With John Roberts' smooth confirmation a success for the Bush administration, the President's choice of White House counsel Harriet Miers as Sandra Day O'Connor's replacement makes no promises, at least for now, to fill the void left behind by Roberts's non-controversial confirmation.
Most criticism so far has come from conservatives who feel that Miers' perceived moderation does not sufficiently reflect the conservative values embodied in their presidential choice. CNN quoted "conservative activist" Manuel Miranda as saying, "The reaction of many conservatives will be that the president has made possibly the most unqualified choice since Abe Fortas... The nomination of a nominee with no judicial record is a significant failure for the advisors that the White House gathered around it. However, the president deserves the benefit of the doubt, the nominee deserves the benefit of hearings, and every nominee deserves an up-or-down vote."
In contrast to Miranda's suggestion and the media's sensationalism regarding Miers' lack of experience, many within the legal community have advocated the utility of "outsiders" being brought to the court as a means of diversifying the experiences with which jurists can relate. The process of "professionalization," in which a nominee typically has judicial experience in federal courts, perpetuates only the experiences which jurists may face inside the courtroom, and does little to broaden their understanding of the social and political contexts in which their decisions are made, analysts say.
While the point is well-taken from an academic and theoretical perspective, consider the political realities the President faces as he attempts to secure approval for any nominee. From the start, diversity in terms of gender and race has been salient. With the President's approval rating hovering near 40 percent, his political capital hangs in the balance and offers little certainty in the face of stiff Senatorial opposition. Choosing a candidate from "outside the box," as Senatorial leaders have suggested he should, offers the President a candidate whose lack of judicial record provides few news pegs on which opponents can hang heavy public scrutiny. A story about inexperience lasts only so long in the American news cycle.
Despite having never served as a judge, Miers' achievements in law adorn her record of experience in impressive ways when compared to some of the President's previous attempts to think outside the box. Michael Brown's tenure at FEMA is the most recent and most tragic in a series of less-than-honorable appointees. Shaky credibility pursued Dr. David Hager's appointment to the FDA's Reproductive Health Drugs Advisory Committee when it became widely publicized that he had written a book titled "As Jesus Cared For Women: Restoring Women Then and Now." As a final comparison, consider Bush's appointment of David Wilkins, South Carolina state chairman of Bush/Cheney '04, as American ambassador to Canada. Wilkins had only visited Canada once, and that was thirty years prior while with the U.S. Army Reserve.
Holding nominees to a higher standard is key to ensuring that the Supreme Court retains its credibility in overseeing the just application of law and fair interpretation of the Constitution. Other nominees to important positions may not have received the public scrutiny that their records deserved, but it is essential that the Senate critique Mr. Bush's choice rather than blindly accept her as his own personal envoy to the Supreme Court. Donald Rumsfeld once said that an absence of evidence is not evidence of absence - perhaps there is more conservatism in Miers than is plainly evident.
Conservatives' support for the President's "up or down vote" theme and Democrats' willingness to support the President in his nomination of moderates almost guarantees a confirmation vote in the Senate. Supposing Miers is the moderate that far-right conservatives are worried she might be, it is not likely that her proceedings will "go nuclear." Let's just hope that nothing more portentous lies behind her limited experience and moderate façade.
Tim Hoffine is a sophomore in international studies and journalism. He can be reached for comment at hoffine.3@osu.edu.
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