My first reaction after President George W. Bush nominated White House counsel Harriet Miers to the Supreme Court was: Ohmigod. My second was: Why do we care so much?
Begin with ohmigod. I don’t want to be here, and I resent Mr. Bush for putting me here. If the Miers announcement had been a computer, I would have hit “refresh.” I felt a vast wave of preemptive weariness, like some spidery anorexic cyclist at the ribbon-end of a mountain road in Vermont. I saw all the climbs and twists that lay before me—do her friends like her? Does she work hard? What were her grades in law school? Has she read Justice Holmes’ dissent in Lochner? Does she pat small children on the head?—and I wanted no part of it. Spare us the research, the details, the Googling, the blogs, the op-eds, the talk shows, the hearings, the speeches; spare all of us all of it.
Conservative defenders of the Miers pick attribute such violent and visceral reactions to snobbery: Our wise President is being second-guessed by a bunch of Beltway elitists and Ivy Leaguers who disdain the horny-handed daughter of toil nurtured at Southern Methodist University. But this charge is boob bait. Many leaders come from nowhere before rising to the top. Ronald Reagan went to Eureka College; Richard Nixon went to Whittier College; Abraham Lincoln went to no college. Ms. Miers had as many advantages as these men, or more. She only has fewer achievements.
Or perhaps the Miers backlash is guildism—suspicion of anyone who has not approached the Supreme Court by the traditional routes of the judiciary or constitutional law. If that were the reason, it would be a bad one. The list of justices who were never judges before they rose to the Supreme Court includes some stately names, from John Marshall to William O. Douglas. Hugo Black was a police-court judge for all of two years. If the business of America is business, it’s not obvious that having a former corporate lawyer like Ms. Miers in the mix of SCOTUS would be such a bad thing.
The real reason her nomination sticks in the craw is the brass-and-leather whiff of the Praetorian Guard house. The ancient Praetorian Guard was an elite military unit that guarded Rome’s emperors and sometimes murdered them. The modern Praetorian Guard is the penumbra of family and cronies that, under the American imperial Presidency, is accorded unseemly attention and respect. Some Presidents look to it for actual officeholders. Bill Clinton put his wife in charge of health-care policy. John Kennedy put his brother in charge of the Justice Department. Mr. Bush seems to find the Praetorian Guard especially seductive. There were the Texas League Texans he sent to FEMA—Joe Allbaugh, Michael Brown. There was the way his running mate emerged from a search committee headed by—Dick Cheney. Look no further! Harriet Miers emerged in the same way, helping to vet judicial nominees. At least she tapped John Roberts before herself; gentlemen first. This is an elitism far more restrictive than anything Ms. Miers’ critics are charged with. Beltway/Ivy League elitism embraces anyone who works in the federal government, or who graduated from one of seven old colleges. The President’s elitism embraces anyone who works down the hall. He looked out over what Tom Wolfe calls “this wild bizarre unpredictable hog-stomping Baroque country of ours” and whom did he see? The woman sitting next to him.
Praetorianism can work sometimes, just like throwing darts at a board. Dick Cheney is a smart, competent Vice President. But in the wake of Michael Brown’s debacle, Harriet Miers looks like Rita following Katrina.
The second point is larger than Harriet Miers and covers all nominees for the last 40 years or so. Why do we care? We didn’t seem to care so much at first. Oyez, the Web site of the Supreme Court, says of John Blair (associate justice, 1790-95) that he “left no mark—for good or ill—on the nation’s jurisprudence.” He had been a delegate to the Constitutional Convention, though he didn’t say one word there. Bushrod Washington (associate justice, 1799-1829) was a tribute to his Uncle George. Brockholst Livingston (associate justice, 1807-23) was a sop to the mighty Livingston family of New York. He had also killed a man in a duel (confirmation hearings were not then what they now are). If Presidents and the Senate took justices rather casually, some justices took the Supreme Court rather casually. The first chief justice, John Jay (1789-95), quit to become Governor of New York. In 1800, he was nominated and confirmed to become chief justice once again, but he turned the job down.
Then, of course, there was John Marshall (chief justice, 1801-35), who found in our Constitution—Thomas Jefferson would say he hammered them on, like cedar decks—a host of principles, from judicial review to the sanctity of contracts. The Supreme Court and its justices could indeed make a difference. A sacred responsibility or a bald power grab? Perhaps a little of both. The genius of our system, as the historian Forrest McDonald has observed, is its give: The relative weight of the branches of the federal government, and of the states, is not carved in stone but shifts over time, as ambition and circumstance dictate. Absolutists might not like such a state of affairs, but the alternative can be civil war.
This state of flux does not commit us to any theory of constitutional evolution, or to resigning ourselves to the mix we have at any one time; rather the reverse. If the Supreme Court has been behaving like a super legislature, then it is time for the court to take in sail. Congress could perhaps make it do so, by limiting its purview, but it won’t. That means Presidents have to appoint justices of modest inclination. That doesn’t mean justices of modest ability. In a better world, Harriet Miers’ appointment shouldn’t matter. Justice Miers wouldn’t bring that world about.