Today President Bush nominated Harriet E. Miers, the White House counsel, to replace retiring U. S. Supreme Court Associate Justice Sandra Day O'Connor.
Miers, 60, has never served as a judge on any level and lacks a record of opinions that might reveal how she would serve on the U. S. Supreme Court. About the only thing known about her is that she is a hard worker and a Bush confidante.
Before her nomination was announced this morning, liberals had been warning that the nomination of a conservative in the mold of Justice Scalia or Justice Thomas would bring about strong opposition in the Senate, provoking a very contentious committee and floor fight and possibly a filibuster.
Conservative groups, on the other hand, have worried about the opposite. They point out that they were responsible for the election of President Bush and that there support was based, in large part, on the belief that he would nominate conservative justices who would likely vote to overrule Roe v. Wade, the decision that kept abortion legal in all states.
To the nomination of a lawyer with no judicial experience, reaction is mixed.
Both Sen. Orrin Hatch, R-Utah, and Senate Democratic Leader Harry Reid of Nevada find advantages in the fact that Miers has not been a judge.
According to Hatch, “Harriett Miers will bring diversity and depth to the Court,” “She has broad professional experience that will provide a fresh perspective from outside the insular walls of the judiciary.”
Reid seemed to agree: "The Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the court."
Added Sen. Chuck Schumer, D-N.Y.: "[W]hen I choose judges In New York, I look for practical experience. And so the fact that she hasn't been a judge before, to me is actually a positive, not a negative."
However, the downside of the lack of judicial experience is the lack of a record on which to judge her judicial temperament and ideology.
"We know even less about Harriet Miers than we did about John Roberts and because this is the critical swing seat on the Court, Americans will need to know a lot more about Miers' judicial philosophy and legal background before any vote for confirmation." - Sen. Chuck Schumer, D-N.Y.
Many Supreme Court justices had no prior experience: According to the White House, 10 of the 34 Justices appointed since 1933 came from within the president's administration, not from the judicial branch.
Among the other justices for whom the high court bench was their first judgeship were: Lewis Powell, Arthur Goldberg, Earl Warren, Tom Clark, Hugo Black, William Douglas, Felix Frankfurter and Louis Brandeis.
Conservative reaction is mixed:
Some conservatives are worried that Ms. Miers has not shown that she will support their views when on the bench.
Concerned Women for America released a statement saying it was taking a "wait and see" approach.
"We give Harriet Miers the benefit of the doubt because thus far, President Bush has selected nominees to the federal courts who are committed to the written Constitution," said Jan LaRue of CWA. "Whether we can support her will depend on what we learn from her record and the hearing process."
Family Research Council. President Tony Perkins: "President Bush has long made it clear that his choices for the U.S. Supreme Court would be in the mold of current justices Antonin Scalia and Clarence Thomas. We have no reason to believe he has abandoned that standard. However, our lack of knowledge about Harriet Miers and the absence of a record on the bench give us insufficient information from which to assess whether or not she is indeed in that mold.
Public Advocate president, Eugene Delgaudio was clear in his opposition: "The president's nomination of Miers is a betrayal of the conservative, pro-family voters whose support put Bush in the White House in both the 2000 and 2004 elections and who were promised Supreme Court appointments in the mold of Thomas and Scalia. Instead we were given 'stealth nominees,' who have never ruled on controversial issues, more in the mold of the disastrous choice of David Souter by this president's father.
"When there are so many proven judges in the mix, it is unacceptable this president has appointed a political crony with no conservative credentials. This attempt at 'Bush Packing' the Supreme Court must not be allowed to pass the Senate, and we will forcefully oppose this nomination."
Operation Rescue also opposes Miers. "We must reject the nomination of Harriet Miers to the Supreme Court of the United States," said the group’s president, Troy Newman.
"President Bush promised that he would appoint strong constitutional constructionist to the Supreme Court in the mold of Thomas and Scalia, but Miers is no Thomas or Scalia. We must be given a nominee that will restore the protections of personhood to the pre-born. If your head was about to be crushed, would you want to trust you life to someone who will not state their position on your murder?"
Other conservative groups favor Miers.
Fr. Frank Pavone, national director of Priests for Life and president of the National Pro-life Religious Council, thanked President Bush this morning for nominating a replacement for Justice Sandra Day O'Connor in a timely manner, and called upon the Senate to do its work in an expeditious way as well.
"Our prayers are with Harriet Miers this morning as she begins this important process. We trust the President's judgment and his determination to fulfill his promises about the kind of Justices he wants to see on the Court.
"It is the judgment of certain liberal Senators, however, that gives us more concern. The demand that some make for preserving the current ideological balance on the Court, or for more "mainstream" nominees, is ridiculous. Do we have a more "mainstream" Constitution in some generations but not in others? Or do they think it is up to the Justices to re-write the Constitution? In short, there is no Constitutional requirement that Justice O'Connor's replacement should be a clone of Justice O'Connor.
"The place for arguments about ideology and mainstream positions is in political races. For the purposes of confirming nominees to the Court, the focus should be on qualifications to be a Justice, not on personal views on controversial issues." (We don’t know how Fr. Pavone would feel about nominees whose personal views supported the right to abortion.)
According to Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative law group:
"Once again, President Bush showed exceptional judgment in naming Harriet Miers to the Supreme Court to replace Justice O'Connor," said Sekulow in a statement. "At a time when the high court is facing some of the most critical issues of the day – including a number of cases dealing directly with abortion and life issues – the person who replaces Justice O'Connor is critical.
"Harriet Miers is an excellent choice with an extraordinary record of service in the legal community and is certain to approach her work on the high court with a firm commitment to follow the Constitution and the rule of law. I have been privileged to work with her in her capacity as White House counsel. She is bright, thoughtful, and a consummate professional, and I enthusiastically endorse her nomination."
Sekulow said his organization is ready to mount a campaign in support of Miers, similar to their support of John Roberts during his confirmation process as Chief Justice.
"We know the intentions of the liberal left – to do anything possible to derail this nominee," said Sekulow. "We are prepared to meet those challenges head on and ensure that this battle ends with the confirmation of Harriet Miers as an associate justice of the Supreme Court."
Sekulow may claim to know the intentions of liberals. However, their reaction is also mixed.
"I see no negatives at this stage in Harriet Miers. ... What her values are and where she will stand on this court remains to be seen." _ Sen. Dianne Feinstein, D-Calif.,
"America can't afford a replay of the unrevealing confirmation process that preceded Chief Justice Roberts' confirmation. ... Without a meaningful exchange during the confirmation hearings, there is no way to know how Ms. Miers views the Constitution, whether she's a strict constructionist in the mold of Justices Scalia and Thomas, or whether she will protect fundamental rights." _ Sen. John Kerry, D-Mass.
"With no past judicial experience for the senators to consider, the burden will be on Miers to be forthright with the Senate and the American people. She must outline her judicial philosophy and provide direct answers to questions about how and whether she will uphold fundamental rights, liberties and legal protections on which Americans rely. ... There must be no rush to judgment." _ Ralph G. Neas, president of People for the American Way.
At this point we know very little about Miers. Her nomination and confirmation debate will probably be more important than those for John Roberts, who replaced Chief Justice William Rehquinst. Rehquinst was clearly one of the most conservative members of the court; it is unlikely that his replacement by Roberts could move the court any more to the right. However, Miers is replacing the more moderate, and often swing vote, of Sandra Day O’Conner. If Miers turns out to be a Scalia-Thomas type conservative, her confirmation would swing the court to the right.