Is Miers one in a million? A reply to Charles Krauthammer

WaPo columnist Charles Krauthammer, normally remarkably thoughtful and open-minded but always eloquent, disappoints me in his column today on the Miers nomination by asking this very good question without bothering to pause to consider its answer:

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president?

Well, sir, I have your answer right here, 'cause not a single other one of those 1,084,504 lawyers can say they've been —

• counsel to the President and to the governor of one of the most populous states, along with having competently executed several other high-level White House staff positions;

• president of both the state bar association in the Nation's second largest state and of one of its most respected and active local bar associations, as well as having led valiant efforts to return a dysfunctional American Bar Association back to its roots of apolitical service to the profession and public;

• long-time managing partner of an extremely well regarded large Dallas-based law firm, which then became a successful 400+ lawyer statewide powerhouse after she oversaw a successful cross-state merger with a Houston-based firm of comparable size and reputation;

• an accomplished courtroom lawyer, praised with words like "very good, cool, deliberate, poised, effective" by the judges before whom she's appeared, with experience at both the trial and appellate level in both state and federal courts, capable of personally attracting repeat engagements from sophisticated clients like Microsoft and Disney, and regularly listed among the top 50 or 100 American lawyers in listings complied by national legal periodicals;

• a law clerk for two years for a respected federal district judge, providing further insights into federal trial practice of a sort that no current member of the Court can claim;

• a published member of, and then an articles editor for, the top law journal at her law school, noted for its comprehensive coverage of Texas law; and

• a "very thoughtful, very good student" who made "top marks" and could be counted on to give "solid, intelligent answer[s]" to "critical question[s]," according to a professor of hers, nationally recognized as an expert in business law, who 35 years after teaching her pronounced himself filled with "great satisfaction" to see her nominated to the Court.

Dr. Krauthammer's question also seems to assume that "her connection with the president" is a negative factor. Instead, it reflects the fact that based on years of close dealings with her, the President says he's more sure, based on personal knowledge of her, that she won't turn into "another Souter" than he could be with respect to anyone else he might have nominated — thus allowing him to keep his campaign promises about judicial nominees. He made those as his personal promises to the voters; why, now, is he being faulted and accused of "cronyism" for trying to fulfill those promises on the basis of his personal knowledge of and confidence in this nominee?

Dr. Krauthammer's column engages in the revised version of the "we're not being elitist, but ..." argument that has begun circulating lately. And to be clear, I'm not suggesting that he ever sniffed at Ms. Miers' SMU law degree or Texas legal practice; but others certainly have, and many false impressions still linger. Nevertheless, the revised version of that argument, if not as obviously elitist, still shows either (a) a lack of imagination or (b) a lack of appreciation of what judges and lawyers actually do, or (c) both.

Dr. Krauthammer insists, for example, that "constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship." And then he simply presumes — conclusively and irrebutably, it would seem — that Ms. Miers has no more capacity for "intellect steeped in scholarship" than any of the other 1,084,503 lawyers in the United States.

That's rather at odds with her actual record, which reflects considerable intellectual tools. But it's also far too narrow a focus, in several respects. In the first place, only a portion of the Court's work is, strictly speaking, "constitutional jurisprudence." The Court also deals with many other types of issues — indeed, a whole panoply of issues as diverse as, well, the kinds of cases that a top-flight courtroom lawyer at a first-class law firm has dealt with. There's a reason, Dr. Krauthammer, that most lawyers only take one, or at most two or three, courses in constitutional law: there's a lot more law out there, and it's important to the Nation too.

Dr. Krauthammer and similar critics of the Miers nomination also seem to believe — I can't imagine why, because it's counter-factual and counter-intuitive — that you have to keep writing law review articles month after month and year after year in order to have a powerful intellect. They seem to think that unless you do that, or you have the very, very rare sort of private practice that John Roberts had, doing nothing but appellate litigation in what's functionally indistinguishable from a never-ending law school moot court, you're simply incapable of grasping constitutional law as well as, umm, Charles Krauthammer can, I guess, as a physician-turned-pundit. Dr. K, it's unlike you to impute a negative stereotype to such a huge class of people: being a practicing lawyer doesn't mean one's retarded, and in fact there's a positive correlation between intellect and success as a practicing lawyer.

Moreover, while constitutional law is certainly important and raw intellectual ability is important as well, there has been no shortage of very smart constitutional scholars on the Court. Indeed, that's exactly how — and why — nine of them have been able to produce ten different opinions on a single day to try to explain why displaying the Ten Commandments is constitutional in Texas but unconstitutional in Kentucky.

A reasonable observer — a reasonable President, and reasonable senators — might conclude that some important sorts of diversity other than race, sex, and religion might be missing from the Court. Someone who hasn't clerked on the Supreme Court, but instead down in the trenches in a federal district court, and then practiced law there for many more years, might be useful among the Justices. Someone like that might have figured out and persuaded her colleagues on the Court, for instance, that it was a poor idea to turn state and federal sentencing procedures entirely topsy-turvy all at once and without warning, and then to shrug and say, "Oh well, we'll see about cleaning up our mess next Term."

Yes, I am hesitant to repeat an argument that Harry Reid has made publicly. But even a stopped clock is right twice a day, and Sen. Reid is correct in observing that the Court badly needs someone with the perspective of a practicing lawyer with trial-court experience.

This is not an argument in favor of mediocrity. This is an argument in favor of adding some different kinds of smarts to the Court. Until fairly recently, it was the rule rather than the exception to draw some new Justices from the ranks of practicing lawyers who've been successful and who've demonstrated character, devotion to profession and community, and sound judgment as measured in a wide variety of contexts. I respectfully submit that if you think your menu has only three choices — circuit judges in column A, law professors in column B, and law professors turned circuit judges in column C — then you are indeed being either elitist, unimaginative, or both.

In Dr. Krauthammer's case, I'm relatively sure the problem is simply a failure of imagination. And I'm hoping that he and quite a few others who are prejudging Harriet Miers' nomination will try to open their minds to the benefits that Dubya already perceives from it. In fact, there are quite a few more than "one in a million lawyers" who would constitute wise choices to fill Justice O'Connor's slot on the Court. But blinding oneself to this one in a million's particular set of credentials, or arbitrarily excluding her from consideration because she's neither a circuit judge nor a law professor, is both unwise and unfair.