New York Times
October 8, 2005
The contrarian in me has been trying to find a reason to defend Harriet Miers against her critics, but it's too much of a stretch. We need a new nominee - or at least a more entertaining way to choose a nominee.
I searched for a good rationale Thursday night at the Woodstock of conservatism, the dinner in Washington celebrating the 50th anniversary of the National Review. But I ended up feeling like Diogenes as Republicans kept shaking their heads and shrugging helplessly.
A few friends and colleagues testified to what a nice person she is and how hard she works. But I heard more stories about her being indecisive as well as a micromanager at the White House, fussing about the punctuation and the proper margins on memos.
There were two plausible arguments on her behalf. One was that there were no alternatives to her, since the other candidates would have infuriated either the left or the right. John Roberts managed to become an expert in constitutional law without leaving a paper trail, but he'd had rare foresight. The other candidates had made the fatal mistake of discussing important issues.
The second argument was that Miers's lack of experience wasn't even a drawback. Being a Supreme Court justice wasn't all that hard - look at all the nonjudges from second-tier schools who'd done the job. In fact, her background was a plus, because she'd spent most of her life beyond the Beltway and outside what President Bush called the "judicial monastery."
Instead of writing laws or issuing decrees from the bench, she spent most of her life working for businesses that were coping with the rules. Her judgment would be tempered by "real-world experience."
This was an appealing argument, and it made me want to side with Miers against the elitists making fun of her background. I tried making this case for Miers with a Boston University law professor, Randy Barnett. But, like a typical nitpicking legal scholar, he had to complicate the issue.
"If real-world experience is the best qualification for the Supreme Court, then presidents can appoint anyone they want," he said. "Why do you even need to be a lawyer? There are millions of people outside the Beltway with real-world experience."
Fair point. Who is to say those millions' worldly experience is any less real than Miers's? They also meet the crucial qualification for today's nominee: no expressed opinions. Like Miers, they eschewed the bench, following the modern equivalent of the advice from Sir Joseph, the First Lord of the Admiralty in "H.M.S. Pinafore": "Stick close to your desks and never go to sea, and you all may be Rulers of the Queen's Navee!"
To choose a nominee, we should do more than rely on the president's word or on a confirmation hearing in which Miers will be determined to say nothing of interest. We need the best process available today to determine the nominee's real-world credentials.
That, of course, would be a reality TV show. Pit Miers against other would-be justices in "Road Rulings," which would test their real-worldliness as they traveled the hinterland in an RV. They'd cope with the arcana of daily life. Do they know what a gallon of milk costs? Can they pump their own gas?
They'd emerge in small towns and large malls to test their legal skills. Can they help someone beat a speeding ticket? Can they arbitrate a divorce settlement? How will they apply the Supreme Court's definition of obscenity when they hear a case by a church group demanding that a newsstand stop selling Hustler and Barely Legal? Can they explain to a family why it would be a "public use" for the government to take its home to make room for Costco?
If this competition seems too time-consuming - I realize we have a vacancy to fill - then we could instead quickly replace Miers with a nominee who already has the perfect credentials, starting with her sex. She's an experienced judge yet hasn't ruffled feathers with rulings on constitutional law, and no one can accuse her of living in a judicial monastery.
Just this week she has dispensed justice to a tenant accused of making $3,000 in 900-number calls, a woman battling with her nanny over a loan for back surgery, and a 9-year-old girl accused of popping wheelies and wrecking a motorized minibike at a birthday party. If real-world experience is what the Supreme Court requires, all rise for Justice Judy.