Why Miers?

Not only has Harriet E. Miers never been a judge, she has barely been a litigator.

She must not have done very well in law school, because had she graduated with any kind of honors, we would have heard about it.

Then, according to the blog Is That Legal,, citing New Jersey lawyer Peter Goldberger:

A quick WestLaw search suggests that Harriet Miers has never argued before the Supreme Court (nor has her name appeared on brief there), and she has argued three cases before the Fifth Circuit (with her name appearing as additional counsel on a handful of others) over the last 30 years -- two of them pro bono or by appointment of the court. Her argued cases are: Thanksgiving Tower Partners v. Arnos Thanksgiving Partners, 64 F.3d 227 (5th Cir. 1995) (commerical real estate dispute); Ware v. Schweiker, 651 F2d 408 (5th Cir. 1981) (volunteer pro bono counsel for Social Security disability applicant, through legal aid program); Popeko v US, 513 F.2d 771 (5th Cir. 1975) (sec 2255 appeal for federal prisoner, by appt of court).

Her record in the Texas state courts is equally limited.

The one defense to the cronyism charge is that President Bush and Miers are probably not all that close. You don't appoint good friends to be lottery commissioner. That's where you install friends of cousins' friends. That she was Bush's "personal lawyer," strikes me as inconsequential, too. Bush never had the kind of career, nor the inclinaion (that is an interest in doing things legally), that would lead him to forge strong ties to his lawyer.

Then there is the comparison with other non-judges to get the high court nod. These individual tended to be towering figures-- attorneys general, senators and so on.

Of recent justices who were never judges, all were either distinguished lawyers, holders of high office or top Justice Department lawyers. Here’s a list:

Owen Josephus Roberts: appointed by Hoover in 1930; was in private practice, but also had served in federal law enforcment as special counsel

Stanley Forman Reed: appointed by F. Roosevelt 1938; was U.S. solicitor general

Felix Frankfurter: appointed by F. Roosevelt in 1939; was a top tier law professor at Harvard

William Orville Douglas: appointed by F. Roosevelt in 1939; was SEC chairman

James Francis Byrnes: appointed by F. Roosevelt in 1941; was a U.S. Senator

Robert Houghwout Jackson: appointed by F. Roosevelt in 1941; was U.S. Attorney General

Harold Hitz Burton: appointed by Truman in 1949; was a U.S. Senator

Thomas Campbell Clark: appointed by Truman in 1953; was U.S. Attorney General

Earl Warren: appointed by Eisenhower in 1953; was Governor of California

Byron Raymond White: appointed by Kennedy in 1962; was Deputy U.S. Attorney General

Arthur Joseph Goldberg: appointed by Kennedy in 1962; was Secretary of Labor

Abe Fortas: appointed by Johnson in 1965; was in private practice and known as a first class Supreme Court advocate

Lewis Franklin Powell, Jr.: appointed by Nixon in 1971; was in private practice, also president of the ABA

William Hubbs Rehnquist: appointed by Nixon in 1971: was Ass't U.S. Attorney General


Harriet Miers was a top manager of her law firm, but never a leading lawyer by any lights. To be sure, may Supreme Court justices become “great” or have greatness thrust upon them. They don’t necessarily start out that way. (And after all, what is a federal judge but a lawyer who knows a senator?) Still, unlike the future justices listed here, she has not been steeped in federal law or the type work in which federal judges must know.