Bush returns to past in Miers nomination

President's selection for Supreme Court justice goes back to an older tradition of promoting nonjudges

October 04, 2005|By JONATHAN D. ROCKOFF | JONATHAN D. ROCKOFF,SUN REPORTER

Washington -- By nominating White House counsel Harriet E. Miers to the Supreme Court, President Bush departed from the recent practice of promoting judges to the high court, but returned to a tradition of choosing prominent politicians and trusted advisers.

If confirmed, Miers would be the first justice to join the court without any judicial experience since William H. Rehnquist, who was nominated 33 years ago when he was an assistant attorney general in the Nixon administration. Others in the long line of nonjudges include former Chief Justice Earl Warren and Justice Lewis F. Powell Jr.

Friends and colleagues of Miers said her work as a lawyer, her leadership of the Dallas and Texas bar associations and her service with the Dallas City Council, the Texas Lottery Commission and the White House offset any gaps posed by her lack of background on the bench.

FOR THE RECORD - An article yesterday about Supreme Court justices who had no prior judicial experience misidentified John Marshall as the first chief justice of the United States. John Jay was the first chief justice.
The Sun regrets the error.

"Her other experiences make up for it," said Donald W. Griffis, a lawyer in San Angelo, Texas, who clerked with Miers for a federal judge in Dallas in 1970 and still talks with her. "Harriet has worn many hats and carried many responsibilities, all of which make her a person with more experience than most nominees to the high court."

There is no requirement a justice be a judge, or even a lawyer. It was common until recent decades for presidents to select nominees outside the bench. Some of the Supreme Court's most distinguished members had been lawyers, professors and politicians.

Of the 109 justices, 42 have had no judicial experience, said Henry J. Abraham, a retired government professor at the University of Virginia who wrote a history of Supreme Court appointments. Five chief justices came to the court from outside the bench, he said.

The closest approximation of judicial experience of the first chief justice, John Marshall, was hearing minor police cases. William O. Douglas led the Securities and Exchange Commission. Byron R. White was a friend of President John F. Kennedy as well as a deputy attorney general in his administration.

But while President Bill Clinton, in particular, often mused about the merits of naming someone attuned to the practical, the last nine appointees have come from state and federal courts.

John G. Roberts Jr., who just became chief justice, spent the past two years on the federal appeals court in Washington.

Miers' only brush with the bench came with her clerkship for U.S. District Judge Joe E. Estes from 1970 to 1972. Estes' clerks said the judge, appointed by President Dwight D. Eisenhower, emphasized an attention to detail and objective application of the facts of the case to the principles of law at issue. "Ideology was not something you injected in the case," said Jennifer Burr Altabef, a former clerk who later worked with Miers at a Dallas law firm.

Griffis, Miers' co-clerk, said the judge handled some school desegregation cases during their time together but mostly business disputes and personal injury claims.

By background, court watchers said, Miers might most closely resemble Powell, a prominent lawyer in Richmond, Va., who chaired the city's school board and led the American Bar Association before President Richard M. Nixon nominated him.

Powell was considered an arch-conservative when he joined the Supreme Court in 1972. However, his 25 years on the court suggest the difficulty of predicting a justice's actions based on background.

"He very quickly became much more of a centrist," said Sheldon Goldman, a political scientist at the University of Massachusetts Amherst, who wrote a book about picking federal judges.

"Never in a million years would anyone have expected Lewis Powell to support women's rights, abortion rights," Goldman said. "He was a justice who grew in office."

It is that "growth" that terrifies hard-line conservatives, many of whom were critical of Miers' nomination. But President Bush's spokesman said he values the real-world perspective that she would add to the Supreme Court.

"She brings very diverse and broad experience that will likely be very helpful to the court," White House press secretary Scott McClellan told reporters.

Some prominent Democratic senators, including Minority Leader Harry Reid of Nevada, said they applaud the choice of someone who isn't a career jurist.

Nevertheless, the nomination was immediately derided over Miers' lack of judging experience.

Jonathan Turley, a law professor at George Washington University, assailed her credentials generally.

"She is entirely unqualified to be appointed to the Supreme Court," he said. "She is a garden variety civil lawyer who is only distinguished by her friendship with the president."

Amid attacks over his choice of Michael Brown to lead the Federal Emergency Management Agency, the president might have invited more criticism of the qualifications of his appointments by choosing a loyalist from Texas, said Kenneth L. Manning, an associate professor at the University of Massachusetts Dartmouth, who studies judicial politics.

"The modern expectation is that the people appointed to the court are experienced jurists who have distinguished themselves," Manning said. "Miers hasn't done that, and that may pose a problem for Bush, particularly on the heels of the Michael Brown and FEMA mess."

jonathan.rockoff@baltsun.com

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