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Location: Chicago, IL

I am a consultant from chicago where I live with my wife, our dog, and two cats

Tuesday, October 04, 2005

Harriet Miers - an analysis of the nomination

I think everyone needs to accept the facts of Harriet Miers’ nomination. While she wasn’t the Plan A that everyone wanted, Plan A was no longer possible. Plan A was for Roberts to be confirmed and THEN for Rehnquist to retire. Unfortunately, Rehnquist didn't live long enough for Bush’s original plan to be implemented. So this is plan B, and given the circumstances it isn't that bad.

While a Senate battle may be the red meat that true believers on both sides of the aisle wanted, Bush has an aggressive agenda that he wants to pass - an agenda that will set further strong dividing lines between the Democrats and Republicans for the 2006 election. In those circumstances, Bush didn’t want to get involved in an extended Senate battle. Instead, he seems to have worked a deal with Ried, and then slipped in Miers as a stealth candidate.

There is a valid argument that a full-out Senate battle is what was needed at this time. I disagree for the following reasons: First, I believe that Iraq is going to turn the corner. Elections are forthcoming for their constitution and for their government after that (assuming the constitution passes as I expect it will). Bush needs this news to be front and center, so that when troops start to come home he can hammer the opposition for their full-fledged wobbling over the past year. Second, his domestic agenda has items that are important to households and ordinary families. The more he can get of that into legislation, the better the Republicans chances in 2006. Third and finally, there are at least 2 important abortion cases coming up this year in the Supreme Court. These decisions will have an impact on the 2006 congressional and senatorial races. Having Miers in place for them instead of O’Connor is important to Republican chances. A more intellectual “pure” nomination may not be in place in time for those decisions, and Bush would have had to depend on O’Connor – a situation where I think Bush would lose.

The next question is: What exactly are we getting in Harriet Miers? A simple country lawyer with no views on the Supreme Court or the Constitution? A woman whose loyalty to the President is her sole credential?

I suggest that the final analysis of this pick will prove to be far more complex than anyone seems to think right now. First of all, this IS a diversity pick, but in more ways than people think. Yes, she is a woman and that seems to have been an important factor in the pick. However, she is also a lawyer from private practice who didn’t spend her entire life writing appellate briefs or sucking up to become a judge. Instead, she was on the front lines of real law practice. Working with corporations and individuals to navigate the complex laws of our country and the even more complex laws as interpreted by the courts. As someone who’s actually had to live with the results of court interpretations, I suggest that she will provide a welcome addition of pragmatism and common sense to the court. In general, our country has been plagued by judges who have nothing better to do than discuss the “penumbra” cases in an esoteric manner without realizing the consequences of their decisions. If she is on the court, Miers will be there to remind them.

Something others seem to forget is that she led the team that picked John Roberts to the court. I think it is unlikely that Roberts made it through the process without strong support from her, and it is probable that he was her primary choice in the end. Roberts won’t be able to develop “his court” without building a coalition of likeminded justices on important issues, and Miers will be the first and probably most loyal member of that coalition on most issues.

Miers also brings a management and administrative acumen to the bench. She was the co-managing partner at a huge firm of more than 400 lawyers, and has more management experience than any of the current justices. One of the often under-recognized factors of being a justice is that the workload demands effective delegation of the workload to a team of clerks – who have been accused of crafting decisions of their own that don’t necessarily reflect the decisions of the justices. In this case, we have a lawyer who has a keen understanding of delegating workload and someone who will have the ability to reign in errant clerks.

Finally, justices don’t operate and exist in a vacuum. They influence each other and bond together depending on the strength of their arguments. Miers is someone who has worked across ideological boundaries in her law firm, as president of the Texas bar, and on the Dallas city council, not to mention working in the White House and successfully managing the competing influences that are in any Presidency. To me this indicates that she will be a person able to work with the other justices, to help influence them and potentially build coalitions for Roberts, or in cases where the still disagree, keep the lines of communication open for future coalitions and agreement.

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