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An 'Honest Broker'

By Douglas W. Kmiec
Tuesday, October 4, 2005

Rush to prejudgment. This is pretty much the order of the day regarding Harriet Miers. Crony. Intellectual lightweight. Souter redux -- all of these political epithets have been tossed hurriedly and ungraciously toward President Bush's nominee for the Supreme Court.

Conservative and liberal alike were dumbfounded. With a long list of distinguished federal jurists and formidable constitutional minds to choose from, how could the president select someone lacking not only a Supreme Court clerkship but, as far as anyone knows, even a Supreme Court appearance?

Easy. The president actually believes that, as Alexander Hamilton put it, the Supreme Court is intended to be "the least dangerous" branch of government. Hamilton himself drew this inference from Montesquieu, who taught the first Americans everything they knew about the separation of powers. And the most important thing Montesquieu taught the Founders is that the political or policymaking branches are to remain separate from the judiciary if tyranny is to be avoided. Indeed, Montesquieu instructed, the judiciary should be "next to nothing."

In other words, those asked to interpret the law fashioned by legislative assembly are expected to be objective, impartial and circumspect in deciding issues no more broadly than the legal dispute needing resolution. Jurists are to be fair and, while learning and practice in the law are expected, no justice is invited to propound a personal philosophy on the great issues of the universe: abortion, affirmative action, assisted suicide, religion in public life.

But, it is claimed, she is so unlike John Roberts. In fact, though, Miers is exactly like Roberts in one crucial aspect: They are both steadfast adherents to a judicial ethic of no personally imposed points of view. The cognoscenti snicker when the president reaffirms his criterion of judges who will shun legislating from the bench, since to legal realists, it is inconceivable and to political ideologues it is a missed opportunity. They all do, they all will, goes the refrain. To which Roberts repeatedly answered: No, not this umpire. The same answer can be expected from Miers as she makes her bid to join the officiating crew.

Roberts, of course, does have an encyclopedic knowledge of the court's jurisprudence -- even as he has studiously avoided saying whether he likes any of it. The conservative whine on the blogs is that Miers will need to be cross-examined by the Senate Judiciary Committee to see if she even knows the names of the court's principal cases. Some say that this accomplished counsel may not muster a passing grade from the American Bar Association (ABA). Nonsense.

Miers is not Roberts's equal in court doctrine, but few mortals are. No one who examines her skill and acumen in the practice of law, though, can doubt her capability to master it. This is a woman who went from being the first female to break through the Texas old-boy network to being managing partner of a firm of 400-plus lawyers. She was elected state bar president and defended the ABA's nominee screening role, even when the political wisdom in the Bush administration itself was to the contrary. Miers's résumé is one of hard work and service to corporate clients such as Microsoft and to those too poor to afford a lawyer. Her pro bono commitments in Texas to legal aid in immigration and civil cases are well known.

Senators of both parties encouraged the president to look outside the so-called judicial monastery. If they were serious -- and they should have been -- Miers has precisely the right background. A former at-large member of the Dallas City Council, she has a sense of accountability at the grass-roots level. Her more than two decades of advising clients and meeting their expectations will help her assess the practical import of some of the court's abstract and too often sharply divided handiwork. And on the last point -- reaching consensus -- Miers has had a pivotal role in the White House for the past four years doing just that. As staff secretary, deputy chief of staff and now counsel to the president, Miers has a reputation, as described by her former boss Andy Card, as an "honest broker."

Miers once described her method. "People understand winning or losing," she said. "What they don't understand is that they didn't have a fair hearing." It's elemental, perhaps, but all the constitutional erudition in the best legal library could not summarize the judicial role better.

The writer is chairman and professor of constitutional law at Pepperdine University. He served as head of the Office of Legal Counsel to presidents Ronald Reagan and George H.W. Bush.

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