My mother used to say: “It’s not enough to be Hungarian. You still need a little talent, too.” To paraphrase her, its not enough to be conservative, you still need to have the brainpower to be a Supreme Court justice. And, if Harriet Miers is confirmed, she likely won’t be in the same league with her colleagues in terms of gray matter.
Fifty years ago, it was OK to name a Supreme Court justice who was a layman. Hugo Black was a senator from Alabama. William Douglas was head of the Securities and Exchange Commission. Earl Warren was governor of California. The court was still dealing with broad and basic issues such as school segregation, reapportionment, the broad outlines of defendant rights, the application of the 14th Amendment to the states and the right of privacy.
But today’s court is much more than a legislative body on which people whose heart is in the right place should be picked to serve. It is an assemblage of experts in constitutional law who dice, prune, shape and redefine previous doctrines and decisions to apply to the new matters at hand. A modern Supreme Court justice is not some legislator who decides to vote for the plaintiff or the defendant. He or she must be a scholar who can argue and articulate new variations on old doctrines and find four other justices who see things the same way.
Some question Miers’s conservative credentials. That is not my worry. I’m happy that she may not be a knee-jerk right-winger. My worry is that she is just not competent enough to serve on the court.
Talk-show host and former Supreme Court clerk Laura Ingraham (how low we all eventually fall in search of a living!) says it best. “How can you expect a general-practice lawyer like her to go head to head with a Stephen Breyer?” It is not that she would be out of the mainstream on the court. She would be out of her league.
Those who question whether President Bush has appointed someone who parallels his views on key issues are pursuing the wrong question. He knows his own lawyer. He must be deeply aware of her priorities and values. She is no stranger — as John Roberts was — to this president. We should not be second-guessing Bush’s decisions about her heart. But we can question his assessment of her head.
One of the dirty little secrets of Washington is how many genuinely unintelligent people there are in the government. I was with New Mexico Sen. Jeff Bingaman (R), one of the brighter people in town, in 1988 when I got advance word that presidential nominee George H.W. Bush was to name Sen. Dan Quayle (R-Ind.) as his choice for vice president. “What if they ask him a question?” Jeff asked.
But the truth is that you don’t need to be a bright light to handle chores in the Senate or the House. Votes are along party lines, and the member who thinks with genuine originality is both rare and unwelcome. But the Supreme Court is a rarified atmosphere, and a woman with Miers’s background — or lack of it — cannot hope to enter as a constitutional novice and remain influential or even relevant in the Court’s decisions. One can imagine the other Justices stooping to explain it all to her.
Miers’s chief advantage is that she can be confirmed because liberals like the conservative angst over her reliability. Bush should not buy himself a dogfight by choosing a highly controversial Bork-like nominee. But he should make sure that the standards of ability, experience and competence, so evident in his selection of Roberts, dominate his court appointments. And Miers isn’t it.
Morris is the author of Rewriting History, a rebuttal of Sen. Hillary Rodham Clinton’s (D-N.Y.) memoir, Living History.