been her life, for she's one of those early-to-rise, late-to-leave-the-office types who, however admirable and useful they are, tend to worry some of us. As has been well said, the law sharpens the intellect by narrowing it. And the law even more than other professions profits by the widest of experiences and broadest of intellects. For the law must take into account and even anticipate the ever fluid contours of the life it would shape. Or it will become but another brittle casualty of reality.

Harriet Ellan Miers now emerges out of the background into . . . what? History, fame, controversy, celebrity? Probably all of the above. All Americans will wish her and the law well as both go under the magnifying glass of public contention. It'll be a test — not only for the nominee but for all those questioning and appraising her. Instead of just another partisan fight, it could prove an education — if we will let it.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. All the quotations in this column were culled from Tuesday's edition of the Democrat-Gazette. Send your comments by clicking here.

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