The burden of proof may be heavy
on Oct 3, 2005 at 9:45 am
Two of the most undistinguished members of the modern Supreme Court — Justices Harold Burton and Sherman Minton — got on the Court almost entirely because they were cronies of President Harry Truman; there were few other qualities of note. When the Senate Judiciary Committee takes up the nomination of Harriet Miers to be an Associate Justice, she will have the burden of proving that she is qualified to join the Court and was not chosen on the basis of cronyism. That could pose a serious challenge.
One of the more interesting questions, at this early stage of the nomination process, is whether the American Bar Association will find Miers to be qualified for the Court. Although the ABA’s views are not highly regarded by the Bush Administration, a failure by the ABA to endorse her could be crucial, if the nomination gets into trouble on any other ground.
Miers suffers, perhaps greatly, by comparison to the President Bush’s other nominee, Chief Justice John G. Roberts, Jr., and few observers would expect her to perform at anywhere near to his level before the Judiciary Committee. Only senators wholly committed to Bush’s choice, perhaps solely because he made it, are likely to have an easy time with the nomination if her performance is visibly lacking.
There will be, of course, a major fight over access to legal papers she has written over the years in her public positions; the White House almost certainly will resist on grounds of attorney-client privilege. Roberts was able to make it through without disclosure of a good deal of his legal advice, but Miers may not be able to duplicate that feat.
Miers’ defenders have already begun moving to shore up her nomination, and one can expect in coming days that she will be ranked, by them, at the top of the American legal profession. That will be tested in time.
At a minimum, it does not seem likely that the fight over Miers’ nomination will be resolved until well into the winter.
Another unresolved question as of Monday morning is why President Bush felt a need to upstage the ceremony in which Chief Justice Roberts formally joined the Court. There was no apparent need for urgency, and the effect was to overwhelm Roberts’ investiture by the news of Miers’ nomination. It was not an exhibition of refined manners. And perhaps it served mainly to draw an even more vivid comparison between the two of them, to her disadvantage.
