Miers: What We Know, What We Don’t

Had Bush nominated Edith Jones, Janice Rogers-Brown, or Michael Luttig, we would know, with great specificity, what we were getting. In short, Jones would have resembled Scalia, Rogers-Brown Thomas, and Luttig Doug Ginsburg. With Miers, we don’t know, and I take it that was the point. Given the president’s roughed-up popularity, he made the judgment that any nominee about whom a knowledgeable observer could confidently predict his/her jurisprudential views, would not be confirmable. So, he made the further judgment that, in this case, it made sense to leverage his own private knowledge about his nominee. I’m not sure, as far as this goes, the president made a mistaken decision.

However, in public relations terms, this was an atrocious choice. On the one hand, it only reinforces what is a growing vibe in the press, which is that this White House is crony-central. Impressions are cumulative, and this adds to that particularly damaging one. When added to the Ambramoff scandal and the storm around Tom DeLay, this should help the Democrats in 2006 to argue that the Republicans are synonymous with an insider culture in which governing quality is not a high priority.

At the same time, this choice hurts the president on his other flank, which is relations with the conservative base. To say that this choice has not been received well by conservatives would be a dramatic under-statement. And in this case, it is NOT true to say that conservatives have no place to go. They do. Senators like Coburn and Brownback can—and in my judgment WILL—vote against Miers. This will be terrible for the president, and it may be that these two will be able to bring others along with them. When combined with the president’s “spend whatever it takes” response to Katrina, he is setting himself up for a bad few months—and maybe years—with his right flank, who heretofore have been unshakeable.

Finally, in terms of influencing the long-term trajectory of the court, this was a blunder. Miers is 60. Even if she is as conservative as conservatives might hope, this limits her tenure on the court considerably, given that Bush might have been able to get someone on ten to fifteen years younger. In addition, by picking someone who has played no significant role in developing conservative jurisprudence, Bush lost an opportunity to influence the general climate of legal culture, or of exercising leadership on the court.

That said, what if anything do we know for certain about Miers? Here’s my best guess:

a) She’s a social conservative. Marvin Olasky has done some digging as to Miers’ church-going activities, and has found that she attends a “conservative, evangelical church.” My guess, based on this fact alone, is that her views are not that different from the president’s, where social issues are concerned.

b) She’s highly sympathetic to business, given her work on “tort reform.” This cuts two ways, however—the more sympathetic to business, the less likely she is to take the libertarian line on cases like Kelo.

c) She is deeply devoted to the president personally, which I would guess translates into a strong pro-national security line on war on terror issues.

What don’t we know? All of the above are policy preferences, not jurisprudential views. And the difference is not irrelevant. Many of the important questions before the SC over the next ten years are not, basically, about what a justice would do if a case was before the court for the first time (when most conservative-leaning justices would not take the liberal line). The question is about how one should treat a precedent that one views as wrongly decided in the first place. Luttig, Rogers-Brown and Jones have all thought about these questions long enough, and left enough hints, for us to know that they would not be terribly deferential to precedent. And what is more, the fact that they have thought seriously about the question suggests that, when actually put in a position to overturn precedent, they would do it. My sense is that Miers’ experiences did not giver her the time or the opportunity to think through her jurisprudential views in any detail. My guess is this would incline her to deference, but in any case it she would spend her first few years on the court trying to figure out which of the three clear conservatives (Roberts, Scalia or Thomas) to follow.

Author: Steven M. Teles

Steven Teles is a Visiting Fellow at the Yale Center for the Study of American Politics. He is the author of Whose Welfare? AFDC and Elite Politics (University Press of Kansas), and co-editor of Ethnicity, Social Mobility and Public Policy (Cambridge). He is currently completing a book on the evolution of the conservative legal movement, co-editing a book on conservatism and American Political Development, and beginning a project on integrating political analysis into policy analysis. He has also written journal articles and book chapters on international free market think tanks, normative issues in policy analysis, pensions and affirmative action policy in Britain, US-China policy and federalism. He has taught at Brandeis, Boston University, Holy Cross, and Hamilton colleges, and been a research fellow at Harvard, Princeton and the University of London.