Boston Cod

Under The Radar: Filling The Bench With Smoke And Mirrors

By Greg O'Brien Codfish Press President Bush?s Supreme Court nomination of White House Counsel Harriet E. Miers, a corporate litigator from Texas who has never been a judge, has late night talk show hosts in overdrive. David Letterman cracked Wednesday night that the nomination of Miers, ?the best Supreme Court nominee within 25 feet of the Oval Office,? is a cornerstone of Bush?s new program for the politically disadvantaged: ?No Crony Left Behind.? ?In selecting a nominee, I?ve sought to find an American of grace, judgment and unwavering devotion to the Constitution,? Bush said Monday. But how about some in-your-face judicial experience? Miers credentials to replace Sandra Day O?Connor?lockstep loyalty to Bush, a litigator to the Walt Disney Co. and a former Dallas City Councilwoman, who once ran the Texas Lottery Commission?are thin reeds, but likely to withstand the squalls from the left and the right over her lack of a public record on key issues. The right complains she is not conservative enough; the left charges that Miers, Bush?s former personal attorney, is too close to the president and ill equipped for the job. ?Harriet Miers clearly has the potential to be a consensus nominee,? said Sen. Charles Schumer, the Democrat from New York. That?s hardly a reason for confirmation, but in these distorting days of special interests and political correctness it?s a litmus test that could earn a ?Gentlemen?s C? in the Senate, and have her black robe back ordered for December. When Ronald Reagan in 1981 nominated O?Connor, then a justice on the Arizona Court of Appeals, no one was more surprised than her son, Scott, now a real estate developer in Phoenix. ?She was a stealth candidate,? he told me weeks ago. ?The astonishing thing was the system found her. If someone today were going to propose that a state court of appeals judge with only two years tenure should be nominated to the Supreme Court, the opposition would be overwhelming?I?m not sure the nomination would fly today.? Will Miers?s appointment have wings? It ought to depend on her willingness to fill in the broad shadows of her curriculum vitae and enlighten us with some of her views. The machinations of the high court are still the public?s business. While Ruth Bader Ginsburg refused to answer Senate queries on her beliefs during her confirmation process, she had a 10-year record on the federal appeals court. Likewise, O?Connor?s earlier decisions as a state court of appeal judge and a Maricopa County superior court judge had been publicly vetted. Bush?s resolve to follow in Reagan?s furtive footsteps and nominate another stealth candidate is a concern, given the battered state of the White House and Republican Party over Iraq, hurricane response, Tom DeLay?s indictment and Senate Majority Leader Bill Frist?s pending probe on stock dealings from a blind trust. We hope stealth in this case gives way to genius. We all know Sandra Day O?Connor, but on the surface at least, Harriet Ellan Miers is no Sandra Day O?Connor.