Bush nominates Harriet Miers to the Supreme Court.

Who?

Bush's choice to replace Sandra Day O'Connor is...Harriet Miers.

Huh?

The best thing I can say at this point is that at least he didn't nominate Priscilla Owen. And because of that I am happy to say that once again my prediction was wrong.

For a bio of Miers, go here.

Possible good aspects to this nomination

In Some thoughts about our soon-to-be Chief Justice, I said "Robert Bork is an asshole and John Roberts is not." That applies to Miers as well. From what I know of her, she is a good person.

Another possible good aspect to her nomination is that I do not see her as some wild-eyed ideologue. She is not Priscilla Owen, and that's a good thing.

Perhaps she will have the temperment and approach of Sandra Day O'Connor. If she does, that would be good. However, I have my doubts, as described below.

Problems with this nomination

• Lack of judicial and relevant legal experience
  

A major problem with this nomination is that Miers does not have any judicial experience, nor does she the kind of experience that Chief Justice Roberts had prior to taking the bench. This is something I do not like. The Supreme Court is an appellate court. The appellate process is distinct from the trial process, not only in procedure but in function and purpose, and the United States Supreme Court's role and purpose is completely unique. John Roberts was a clerk to then Justice Rehnquist and had years of experience as a lawyer appearing before the Supreme Court. Consequently he had vast experience working with issues of the sort that the Supreme Court addresses. He had personal knowledge of how the Court works. He had a first hand practical understanding of the Supreme Court's unique role.

On MSNBC this morning, I saw an interview with Timothy Mountz, the current president of the Dallas Bar Association. Regarding Miers's lack of judicial experience, he noted that 1) Miers served as a clerk to a U.S District Judge; 2) such clerks are very involved in researching the law and writing opinions; and 3) Miers therefore had experience relevant to a Supreme Court position. In this case two out of three ain't good. Listen folks, clerking for a District Judge is not comparable to writing Supreme Court opinions. This is due in large part to the differences between the role and function of the District Court (which is a trial court) and the Supreme Court (which is the ultimate appellate court). It would take way too long to explain the differences in detail, but I will offer a brief explanation. Trial courts are duty bound to follow the law. Decisions by District Courts have no precedential effect. The decisions which have precedential effect in our judicial system are the appellate decisions, and, as I said, the Supreme Court is the ultimate appellate court. Decisions by the Supreme Court have to be followed and applied by every federal court, and to the extent those decisions concern federal laws and the U.S. Constitution, every state court must also follow those decisions. Like it or not, courts do sometimes necessarily change and/or create law. However, that does not happen at the trial court level. It certainly does happen with the Supreme Court. Consequently, helping to write opinions at the trial court level does not really translate to having to write opinions as a Supreme Court Justice.

Before proceeding, I want to make it clear that I am in no way trying to criticize District Court clerks. That is an extremely difficult and vital job. Without the District Court clerks, the federal trial court system would likely grind to a halt. I am simply saying that being a District Court clerk does not necessarily prepare one for being a Supreme Court Justice. Being a clerk to a Supreme Court Justice would be better in that regard. Conversely, for the position of District Judge, a District Court clerk would have better experience than a Supreme Court clerk.

Miers has none of this experience. For years, Miers was a top-notch commercial litigator. As a general rule with rare exceptions, commercial litigation does not involve constitutional issues. Commercial litigators are not appellate lawyers. Miers spent her entire private legal career with one big firm in Dallas. Most big firms have appellate sections, meaning that once a case is on appeal, the appellate lawyers in the firm do most of the work.

Moreover, to my knowledge Miers has not written and published anything addressing legal philosophy or constitutional issues. Such publication would show at least some knowledge and understanding of these issues, which, by the way, are the issues the Supreme Court must address.

• Administrative experience is no substitute.
  

Miers has a very impressive resume, but much of what is impressive has no relevance to being a Supreme Court Justice. She was the president and co-managing partner of a successful big Dallas law firm. She was president of the Dallas Bar Association. She was president of the Texas State Bar. This shows that she has an impressive record as an administrator and manager. She has used this experience to great effect in the positions she has held in the Bush White House. However, Associate Justice of the Supreme Court is not an administrative position. It is a position that requires the utmost in legal analysis and philosophy. Have you ever had a class of any kind where the teacher says, "We will not address that subject in this class because that is too complex and difficult"? Well, folks, the Supreme Court--by design--deals with almost nothing but those complex and difficult subjects. Administrative skills really have little bearing on that responsibility.

• Recent experience is political, not legal.
  

Another thing that really concerns me about this nomination is the nature of Miers's experience over the last twelve years. Miers served as general counsel for the transition team of Governor-elect George W. Bush in 1994. From 1995-2000, she served as the chair of the Texas Lottery Commission. She was appointed to that position by Governor...George W. Bush. When Bush was elected President, Miers became White House Secretary for two years, then was promoted to Deputy Chief of Staff. Once Alberto Gonzales became Attorney General, Miers took over the job of White House Counsel, the chief legal adviser to Bush.

As stated by George his ownself on November 17, 2004, "Harriet Miers is a trusted adviser, on whom I have long relied for straightforward advice."

The previous paragraph shows that for the past twelve years Miers's role has been as political adviser to Bush. This is troubling for two reasons. First, the United States Supreme Court is no place for political advisers, regardless of political orientation. A political adviser is more likely to be a result-oriented judge, and as I have said before, a result-oriented judge is not good, especially on the U.S. Supreme Court. Second, Miers is a political adviser to George W. Bush, and given how I feel about Bush and his political agenda, I am most concerned by this fact.

A related concern is the fact that, as reported by the Washington Post, Miers, as White House Counsel, "has played a pivotal role in recommending federal appeals court candidates to Bush." That means she was influential in appointments such as Priscilla Owen. This is an indication to me that Miers will have a political agenda as a priority.

Keep in mind also that Miers's entire career after private law practice is thanks to Bush. She is exceedingly loyal to him and owes him big time. This is another indication that she will pursue Bush's political agenda from the bench.