A Good Judge of Judges?

WHEN PRESIDENT BUSH ANNOUNCED THE nomination of Harriet Miers, he said she was the "one person [who] stood out as exceptionally well-suited" for the Supreme Court. Bush cited her character and "distinguished legal career." What Bush didn't mention was Miers's assistance in helping him pick federal judges. He did that slightly more than 24 hours later in a press conference defending his suddenly embattled nominee. Miers, he said, was "a part of the process that selected John Roberts." And because of her work on the Roberts nomination, "she knows the kind of judge I'm looking for," meaning one who will interpret the law "strictly" and not "try to supplant the legislative process." He added that Miers "shares that philosophy."

This was Bush's answer to conservatives who wanted proof that Miers was a judicial conservative. Miers's advocates have followed the president's lead, emphasizing her role in helping the president choose not only Roberts but also other judges. During the daily briefing on October 17, White House press secretary Scott McClellan said Bush has "nominated more than 200 people to the bench. And Harriet Miers has been very involved in that process." Therefore, "she knows the type of person that the president is looking for." Left unstated was McClellan's--and Bush's--key point: that Miers herself is that type.

True, Miers has been "involved" in the president's judicial selection. Her involvement, however, extends to only a small fraction of the president's 200-plus choices. Still, her work in this process--over a span of 27 months--surely was sufficient for her to know, to use Bush's general terms, "the kind of judge I'm looking for." And it's hard to imagine, given her widely reported loyalty to Bush, that she would fail to "share" his views, to some degree, on judging. Still, there is much that is not known about her involvement in Bush's judge-picking. And it is almost certainly not going to be known. So her work as a judge-picker is not a useful indicator of what approach to judging she would take as an associate justice.

A lawyer from Dallas and a confidant of Bush's since the early 1990s, Miers came to work in the White House in January 2001. She served as staff secretary until July 2003, when she succeeded Josh Bolten as deputy chief of staff for policy. As part of her new position, she attended (as Bolten had) the White House Judicial Selection Committee meetings, which were convened weekly by White House Counsel Alberto Gonzales. When Gonzales became attorney general in February of this year, Bush named Miers to take his place.

The committee is a key part of the judge-picking process, which Gonzales instituted during the first weeks of the administration. Interviews with a half-dozen lawyers who have been a part of the process confirm that it remains today essentially what it was in 2001, and that the White House counsel--first Gonzales, then Miers--has been the one in charge. The process was designed to identify candidates for vacancies and vet their legal qualifications, judicial philosophy, and confirmability. The counsel's office has done much of the vetting, and the committee (including several associate counsels and a Justice Department lawyer, as well as Andrew Card, Karl Rove, and the deputy chief of staff for policy) functions as a court of sorts, deciding which candidates to interview and ultimately which to recommend to Bush.

Relying on this process, Bush has now appointed 172 judges to the district (trial) courts and 41 judges to the circuit courts, whose importance derives from the fact that very few cases rise above them to the Supreme Court. While Miers was deputy chief of staff for policy--and thus on the committee--Bush nominated 37 district and 19 circuit judges (according to the Justice Department). The work on at least 11 of those nominations (8 district, 3 circuit) had already been done by the time Miers became deputy chief of staff. During her time as White House Counsel, the president has made 12 district and just 1 circuit court selection (again, according to the Justice Department). Using different processes, Bush has chosen Roberts and now Miers for the Supreme Court.