What it takes to be on the Court.

By

On the left and the right, Harriet Miers is being criticized as an
unqualified hack. This magazine has put Miers at the top of its list
of the Bush administration's 15 worst hacks (see page 25), and many
argue that she doesn't have the qualifications that people look for
in Supreme Court nominees. But Miers's nontraditional background
doesn't preclude a successful career as a justice. As President
Bush emphasized when he nominated her, 41 of the 109 justices who
have served had no judicial experience when they were nominated.
Some of those nominees turned out to be among the most effective
justices in history. Just as importantly, however, others turned
out to be notorious failures.In fact, when presidents choose Supreme Court nominees who don't
have much experience, the results tend to cluster at the
extremes--either very good or very bad. (Compare William Rehnquist,
one of the most successful chief justices, with Abe Fortas, who
resigned under threat of impeachment.) And, in the backgrounds of
nontraditional nominees, there are often clues about their future
performance: The history of crony picks, for instance, is not
auspicious. Lacking reliable evidence of Miers's constitutional
views, the Senate needs to focus on other qualities, such as her
temperament and general disposition. She appears to be a
detail-oriented, not terribly decisive workaholic, which could put
her in the tradition of failed justices (like Harry Blackmun) but
could also make her a successful one (like Lewis Powell). Only by
pushing her intellectually during her confirmation hearing can the
Senate begin to predict which path she will follow.

Many of the most successful justices who joined the Court without
judicial experience had distinguished themselves in national
politics at the highest level. The most influential chief justices
fit this model: John Marshall and Charles Evans Hughes both served
as secretary of state; Hughes and Earl Warren were popular
governors. These experiences gave each of these chiefs the
confidence to build coalitions and mediate among competing factions
on the Court. Among associate justices without previous judicial
experience, the most successful also tended to have national
reputations. Robert Jackson was a well- regarded attorney general;
Felix Frankfurter was the nation's leading law professor; William
O. Douglas was the head of the Securities and Exchange Commission;
and Louis Brandeis was nationally recognized as "the people's
lawyer."

Among the Supreme Court nominees without judicial experience, the
least successful were those chosen primarily because they were
presidential cronies. Here, the closest historical analogue to
Harriet Miers may be Tom Clark, who served unsuccessfully on the
Court from 1949 to 1967. Clark practiced law in Dallas for 15
years, served as the civil district attorney of Dallas, and got to
know Senator Harry S Truman as assistant attorney general in 1943.
As president, Truman appointed Clark to be attorney general in 1945
and then promoted him to the Court. Clark was too intellectually
insecure to leave much of a mark: He supported broad executive
power in the fight against communism but joined the liberal
justices of the Warren Court in cases involving desegregation and
criminal procedure. Truman later recanted his choice, saying of
Clark: "It isn't so much that he's a bad man. It's just that he's
such a dumb son of a bitch."

There is no evidence that Harriet Miers is dumb, but she isn't noted
for her intellectual creativity. Instead, she has distinguished
herself in private practice and at the White House through hard
work, discipline, and attention to detail. These can be useful
qualities in a justice, but there are other aspects of Miers's
legal reputation that raise questions. Last year, in an insightful
profile of Miers in Legal Times, T.R. Goldman quoted Miers's White
House colleagues, who suggested that, when she was deputy chief of
staff for policy under Andrew Card, her obsessive focus on details
and process made it hard for her to see the forest for the trees or
to engage the large policy questions. "She failed in Card's office
for two reasons," a former White House official told Goldman.
"First, because she can't make a decision, and second, because she
can't delegate, she can't let anything go."

Still, some detail-focused justices have been successful. Powell was
one. Miers's background is similar to Powell's, although less
distinguished. (Powell was president of the entire American Bar
Association, rather than a state chapter. He also chaired the
school board in Richmond, Virginia.) Powell shows that being a
corporate lawyer may be good preparation for the Supreme Court,
many of whose cases involve private law rather than constitutional
issues. For Miers to follow in Powell's footsteps, she will have to
transcend her loyalty to the president who appointed her.

But there is another model that Miers might follow: that of
detail-oriented justices who are so intellectually insecure that
they are pushed into ideological extremism by their law clerks.
Here, the cautionary tale is Blackmun, who--as Linda Greenhouse's
wonderful new book reveals--spent time correcting his clerk's typos
and fussing over the factual details of cases while delegating much
of the legal analysis and drafting of opinions to his clerks. On
the lower courts today, there are several extremely conservative
judges--such as Karen LeCraft Henderson on the U.S. Court of Appeals
for the D. C. Circuit--who rely heavily on their clerks. These
judges generally follow conservative orthodoxy but fail to exercise
much influence over their colleagues because they lack the
intellectual heft to engage in broader constitutional debates.

M iers had trouble delegating in the White House, but that might
change once she confronts the demands of the Court. And, if she
starts to delegate, to whom will she turn? For the past five years,
Miers has been surrounded in the White House by extremely smart and
accomplished young conservatives. It would be only natural for her
to choose law clerks in the same mold. Justices who lack confidence
and have a simplistic view of the law tend to be more susceptible
to their clerks' influence and therefore rarely diverge from the
party line. If that happens, Miers will follow in the Blackmun and
Henderson models, and she might turn out to be just as conservative
as Republicans hope and liberals fear.

Trying to predict whether Miers will be a pragmatic centrist or a
clerk- driven mediocrity is a difficult task for a confirmation
hearing. But nominees do reveal themselves under the hot glare of
the klieg lights: Blackmun showed signs of the defensiveness and
insecurity that would come to define his tenure. By focusing less
on Miers's personal views about whether life begins at conception
and more on her intellectual confidence and ability to transcend
legal minutiae, senators might begin to illuminate whether she will
be an independent-minded justice or an anxious and inflexible
conservative crony.

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