When Harriet Miers, essentially an unknown in the legal world, was nominated for the US Supreme Court, this writer’s first reaction was that either President Bush has had the proverbial ace up his sleeve, or he is being extremely foolish.  It now looks as if the latter possibility was correct.  First it was the fact that she was unknown, and had no reputation as a judge or scholar to evaluate her by.  That might have been a plus, except that things began to appear, rather like the Clinton era bimbo eruptions.  Miers’ background began to look rather shady.  Her implication in the Texas lottery scandal and apparent involvement in President Bush’s military service in the National Guard, something that Democrats have been harping on for years, made her look like a poor pick.  Now, under questioning, she reveals herself as less than knowledgeable on constitutional law.  It is really time to worry about Mr. Bush’s ability to nominate the right person.   

We might note that Miers was nominated to fill the pending vacancy of Sandra Day O’Connor’s seat on the high court.  Because O’Connor is a woman, one might think that nominating a woman to replace her might be a good move politically.  Miers, however, was not a good choice as we are all finding out, and as Mr. Bush knew or should have known. 

A few years ago I wrote a piece supporting former California Supreme Court Justice Janice Rogers Brown in her nomination to the United States Circuit Court of Appeals for the District of Columbia.  If Mr. Bush felt constrained to nominate a woman, Brown was the logical choice to replace O’Connor.  Not only is she a well qualified woman, she is African-American, from a poor Southern background, and as such cannot be attacked as many other potential nominees would be on the basis of being sons or daughters of privilege who cannot have compassion for the ordinary working man or woman.  For all intents and purposes, she understands what ordinary people live through because she has been there, and knows it first hand.  As a single working mother she finished her undergraduate degree and put herself through law school.  Her husband had died tragically of cancer.  

What might be Judge Brown’s liability is that she is unafraid to call it like it is.  A few quotes lifted from the website of People for the American Way  illustrate the point: 

These are only a few of the many quotes from Judge Brown’s public renderings.  Another excellent source comparing her to leading Americans of the Revolutionary War era can be found here.  They show her to be traditional, conservative, small-government, and pro-private property rights.  She recognizes how the Constitution has been warped to mean something not intended in 1789; something detrimental to the well being of this nation and its people.  She supports the second amendment as well, which should bring in many endorsements from Middle America. 

Once described as a female Clarence Thomas, at least, she will not be as easy to accuse of sexual harassment.  Instead, people such as Ted Kennedy would have to resort to saying she is out of step with the mainstream of society today.  The problem is that she is and has always been part of the mainstream.  When someone says ordinary people can’t make it, she can proudly point to herself and say “Yes they can, and I’m the living proof.”  She is the embodiment of the American Dream.  She understands how government dependency is holding back America’s poor. 

One can only wonder what Mr. Bush was thinking when he passed her over.  It was a chance to gain massive brownie points with Conservative Americans.  It was a chance to put another African-American achiever on the map, and to put another deserving woman on the Supreme Court while holding fast to the Conservative values he pledged to uphold and support in his nominations.  Maybe he suffered some kind of brain freeze, or forgot to use mental floss the day he made the nomination. 

The Miers nomination failed because she had too much baggage, looked too much like a political payoff appointment, and certainly lacked the expertise.  Burt Neuborne, a NY University Law Professor, quoted in the L.A. Times, stated that one of her statements about voting rights would have been unacceptable from a first year law student.  If she can’t reach that standard, we wonder how she could pass the bar, let alone practice law. 

Now that Miers has withdrawn, Mr. Bush will get a chance to redeem himself.  Let’s pray that he gets it right the second time around. 

Steven Laib is a practicing attorney.

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