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Jewish World Review Oct. 7, 2005 / 4 Tishrei, 5766 What qualifies one for the Supreme Court? By Jonathan Turley
http://www.JewishWorldReview.com |
In his announcement of the nomination of White House counsel Harriet Miers
to be an associate justice of the Supreme Court, President Bush concluded
with a simple and direct statement to Congress: "I ask the Senate to review
her qualifications thoroughly and fairly and to vote on her nomination
promptly."
On its face, it seems straightforward enough. Like the president, most
senators speak of "qualifications" as if the term is self-defining or
obvious. Yet, after more than 200 years, neither the Senate nor law
professors have agreed on what constitutes a "qualification" for the
nation's highest court. Indeed, looking over the past 157 nominations (and
42 unsuccessful nominations since 1789), there is little consensus on what
constitutes a truly qualified person to sit on the court.
Most nominees, like new Chief Justice John Roberts, do not face such
questions after years of prominent legal roles, including service on a prior
court. Miers, however, has one of the slimmest resumes in history for a
Supreme Court nominee. A graduate of Southern Methodist University Law
School, Miers spent most of her career as a commercial lawyer in Texas. She
served as the chairperson of the Texas Lottery Commission and a member of
the Dallas City Council. Besides dispensing oversized lottery checks, her
most notable resume item is her friendship with President Bush — serving as
his personal lawyer, staff secretary and later his White House counsel.
Just how good?
To say that Miers is unqualified is not to say that she is without
qualifications as a lawyer. Rather, the question is whether a lawyer must
have an outstanding background to justify one of nine seats on the highest
court. Miers spent decades in the law without making a substantive
contribution to the development of it.
Indeed, in addition to her friendship with the president, Miers' lack of a
record to review (and criticize) is viewed as one of her greatest strengths:
a type of no-qualification qualification.
Not surprisingly, presidents often minimize the role of the Senate in
reviewing their nominees: demanding deference from the Senate for any
nominee with a respectable, if not respected, background who does not
publicly proclaim an intent to run amok as a judicial activist.
For their part, the Democrats appear unable to offer a single coherent
thought on these nominations, let alone a coherent definition of
qualifications. Senate Minority Leader Harry Reid, of Nevada, has left many
people scratching their heads in recent weeks as he randomly proposed names
of everyone but Cher for the court. In addition to Miers, Reid recommended
various Republican colleagues for the court despite their support for
legislation previously denounced by Democrats as abusive and
unconstitutional.
Yet, qualifications have been an issue in past nominations. In 1970,
President Nixon nominated Judge G. Harrold Carswell for the court. While he
had served on the Court of Appeals for the Fifth Circuit, Carswell was
immediately attacked for his less-than-stellar resume (as well as alleged
anti-civil rights views). Described as a "dull graduate of the third-best
law school in the state of Georgia," witnesses chided Carswell's lack of any
scholarly articles or notable opinions. Pro-Carswell Sen. Roman Hruska, of
Nebraska, did not help matters when he defended the nominee by declaring,
"Even if he were mediocre, there are a lot of mediocre judges and people and
lawyers. They are entitled to a little representation, aren't they, and a
little chance?"
Apparently, the mediocre lobby was, well, mediocre. Carswell was defeated by
a vote of 45-51.
Resisting cronyism
If qualifications for the court are debatable, one disqualification has long
been recognized. Though Alexander Hamilton generally encouraged deference to
a president's choice, he stressed that the Senate should reject nominees who
are the product of cronyism. Hamilton wrote in the Federalist Papers that a
president should be "ashamed and afraid to bring forward ... candidates who
had no other merit than that ... of being ... personally allied to him, or
of possessing the necessary insignificance and pliancy to render them the
obsequious instruments of his pleasure."
Miers' nomination has widely raised outcries of cronyism, a practice that
has long been out of favor for the esteemed court. Few have seriously argued
that Miers would be on the short list, let alone the nominee, for the court
on the basis of merit. The primary objection to Miers has nothing to do with
her likely voting record, but whether it is true, as the president insisted
in a rare Rose Garden defense this week, that she was "the best person I
could find." Leading conservatives have refused to accept that claim and
denounced the nomination quite vocally.
Their anger is understandable.
This was the moment that conservatives had long waited for. For the first
time in decades, the court will have a stable conservative majority. This
nomination was expected to herald in a type of conservative renaissance on
the court, crafting a new bold vision in legal areas long arrested by 5-4
divisions on the court. With Chief Justice Roberts, Bush had the ability to
appoint the conservative equivalents to Oliver Wendell Holmes and Louis
Brandeis — gifted legal intellects who could bring depth and breadth to the
court's new vision. Instead, Bush chose someone of greater personal than
historical significance.
The question is now whether the Senate is capable of meeting Hamilton's test
in resisting a nomination offered primarily for a president's pleasure. It
seems more likely that the dream of a judicial conservative renaissance will
succumb to a combination of blind loyalty and presidential whim. Let no one
say qualifications do not matter. In securing this questionable
confirmation, Bush will be remembered by many as a myopic president who
could not see a legacy waiting just beyond his small circle of friends.
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JWR contributor Jonathan Turley is a law professor at George Washington University. Click here to visit his website. Comment by clicking here. © 2005, Jonathan Turley |
Arnold Ahlert | |||||||||||
