Harriet Miers: The Mediocre Thing

Harriet E. Miers' nomination to be an associate justice of the U.S. Supreme Court seems to be ... well, sinking, I think that's an accurate term for the process. She's certainly not rising, or flying, or fast-tracking through the Senate the way John Roberts' path to Chief Justice sped along.

Her homework assignment for the Senate Judiciary Committee before hearings begin November 7, a questionaire about her legal career and experience, was just sent back to her with an incomplete. The teachers, both the Republican chairman Arlen Specter and the ranking Democrat, Patrick Leahy, have written a joint letter telling her they want more facts and accuracy, less fuzziness.

She seems to have risen to President Bush's inner circle because of an odd virtue. The President likes to jog, and Miers was one of the few White House staffers who could keep up with him for more than a mile. I frankly admire that virtue. I just don't know if it merits a seat on the U.S. Supreme Court for the next 20 or 30 years. It reduces access to the ears and hearts of the Mighty of the World to a matter of the best Adidas or Nikes. I'm frankly not comfortable learning that my fate as an American citizen rests with someone ultimately because she can run a mile or two or three.

As a lawyer -- occasionally she forgot to mail in her dues to the D.C. Bar Association and the Texas Bar Association, and was briefly suspended -- she seems to be the kind of lawyer you'd trust to handle the sale of a small office building, and after it was all over, you'd want to send her a thank-you bottle of expensive Scotch. (She'd say thanks, but might not drink it or keep it. She seems to be churchy straight arrow.) She seems competent to handle those kinds of things.

In her public service career, she was appointed to run the Texas Lottery. Not very long ago, lotteries were the province of organized crime, but states wanted a cut of the profits and established their own lotteries. So the high water mark of her public service career is supervising legalized gambling games run by state government. That's nice. She got sued a few times over contracts with private companies who did work for the state lottery.

Somehow the best I can see of her legal career -- I just don't hear a choir of angels singing praises about her profound knowledge of and experience with Constitutional matters. Praise from prestigious law professors and law school deans seems also somewhat lacking.

Of course from time to time, controversies over the sale of small office buildings reach the Supreme Court. She'd come in handy then. She could explain practical title search and transfer matters to those head-in-the-cloud justices who've specialized in Constitutional things, like the Bill of Rights, a citizen's so-called right to privacy, a woman's right to abortion, things like that.

It could be The Mediocre Thing.

She's not a crooked lawyer, she's not a shyster. There might not be any skeleton in her closet. There might not be any smoking gun.

She just might be one of America's six gazillion mediocre lawyers.

President Bush has defended her by saying that while she was a White House counsel, she helped him with lots of profound and important Constitutional matters. He just won't tell anybody what the profound and important Constitutional matters were. (Lawyer-client confidentiality.)

The new Chief Justice, Roberts, had argued 39 cases before the U.S. Supreme Court before he was nominated.

Harriet Miers: 0.

In 1970, President Richard Nixon sent two nominees to the Senate who, in short order, were rejected. One of them, G. Harrold Carswell, was publicly tarred with the accusation that he was mediocre. Even though it's no crime to be mediocre, that piece of slung mud grew legs in the media and was sinking his chances.

Nebraska Senator Roman Hruska came to Carswell's defense.

Being a mediocre lawyer, he said, shouldn't be the kiss of death for a Supreme Court nominee.

"Even if he was mediocre," Hruska argued, "there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there."