Miers' Qualifications

With all the talk of how Harriet Miers is unqualified to be a Supreme Court Justice, it seemed to me to be a useful exercise to ask a few comparative questions:

1) Miers would replace Sandra Day O'Connor. How "qualified" was Justice O'Connor when she was nominated by President Reagan in 1981?

2) President Bush promised to nominate a justice like Clarence Thomas. How "qualified" was Justice Thomas when nominated?

3) Conservatives want to avoid another Souter. How "qualified" was Justice Souter when he was nominated?

4) The presumption in the media and blogosphere is that Miers is substantially less qualified than all of the sitting members of the Court were when they were nominated, especially Justice Roberts, who is painted as a kind of super-hero of the law. Is any of this true?

The biographies of the Justices are available at the Supreme Court's webpage. I have reviewed the relevant "experience" of each prior to being named to the Court, considering their law schools, their experience as a judicial clerk (usually fresh out of law school), their experience in private practice, as prosecutors, in academia, as leaders of bar associations, in elective office, in the Executive branch, in the White House, and, finally, as a Judge.

Five justices went to Harvard Law School, and one each to Columbia, Yale, Northwestern and Stanford. Miers' degree from SMU is not as good, if that sort of thing means anything to you. To me it can just as easily mean that she wanted to stay in Texas near her family. We have lawyers in our firm who went to Harvard and we have lawyers who went to Wisconsin and Marquette and Minnesota and Loyola, etc. There are very very good lawyers who went to Marquette and mediocre lawyers who went to Harvard.

Three justices had been clerks for Supreme Court justices, Roberts, Breyer and Stevens, and Ginsberg had clerked in a District Court. Five other justices did not clerk, so Miers would not be alone here. Again, I don't think this thing matters that much if what you care about is the merit of the nominee at age 60.

Four justices have substantial academic experience as professors, Ginsburg, Scalia, Kennedy, and Breyer. The other five have none. Again, Miers would not be alone. However, I would agree that a significant tenure in academia thinking and writing about the subject matters that are likely to come before the court is an important qualification. However, I would also bet dollars to doughnuts that the vast majority of the pundits talking about Harriet Miers' qualifications have never read a word of academic writing written by any Supreme Court justice.

Miers would be the only judge without any judicial experience, which I also agree is an important qualification, particularly experience on the federal appellate bench. However, and somewhat surprisingly, only three justices had 10+ years of experience on federal courts of appeal, Kennedy, Ginsberg and Breyer. Stevens had five years as a Judge on the Seventh Circuit; Scalia had four years as a judge on the D.C. Circuit; Roberts had only two years on the D.C. Circuit, and Thomas had only a year and a half on the D.C. Circuit. Souter had 12 years as a state court judge in New Hampshire, but O'Connor, whom Miers would be replacing, had only 6 years on Arizona state courts, and never on its highest court. (Interestingly, Souter and O'Connor are the only justices who have ever actually heard a case as a trial court judge, but I've run into a lot of trial court judges in my practice, and while I have high regard for many of them, there are a lot of them who aren't so hot, so I can't say that's a great qualification.) Again, however, I would note that it's a safe bet that the majority of the pundits in the media and the blogosphere have never read a single opinion written by any of these judges before they came to the Supreme Court, and very few of their Supreme Court opinions.

On the other hand, Miers by far has the most experience in the private practice of law; she is the only one of these lawyers who has managed any kind of law firm, much less a 400+ lawyer firm. It is fair comment to say that most, if not all, of the others are the legal equivalent of hot-house flowers, operating in relatively rarefied air.

In addition, Miers by far has held the most significant leadership positions in her local and state bar associations. The only other justice who appears to have any similar experience is Justice Stevens, who was Second Vice President of the Chicago Bar Association for a year in 1970. It is significant to me that her colleagues who knew her work in Texas thought enough of her to elect her President of her local and state bars, although I would also note that many very good lawyers aren't that interested in doing bar work.

Only O'Connor and Miers have ever held elective office, O'Connor as a two-term member of the Arizona State Senate, and Miers as a one-term member of the Dallas City Council. I do not view either of these low level positions as particularly important.

Finally, Miers by far has the most significant executive branch experience and the only significant White House experience. Roberts was associate counsel to President Reagan as a very young lawyer 20+ years ago. Miers is White House Counsel now. No contest. This is particularly important as a qualification, I would posit, in wartime.

Here's my conclusion. If "qualifications" are viewed objectively, and if you accept my premises that the most important qualifications are, in order, (a) significant experience as a federal appellate judge; (b) significant experience as a law professor; (c) significant recent experience in the White House at a high level; and (d) significant success in the private practice of law, I would say that Harriet Miers is more qualified than Justices O'Connor, Thomas and Souter were when they were nominated; as qualified as Stevens and Roberts; and less qualified than Kennedy, Ginsburg, Scalia and Breyer.

The one that may jump out at people there is my conclusion that she is as qualified as John Roberts. Here is my reasoning. Roberts was a law clerk for the Supreme Court, but I discount anything that anyone does in their 20s as immaterial to their merits in their 50s other than as disqualifiers. He didn't disqualify himself in his 20s (I did!), but neither did Harriet Miers. Roberts also had some significant White House experience, but not nearly as significant as Miers, and obviously not as recently. On the other hand, Roberts has been a judge, while Miers hasn't. But Roberts has only been a judge for two years, and I don't consider that experience to be a huge counterweight to Miers' more significant White House experience. So the comparison thus would boil down to whether I think Roberts' experience arguing before the Supreme Court as Deputy Solicitor General and in private practice outweighs Miers' private practice experience trying cases and arguing before lower courts. I think the difference is largely a function of your job description and the types of clients you have, not a significant predictor of ultimate merit as a Supreme Court justice.

Note: none of this has anything to do with her ideology, or how I think she would vote on any particular issue. I am simply trying to look objectively at the resumes.

UPDATE: It turns out that Miers was a law clerk for a federal district court judge for two years, just as Ginsburg was. I learned this fact, by the way, from her answers to a questionnaire for the Judiciary Committee, which makes for interesting reading. Again, while her qualifications are still not the equal of Scalia, I continue to believe that a fair reading of her resume and her list of fairly significant accomplishments as detailed in the questionnaire suggests that she is well-within the range of qualified Supreme Court justices.