What it takes to be on the Court.

by Jeffrey Rosen | October 17, 2005

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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