Judging by experience, many question Miers’ qualifications for high court
WASHINGTON – Harriet Miers boasts an impressive resume: counsel to the president, lawyer for 35 years, managing partner of a large Dallas firm. Yet other recent Supreme Court nominees – and even candidates President Bush passed over – have set a high standard of experience that she fails to meet.The nominees and oft-mentioned possible picks have spent years litigating, arguing or resolving constitutional matters, either serving on the federal bench or occupying the top rungs of the Justice Department. Their understanding of the inner workings of the Supreme Court is more than a passing reference.In other words, the John Roberts standard – and the one set by Justices Ruth Bader Ginsburg and Stephen Breyer.”She doesn’t have anything like the qualifications of recent nominees,” Cass Sunstein, a liberal law professor at the University of Chicago and a Supreme Court expert, said of Miers. “They were exceptionally qualified, both by their judicial experience and experience before they were on the court. Those three were a whole different league of qualifications.”Miers, according to Sunstein, lacks the “conspicuous excellence” of Ginsburg, Breyer and the newest chief justice, Roberts. “She may be superb and her record isn’t inconsistent with being superb, but she doesn’t have demonstrated excellence compared to the records of the others,” he said.Presidents typically have preferred two pools of talent for their court choices. One is the federal bench and state courts that provide a telling record of a candidate’s professional judgment.”For 30 years, ever since John Paul Stevens, there has been an unbroken pattern of naming sitting appellate judges,” said Supreme Court historian David Garrow, who cited Roberts, Ginsburg, Breyer and Antonin Scalia. “No one could question their intellectual firepower.””Measured against the standard of the last 30 years, Miers seems clearly questionable,” Garrow said.The other staging ground for presidents is political, where nominees frequently deal with groundbreaking issues. Earl Warren was governor of California – and a former Republican vice presidential nominee – when President Eisenhower nominated him to the court. William H. Rehnquist was a hard-charging Justice Department lawyer when President Nixon called.Miers, a trial litigator for such clients as Walt Disney Co. and Microsoft during her years with a Texas law firm, is a product of a third category – straight from the law profession.”Unlike John Roberts, who has been involved in the active shaping of government, she’s been the quintessential staff person,” said A. E. Dick Howard of the University of Virginia, an expert on the high court. That experience “might make a wonderful staff person, but do they make a great Supreme Court justice?”Few in modern history have taken that direct path. Lewis Powell, a Virginia lawyer and president of the American Bar Association, stepped up to the high court, serving from 1972 to 1987.Bush, in nominating Miers, spoke glowingly of a candidate outside the realm of sitting judges. Martha W. Barnett, a partner at Holland & Knight law firm and former president of the American Bar Association, said having Miers, a practicing attorney, would be an asset on the court.”Harriet, at this point, fills a need on the court. … She brings a diversity of experience to the court,” said Barnett, a friend of the nominee.Even for justices who spent years on an appellate or district court, a seat on the Supreme Court is a daunting challenge. The work and issues add up to some 7,000 applications of cases to review per year, reams of briefs, bench memos and opinions and the high-stakes recognition that your decision is the final say.Justice William O. Douglas wrote in his memoirs that it “takes five years to go around the track once.”Dennis Hutchinson, a law professor at the University of Chicago who worked for Douglas, said the job is “a shock even to the most able person.”In the coming weeks, the American Bar Association’s 15-member standing committee will rate Miers based on integrity, professional competence and judicial temperament. Roberts was rated as “well qualified” as was Scalia, Breyer and Ginsburg. Justice Clarence Thomas was simply “qualified” based on his limited experience as a federal judge.On the day President George H.W. Bush nominated Thomas, the president called him the “best qualified,” a declaration that has been derided by Democrats and questioned by legal scholars. Fifteen years later, in an echo of his dad, President Bush described Miers as “the best person I could find.”The superlative has touched off a debate that history will decide.Vail, Colorado
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