Obviously, the best way to be confirmed for a seat on the Supreme Court is to be like Chief Justice John Roberts. Not only is he a lawyer, but so is his wife. Moreover, except for shortish stints to bale money as a $1-million-a-year corporation lawyer, Justice Roberts has spent most of his adult lifetime hanging out with judges or being one.
With his reputation as one of the nation’s foremost younger hair-splitters, Justice Roberts mamboed through the confirmation ordeal, flicking off the cleverest jurisprudential traps set for him by the nitpickiest lawyers in the Senate. When it was all said and done, he was hailed as a jurisprude of great depth and a constitutional scholar almost without peer.
Compare him to Harriet Miers, she of the boxy suit jackets and the presidentially-attested-to evangelical convictions. Justice Roberts went to Harvard College and Law School, while Ms. Miers went to no-name-brand Southern Methodist University. Most of her adult life has been spent as a lawyer representing business interests and playing professional bar-association politics. This led to Ms. Miers becoming the first woman to be president of the Dallas Bar Association and the Texas Bar Association—which is nice, but not exactly a pair of knock-your-socks-off accomplishments. As the head of a big-bucks Dallas law firm, we can assume the lady is loaded.
The biggest trick she has pulled off to date was spotting George W. Bush and enlisting early in the women’s division of his crusade to mess up America. The two of them succeeded beyond their wildest hopes and our wildest fears: Her reward for good and faithful service to her master is a seat on the court, which is probably as good a reason as most others for a Presidential appointment.
The Miers nomination is opposed by some as “blatant cronyism,” as the phrase goes. One wonders if they might not be less het up against non-blatant or more or less concealed cronyism. “Crony,” of course, is but a nasty word for a friend and ally—but who, if not a friend/ally/crony, are you going to appoint? An enemy? A member of the opposition? What would politics here or anywhere look like if people in power did not reward their friends with the lush fruit of high public office? Doubtless it would be better, and double doubtless it will probably not happen in our lifetimes.
Some of the most odious figures in public life are demanding that the President take back the Miers nomination. Boiled down to its essentials, their argument is that, though the woman may be George Bush’s crony, she is not theirs. By what right do they get to put their crony in above the President’s crony? They say he owes them the pick on the basis of their turning out the votes in the last two elections. As politics is practiced, this is a powerful claim: You wouldn’t be in the job if it weren’t for us, so it’s payback time.
Hence, the dustup over Ms. Miers can be seen as a classic political-patronage squabble bearing the color and smell of many another in our sometimes-sordid history. In our era, patronage battles cannot be waged as such, or as they could and were a hundred years ago—back in the time of our ancestors, who were dumber and less enlightened than we. Today, you can go to jail for giving out public-payroll jobs on a patronage basis, and the U.S. Attorney in Chicago is hard at work putting a score of Democratic politicians in jail for that very thing.
A language has been invented for fighting over patronage jobs without seeming to. It involves the use of words like “professional” and “qualified.” When a politician wants his crony appointed, he says that she is a consummate professional and highly qualified for the post. Those with other cronies scream no, she is not.
When it comes to vetting candidates for the bench, the decision as to qualified or unqualified has been left to the American Bar Association, which has, with the rarest of exceptions, accepted any Presidential appointment as highly qualified. The term is so rubbery that anyone but an orangutan with a purple arse swinging from a date-nut tree can be deemed qualified if the politics are right—and if the politics be very right, even the ape gets confirmed.
Since Ms. Miers isn’t only the President’s gal but has been playing bar-association, local, state and national politics for decades, her opponents’ chance of knocking her off on qualification grounds are next to nonexistent. They’ve had to come up with super-qualifications to apply to her.
They’ve upped the standard: Now, to be confirmed, the appointee should be an outstanding constitutional scholar à la the bullroarer Antonin Scalia. Whether Justice Scalia is as deep as they say or just an opinionated man with a stentorian voice must be left for another time. But to assert that the Supreme Court, now or at any time in its past, has actually been a hiding place for constitutional scholarship is to cause tears of laughter to blur the eye.
Only those who can be conned into believing that constitutional scholarship is the same as long-winded slicing and dicing will buy that one. The court has had some outstanding figures on it, even three or four who might have earned the term “great,” but mostly it has been a place where Presidents put their cronies. Whatever deficiencies Ms. Miers may have in regard to her knowledge of the Constitution are easily remedied: She can read a book. There are plenty of them on the topic.
So if this President gets to put this crony on the court, what are the rest of us stuck with? Since Ms. Miers has labored silently in the bowels of politics, where no footprints are left, we don’t know anything about her. All we’ve got to go on are surmises, fears and hopes.
Any hope to be derived from Ms. Miers’ arrival on the court should spring from the very curriculum vitae she is being attacked for. This woman has been a practical, everyday lawyer for years and years. She has had to deal with people who come to lawyers with practical, everyday questions, the first of which is usually: “What is the law on this or that point? I need to know for my business.”
For the last 20 years, answers to that kind of question haven’t been forthcoming from the Supreme Court. During the Rehnquist era, the court’s decisions have been murky and often incomprehensible, regardless of the constitutional scholarship behind them. People have to know what the law is, and they haven’t been getting that from the court. Too often what they have been getting are inapplicable decisions of the sort that invite ever more litigation. We can hope that a Miers type is going to insist that future decisions be concise, precise and useful. We can hope.
Democrats and others fear that Ms. Miers will be the vote that finally reverses Roe v. Wade. If she does, it may not be such a bad thing—and I write this as one who has always believed in the right to choose.
While that right may still theoretically exist in law, in actuality it doesn’t in wide swatches of the United States. In many places, doctors dare not practice abortion for fear of being murdered or otherwise harmed. In many other places, so many restrictions have been imposed that abortions are not available to countless women. In other words, if Ms. Miers goes on the court tomorrow and the next day it overturns Roe, will it make any difference in the lives of millions of women? In states like New York, abortion will still be legal and available; in places like Mississippi, it will be no more illegal and unavailable than it is now.
So from the point of view of women having a right to choose, overturning Roe will make no difference—but to the Democratic Party, it will make a lot of difference. If overturning Roe doesn’t get it out of national politics, at least it will demote it from being a pivotal issue to one of lesser importance. National Democrats will be able to say that it is a state issue now, not a federal one. They will be able to shuck and jive, zig and zag and mushmouth on the question the way politicians must to pick up votes of people on both sides.
If that is a cowardly, even mildly immoral way of looking at things, the alternative is to go on losing elections, to let this never-ending, politically debilitating fight ensure continued Republican misrule. If Harriet Miers slips on a black robe in the near future, it may not be the worst thing.