It is hard to know what to make of the nomination of Harriet Miers to the Supreme Court. Clearly, she is not as well qualified as many other candidates who are currently sitting judges and have had an opportunity to develop a judicial philosophy and to test that philosophy on hard cases. Her years of practice as a lawyer are equaled by many other attorneys who have practiced in a large firm.
If anything, her years of active practice and experience as co-manager of her law firm cast doubt on her judgment. Miers' firm wrote tax opinions, at $50,000 a pop, supporting super-aggressive tax transactions for wealthy individuals that were created and promoted by Ernst & Young. See a detailed description of the shelters and the role of Miers' firm here. For the Senate Report that discusses the role of Miers' firm in tax shelters, see The Role of Professional Firms in the U.S. Tax Shelter Industry, by the Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Affairs. Should the Senate consent to the appointment of a lawyer to the Supreme Court who has, at least indirectly, approved the issuance of "cloned" tax shelter opinion letters when in practice, at a time when the Treasury is in the midst of a campaign to stop the promotion of such tax shelters? At the least, it reveals that she is willing to support literalistic interpretations of statutes that may result in treatment that contravenes the statutory purpose. See this discussion by Victor Fleischer. At the worst, it suggests that she may have been willing to support cutting legal or ethical corners to allow the firm to earn big fees by providing opinions that leave out relevant facts and provide inadequate analysis of the weaknesses of the transaction.
Just as clearly, Miers was nominated to her position because of her relationship with the man who nominated her. That further example of cronyism in the Bush White House is disturbing, in that it suggests that she may feel beholden to Mr. Bush and thus may shape her views when on the Court to suit the man who put her there. Cronyism results in elevation of people who otherwise would not be given a post and raises concerns that important government positions will be awarded to bunglers who may do long term damage to the institutions of government. Michael Brown at FEMA is a vivid example of the dangers of crony appointments: he had no experience in handling disasters, appeared to think that his role was primarily to ensure good PR for the Bush administration, let the agency be drained of its most competent people, and then systematically bungled the emergency operations that had been entrusted to him. Is Harriet Miers a similar example of a crony who simply doesn't have the experience or the intellectual depth to hold the post to which she is being nominated? The fact that the Supreme Court is a life apointment makes that question even more important.
And then there is the question of White House secrecy about its nominees. Bush has refused to release papers that might shed some light on Miers' competence for the job for which she has been nominated. And while the Bush administration objected vehemently to anyone who suggested that Roberts' ideology was a factor to be taken into consideration in judging his suitability for the Court, Bush has gone out of the way to reassure his conservative base that he "knows the heart" of this nominee and therefore that he is comfortable with her ideology. What's not ok for Democrats raising questions about Roberts is apparently perfectly ok for the Repubicans when they want to reassure themselves about Miers! At the same time, Rove has been working to reassure right-wing leaders of Bush's base that Miers' positions will suit them. So we saw James Dobson, the influential founder of the right-wing group Focus on the Family, serving as a promoter of Miers after speaking with Karl Rove and claiming on his radio program last Wednesday that he was privy to information that made him believe that Miers would be a "good" justice (defined, one must suspect, as one that can be supported by Focus on the Family, and therefore one that is compatible with the group's desire for second-class citizenship for gays and lesbians and for the demise of women's rights to control their own reproductive processes). According to the New York Times, Dobson was put on a conference call with right-wing activists to reassure them that "Miers shared their views of the law." David Kirkpatrick, Endorsement of Nominee Draws Committee's Interest, N.Y. Times, Oct. 10, 2005, at A16. According to the article, Dobson "has said he is supporting Ms. Miers's nomination in part because of something he has been told but cannot divulge." Id. Does this mean that the White House gave back-door information that it has claimed is subject to executive privilege to selected supporters like Dobson, via White House master planner Karl Rove? One hopes that cannot be true, because it would represent blatant partisanship that has no place in the serious deliberation constituting the Senate's advice and consent on judicial nominees.