Richard Jensen: On Bush's Bad Choice of Harriet Miers

Roundup: Historians' Take

[Mr. Jensen is emeritus professor of history at the University of Illinois, Chicago and the founder and editor of the conservative list, cnet.]

Most of the bloggers left and right seem to be looking at Miers as merely one of 9 voters—will she vote for or against my position? The Supreme Court is much more complex than that. We can ask about the depth and content of her decisions; will she be a Brennan pushing the law to the left or a Rehnquist pushing to the right? Will she be a cipher. I think it’s most likely she will become a tool of one of the other 8 justices who will control her thinking and her votes.

Let’s explore the danger of having a weak personality with little knowledge of constitutional law and very little self-confidence about any area of the law. The Court is a small group that interacts over the course of years and decades. The recent biography of Justice Blackmun was an eye-opener in this regards. Let us suppose Justice Miers discovers she’s over her head and starts floundering. A justice notices and takes action. The mentor will show the newbie the ropes, keep her from making stupid mistakes, help her find very talented clerks, help her think out her position on the issues. So who will this mentor be—maybe Roberts, or Breyer or Ginzburg or…who knows? That is the sort of risk the nation is taking.

Will the Senate reject her? After Miers flounders for a few days on TV unable to expound on the basic cases, unable to answer the simplest questions about constitutional law, the Democrats will have a twofer. On the one hand they will hammer Bush with the double charge of hiring incompetent cronies. That is unfortunately true and it will sting…and it will help the Democrats hold together and not fly apart over issues such as Iraq.

Secondly the liberals will know that Miers will be a cipher on the court. She has no ideas, and is utterly incapable of moving her colleagues in any direction whatever using her intellectual firepower. The liberals will recognize there is a significant possibility that Miers will drift left (like Souter and Blackmun), or be taken under wing by a mentor and guided to the left (like Scalia guided Thomas.) The liberals know that if Miers is rejected by the Senate her replacement will be probably be some brilliant right winger who does pose a major serious threat to them for the next 25 years. Hence they vote for Miers and enjoy 10 or so years of a nonentity.

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Richard J Jensen - 10/6/2005

Business cases are the bread and butter of the lower federal courts, but rarely get to the Supreme Court. Will she vote the opposite of O'Connor? Miers does not know how O'Connor voted, and has never indicated a Supreme Court decision she disagreed with. No doubt she will hire a clerk who will tell her how to vote and will write her opinions.

Lawrence Brooks Hughes - 10/6/2005

You assume she has no mind, no convictions about anything, and I think this is unlikely. At the least she will bring real business world experience into the back room, open the eyes of her colleagues to the effects of their decisions in the real world, and alert them to the fearsome costs of overregulation. She will speak there of real clients who had real problems with the government... She will also probably vote exactly the opposite way from Mrs. O'Connor on every social issue, and further, will doubtless fit the president's obvious first criterion, and not be a Judas like Souter.