Miers' mission: Prove she belongs

WASHINGTON — For the first time in more than 35 years, a Supreme Court nominee's competence is about to become a central issue.

Some Republican senators, a wide array of conservatives and a handful of legal scholars have set the stage by questioning whether Harriet Miers, President Bush's attorney and longtime confidante, has the legal background and skills to serve effectively as an associate justice.

"There are a lot more people — men, women and minorities — that are more qualified in my opinion by their experience than she is," Sen. Trent Lott, R-Miss., said during a television interview.

Another critic is Manuel Miranda, a conservative strategist and former aide to Senate Majority Leader Bill Frist, R-Tenn. "She is not one of the score of brilliant and tested ... potential nominees that the president might have nominated," Miranda said.

But in his weekly radio address yesterday, Bush defended Miers again and praised her as "a remarkable woman and an accomplished attorney" who would be "a good conservative judge" on the high court.

"Throughout her life, Ms. Miers has excelled at everything she has done," Bush said. "She's been a leader and a trailblazer for women lawyers, and her work has earned the respect of attorneys across the nation."

The last Supreme Court nominee for whom qualifications became a central issue was Judge G. Harrold Carswell, nominated in 1970 by President Nixon and rejected by the Senate.

Senate critics chided Carswell's lack of any scholarly articles or notable opinions. Sen. Roman Hruska of Nebraska famously defended the nominee by saying, "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they ... ?"

Witnesses also raised questions about the competence of Clarence Thomas when he was nominated, but the Judiciary Committee never addressed that issue.

In Miers' case, senators on the committee have signaled they will investigate her qualifications to replace Justice Sandra Day O'Connor.

Conservatives and liberals alike are expected to attack her suitability in three areas:

• Cronyism. Bush and Miers have been close since their days in Texas, when Bush took Miers on as legal counsel to his 1994 campaign for governor. After the election, he made her his personal attorney and later appointed her to head the Texas Lottery Commission. When he went to Washington, he brought Miers, first as deputy chief of staff for policy and later as White House counsel.

"She's in the pocket of the president who nominated her," said Mark Moller, a senior fellow in constitutional studies at the Cato Institute, a conservative Washington think tank. "She's already told people she thinks the president is the greatest man she's ever met. This is the biggest problem I have with her."

Such a close connection between a president and a nominee is rare but not unique. Warren Burger was a confidant of Nixon when he was nominated, and went on to head the court that forced Nixon to hand over the tapes that led to his downfall. President Lyndon Johnson nominated his longtime attorney and friend Abe Fortas.

• Lack of judicial experience. Miers has never been a judge. But many Supreme Court justices have arrived at the court with no judicial experience, including the late Chief Justice William Rehnquist, who was appointed to the court in 1972.

"Before 1952, more than 60 percent of all Supreme Court justices were not judges," said Lee Epstein, professor of law and political science at Washington University. "After 1952, the numbers sort of reversed."

• Lack of background in constitutional law. Miers, 60, has had a long and successful legal career: first woman to head the Dallas Bar Association, first woman to head the Texas state bar, first woman to become president of a major Texas law firm.

Critics say that's not enough.

"The fact that she's a successful lawyer doesn't mean she's going to do a good job as a Supreme Court justice," said Alan Morrison, a senior lecturer at Stanford Law School. "To use a baseball analogy, just because somebody is a good shortstop doesn't mean you put him in as a pitcher."

Cato's Moller had his own baseball analogy.

"Being a Supreme Court justice is like reaching the major leagues," he said. "To get to the major leagues and compete and do a good job, you have to put in a lot of preparation and practice before you get there. It's not clear that Harriet Miers has done that."

Epstein said that while concern about a nominee's qualifications may be justified, criticism of Miers' background could also be a smokescreen for opponents worried about her political philosophy. While questions might be raised about her legal background, it won't be the defining concern for senators.

"Qualifications are very important to becoming a Supreme Court judge, but politics have surrounded this process from Day 1 and it always will," she said. "For instance, becoming a justice in the 1800s meant being a good federalist. That was a fact of life."

Arguments that Miers shouldn't be appointed because she's never been a judge and spent most of her career as a corporate attorney are specious at best, Epstein said.

"On the basis of that, Lewis Powell would not have been a justice on the Supreme Court," she said. "He was a corporate lawyer for all of his life. He was the president of the American Bar Association, but otherwise, I can't imagine that he gave grave thought to the big constitutional issues of the day."

To Sen. Barbara Mikulski, D-Md., questions regarding Miers' legal qualifications smack of sexism.

"I'm shocked at the sexism and double standard coming out of the far right," Mikulski said last week. "All of a sudden, they're saying that a woman who was able to become head of the Texas Bar Association isn't qualified. They're saying a woman who was one of the first to head up a major law firm with over 400 lawyers doesn't have intellectual heft.

"I find it incredibly sexist, because one need only look at [Supreme Court] Justice [Clarence] Thomas in terms of intellectual heft."

Numerous critics testified before the Judiciary Committee about Thomas' thin legal background. The American Bar Association rated Thomas "qualified" (its other rankings are "well qualified" and "not qualified") and some newspapers editorialized against him on that basis. Still, members of the committee didn't question Thomas' credentials.

What people who raise questions about Miers' legal abilities are really most concerned about is the lack of evidence that reveals a sense of what would be her judicial temperament, Epstein said.

Moller agreed.

"At the end of the day, what's driving the unrest on the right is we don't know where she stands on the issues we care about," he said. "And that will drive the debate more than her credentials."

Material from The Washington Post is included in this report.