The Myth of the Paper Trail

You don't have to be a tyro to make it on SCOTUS


One thing all decent people seem to agree on is that Harriet Miers is woefully unqualified for a seat on the United States Supreme Court. But what, exactly, is her disqualifier? Is it that she's an evangelical zealot committed to overturning Roe v. Wade or that she's a "judicial cipher" whose position on abortion President Bush claims never to have discussed with her? Is Miers a sop to the "diversity-mongers" with no real conservative credentials, or a Bush clone whose only strength is the likelihood that she'll vote reliably? Is she an ideological zero or a stealth liberal approved by ideological opponent Harry Reid? Is this a compromise choice made from weakness or an act of imperial fiat designed to show that the president could even get his horse a seat on the high court? Is she an unnecessary roll of the dice or a natural follower who lacks even the chutzpah to call the president a dummy? Should Miers be condemned because she merely attached herself to a rising political star or because she kicked back in the cushy private sector rather than in the dog-eat-dog public sector?

With so many uncertainties, at least we know one thing for sure: Miers' greatest strength is her lack of a paper trail that could lead to an ideological fight in her Senate confirmation hearings. Forget her bragging rights as president of a 400-person law firm, president of the Dallas Bar Association, and president of the Texas State Bar. Miers' real selling point is that she provides no outstanding opinions or controversial rulings for her opponents to exploit; and in the contemporary climate of Senate confirmation hearings, this is the most important qualification a candidate can boast.

Or is it?

The idea that only a judicial non-entity can get through the Senate confirmation process has become stubbornly fixed, and is accepted without much question even by the many conservatives who have been excoriating Bush for the Miers nomination. Is it true? Consider the two most recent pre-John Roberts appointees: Stephen Breyer had generated a copious paper trail as both a law clerk and a judge, while Ruth Bader Ginsburg had published throughout her career as a professor at Rutgers and Columbia Law Schools. At the time of their confirmations, they had been writing opinions on appeals courts for, respectively, 14 and 13 years. Both brought distinguished and verifiable records of their opinions. Yet both earned the almost unanimous approval of a Senate where Bill Clinton's Democrats had almost exactly the same proportion of seats that George Bush's Republicans have now (the only difference being that there's now one independent seat).

So how did the idea of non-entity nominees become fact? The 1987 confirmation process of Robert Bork, who was shot down in a 58-42 Senate vote largely on the belief that he was too formidable and opinionated a figure, set the idea up, and President George H.W. Bush' nominations of the thinly documented Souter and Thomas can be seen as reactions to that disaster. The idea of blandness as the Supreme Court's distinguishing characteristic, however, has grown up over a 30-year period, as Michael McMenamin wrote in Reason this July.

But is the deadly paper trail a truism or a self-fulfilling prophecy? Following Bush Sr.'s post-Bork retreat, prominent nominees with extensive paper trails made a comeback. Bush, with a comfortable Senate majority and a feckless opposition party, is in an unusually good position to be bold in his choice of nominees.

So Bush's regression to the nominee mean has less to do with Senate politics than it has to do with Bush. Few politicians have ever excelled at the tactic of setting low expectations as well as Bush has. It's a method that worked for him as far back as his Texas apprenticeship, where he came on as humble as Uriah Heep, and managed to turn then-Gov. Ann Richards' spiky personality against her. It worked for him in all the presidential debates, where he successfully built up the historically dull Al Gore and John Kerry as rhetorical wizards against whom he'd be lucky just to go the distance (let alone win the debates). It worked most recently in the confirmation of John Roberts, which, we were promised, would be a crucifixion in the hearings, a henpeck in the deliberations, and a holocaust in the vote. Surprise, surprise: The Roberts process was as collegial an affair as the Capitol has seen since whenever the last fake Senate dustup occurred.

It's a good (though not sure) bet the Miers confirmation will be something similar. But as with the terrorists in the Steven Seagal movie Under Siege, there's one thing Bush didn't count on—the cook. As Supreme Court confirmation hearings have been drained of their actual meaning as advice and consent, they have taken on an important new one: as a sounding board for an assortment of culture war issues. No less than liberals, conservatives like the idea of a contentious confirmation process. They were spoiling for a fight in the Roberts hearings, and bought plenty of TV commercials and blogads in anticipation of it. It didn't happen then, and the prospect of another non-entity nominee and uneventful confirmation is galling.

Perhaps Bush's supporters should have seen it coming. To praise John Roberts as a sterling conservative choice and damn Harriet Miers as a cipher is fantasy. The main difference between the two is that Miers is a woman and didn't attend an elite school—and both complaints have been getting remarkably open play in the last few days.

But conservatives have been looking for a chance to assert their manhood against Bush for months. By denying them the agon they were hoping for, Bush provided conservatives a pretext for a rebellion. He has forgotten a political constant: There's no such thing as a dependable base. As always, it was Pat Buchanan, the original conservative rebel, who phrased it best:

Reshaping the Supreme Court is an issue that unites Republicans and conservatives. And with his White House and party on the defensive for months over Cindy Sheehan and Katrina, Iraq and New Orleans, Delay and Frist, gas prices and immigration, here was the great opportunity to draw all together for a battle of philosophies, by throwing the gauntlet down to the Left, sending up the name of a Luttig, and declaring, "Go ahead and do your worst. We shall do our best."

Do the Bushites not understand that "conservative judges" is one of those issues where the national majority is still with them?

The rebellion will most likely be brief in duration. Nobody's losing any sleep because William Kristol pronounced himself bewitched, bothered, and bewildered, nor even because George Will is urging a nay vote. What's ominous is not just that Bush didn't really want to nominate a conservative justice; it's that he didn't know he had to. That's a failure of range-finding, an unusual slip in his career.

The president still has three years to correct his course. Given that he's likely to have one more High Court appointment before he leaves the White House, let's hope Bush starts by throwing overboard the myth of the pristine nominee who is unencumbered by a personality or a career history.