Opening Argument – The Lesson Of Miers: Excellence Should Be Paramount

National Journal

"The Supreme Court [grapples with] the widest range of issues of importance to the law. To give some recent examples: What innovations are patentable and what should be the role of juries in deciding whether a patent is valid or has been infringed? Are police officers entitled to ask the passenger of a car to step outside when they have made a lawful traffic stop? Does the First Amendment protect a government worker if his boss thinks his complaints are a nuisance to the work of the office?…

"All these questions have two sides (at least) and present real puzzles, or else they would have been settled at some lower level. None of them will yield simply to good instincts and a pure heart ….

"Once a conclusion has been reached it must be announced in an opinion setting out the circumstances, the competing considerations, and the reasons for that conclusion [to guide those] dealing with the problem in the future…. The courts are the only organs of government whose job it is not only to decide contentious issues but to explain those decisions. Its most important product is those explanations, on which the enduring effect of its decisions depends."

A justice "without the strength of mind to pick her way through these intricacies and the skill to explain her decisions in understandable and compelling prose," adds Fried, "will flounder in a number of ways that would be disastrous for the law." She might "spin a web of confusion"; or "fall under the sway of one or more of his or her colleagues and so disappoint the expectation that a fresh and independent mind has been added to the Court"; or leave the writing to young law clerks "without wisdom, experience, or a constitutional mandate to help run the country."

Measure Miers against that standard. Her writings are neither clear, nor coherent, nor even grammatical. Many are (as columnist David Brooks put it) a "relentless march of vapid abstractions." Her initial responses to a routine Senate Judiciary Committee questionnaire were marred by constitutional illiteracies. I have seen no evidence that she has ever in her 60 years said (or written) anything especially insightful, wise, or witty about law or any other serious subject.

Miers’s meager public record on important issues also exudes confusion and inconstancy, not clear thinking. Consider abortion, one of the few issues on which she has any record at all.

In her responses to a questionnaire from Texans United for Life in 1989, when she was running for the Dallas City Council, Miers checked "yes" to all 10 questions about whether she agreed with various anti-abortion stances. They included a vow to "actively support" both a federal constitutional amendment to ban all abortions except to save the woman’s life, and state legislation to reinstate a similarly broad 1973 Texas abortion ban. No justice who wants abortion banned, even for rape victims, would hesitate to overrule Roe’s almost unlimited abortion right.

But four years later, Miers did a 180-degree turn, suggesting in a speech to the Executive Women of Dallas that women should be free to abort their fetuses:

"The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s [sic] right to decide for herself whether she will have an abortion," Miers’s speech text says. Then come two sentences about activities "in public places or public schools" and "the law and religion." Then this: "The underlying theme in most of these cases is the insistence of [sic] more self-determination. And the more I think about these issues, the more self-determination makes sense. Legislating religion or morality we gave up on a long time ago."

Miers did seem predictable in one area: She would have rubber-stamped even the most grandiose claims of presidential power made by President Bush. This is a woman who as White House counsel has inherited and perpetuated some of the most sweeping claims of presidential power in modern history. These include Bush’s claim of power to have the military seize, imprison indefinitely without meaningful due process, and coercively interrogate anyone in this country or the world whom he considers an "enemy combatant." Miers also presumably approved the White House’s ongoing battle against efforts by Sen. John McCain and others to ban "cruel, inhuman, and degrading" treatment of such prisoners.

And by calling Bush the most brilliant man she has ever met, sending him sycophantic notes, and sprinkling speeches with paeans of praise, Miers has carried loyalty to the point of toadyism.

Such a second-rate, compliant courtier was a bad bet to act as a check on presidential overreaching. Bush needs to do much better. A first-rate man would be better than another second-rate woman. A first-rate woman would be better still.