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Sunday Weekly Review: Harriet Who?

October 9, 2005

Harriet Who?
Has there ever been a less experienced person nominated for the U.S. Supreme Court?
No judicial experience. One term on the Dallas City Council. A staunch Bush loyalist that he recently appointed as his counsel…
Harriet Miers once said Bush was the most brilliant man she knows.
She really needs to get out more.
Certainly, I will want to learn more. But from what I know about her thus far, it looks like an awful choice. Anyone ready for filibuster? (Abe Fortas, the last “Presidential loyalist” nominated for the Supreme Court, was defeated by a Republican filibuster to the Senate’s Democratic Majority in 1968. For more, see below.)

Divided Loyalties
by Akiba Covitz
Only at TNR Online
Post date: 10.03.05
Tom Clark, the last Texan to sit on the Supreme Court of the United States, once said that “the appearance of justice,” especially in the case of the high Court, “is more important than justice itself.” Today’s Supreme Court nomination of Harriet Miers, President Bush’s longtime lawyer, does not have the appearance of justice. Justice, we hope, is blind. But for many years, Miers has seen justice mainly through the lens of a man upon whom she may soon have to pass judgment.
If confirmed, Miers will have to recuse herself from potentially dozens of cases concerning this administration; but that will not be her biggest problem on the Court. Rather, her most significant challenge will be her ability to do a professional u-turn. Can she take the one quality that means the most to the president who just nominated her–loyalty–and leave it completely behind as her work address moves several blocks east?
To weigh her chances of success, consider the lesson of Abe Fortas, the last justice to be elevated to the Court after enjoying such a close relationship with a sitting president. Fortas had been Lyndon Johnson’s personal lawyer for years prior to Johnson becoming president. In 1948, when Johnson found himself in court over a closely contested Texas Senate race, he turned to Fortas, and Fortas delivered. Seventeen years later, LBJ put Fortas on the Supreme Court.
The problem was that Fortas could never leave his sense of loyalty to the president behind. On many cases where he had served a role advising Johnson in the matter before the Court, Fortas neglected to recuse himself. Worse than that, he continued to play an advisory role to LBJ even after ascending to the high Court. Johnson’s key advisors, including Bill Moyers, Jack Valenti, and Joe Califano, continued to count on Fortas, sending directly to his Supreme Court chambers drafts of legislation and even State of the Union addresses for Fortas to sign off on. All this eventually caught up to Fortas. When LBJ nominated Fortas to be chief justice in 1968, his inappropriately close relationship to the president came under congressional and public scrutiny, and he later resigned in disgrace.
On the surface, the parallels between Fortas and Miers are numerous. Like Fortas, Miers hitched her wagon to the president long before he occupied the White House. And like him, she has no prior experience as a judge. Moreover, both Johnson and Bush have been known to place a high premium on personal loyalty.
And yet there is one element in Miers’s background that suggests she could escape the Fortas trap: Her past as a breaker of nearly every glass ceiling in the city of Dallas and the state of Texas suggests that she has a stubborn independent streak. In the macho world of Texas law, Miers rose to the top in a way that no woman had before. She may value loyalty, but she also appears to be someone who charts her own path.
If she is confirmed, the future of the Court will depend on her ability to put this independent streak on display. Recent studies have shown that confidence in the courts is low. In the years since Bush v. Gore in particular, Americans have found it increasingly hard to believe that their courts are independent of the rest of the political system. For a justice on the Supreme Court to be seen as a lackey of the president would erode that confidence even further. To keep that from happening, Miers will have to rise above her personal loyalty to her current boss and old friend. The appearance of justice demands nothing less.
Akiba Covitz served as archivist for the Abe Fortas papers at Yale University. He now teaches political science at the University of Richmond.

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  • Mmmmmmm WarrenBurger with cheese October 13, 2005 10:47 pm

    Holycrap–that answer was anything but smooth–the only thing left to wonder about is Miers’ intelligence in delivering such an awkward response

  • HolyCrap October 13, 2005 6:35 pm

    I’m not sure that Ms. Mier is as ignorant about who her favorite justice is… I think she was playing the either-Warren game. That way the average listener would plug-in the Warren they most like. That way her answer smooths over for more listeners.
    Just a thought.

  • Get the traitors of traitorgate October 10, 2005 1:47 pm

    Miers should not be confirmed–just to make sure traitorgate is unhindered

  • Gregg October 9, 2005 5:50 pm

    As I mentioned on your show, the Miers nomination appears to be a “Get Out Of Jail Free” card to me. I also mentioned some problems with Miers’ firm and investor fraud. Here is a link:

  • Losing my appetite October 9, 2005 2:29 pm

    The more I evaluate the basic skills of the graduates coming out of the public school system, the more I’m convinced of evolution myself.
    Robt – What are you saying? That the Hungary Prime Minister was hungry?