October 18, 2005

MORE ON MIERS: I’ve got an oped in today’s Wall Street Journal on problems with the Miers nomination. Excerpt:

It’s entirely possible, of course, that if confirmed, Ms. Miers will become a stellar Supreme Court justice; history has produced surprises before. Earl Warren, after all, was a politician, and expected to be easily manipulated by the court’s brighter intellects. William J. Brennan, Jr., was a state judge of no special reputation when Eisenhower nominated him, yet he so came to dominate the Court that some observers referred to the early Rehnquist Court as the “Brennan Court.” Perhaps Ms. Miers will prove a similar surprise, though conservatives may not find the examples of Warren and Brennan entirely comforting.

Nonetheless, after the John Roberts nomination, people on both the left and right had high expectations for the next nominee, and President Bush has managed to dash those. Ms. Miers, while possessed of a respectable résumé, is not the kind of star that people expected. But the most serious problem with her can be found in the most recent line on her résumé, the one that reads “White House counsel.” The path from the counsel’s office to the Supreme Court is not well-trodden, and for good reason.

Despite charges of cronyism, Ms. Miers is not simply the president’s crony, but his lawyer — formerly his personal attorney, and now his presidential attorney. This has already given rise to paranoid theories from the left to the effect that Mr. Bush is trying to protect himself from prosecution growing out of the Plame affair or the Iraq war. These theories are unlikely, not least because Ms. Miers’s current position would probably disqualify her from hearing precisely those kinds of cases. And even if she were not disqualified, there might be doubts about her objectivity that would undermine the court’s reputation.

But that’s only the half the trouble. The tendency in recent years to nominate judges from the U.S. Court of Appeals to the Supreme Court has led to a certain amount of politicking and positioning by appellate judges who think they have a shot. That’s bad, but surely it would be far worse if future White House counsels started letting hopes of a court nomination distort advice they offer the president.

I think it was a poor choice.

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