PRESIDENT BUSH'S nomination of Harriet Miers to the Supreme Court has been met with a remarkable amount of resistance from conservative pundits, including such luminaries as George Will, who have stumbled over themselves rushing to question her credentials. According to these critics, because Miers is not a well-known judge, attorney, or legal scholar, there is reason to doubt her competency to serve as a Supreme Court justice. Because she is likely incompetent, the reasoning goes, Bush appointed her just because she is a crony.
Frankly, it is stunning that conservatives would jump to these conclusions. Any suggestion that Miers lacks the basic competency to perform the functions of a Supreme Court justice betrays a lack of understanding of how the Supreme Court operates. It also naïvely assumes that the president's task in selecting justices is simply to identify the ''most qualified" individual for the position.
The qualities needed by a Supreme Court justice are not necessarily those needed by an advocate or scholar. By the time the court agrees to take a case, it has already been the subject of rounds of litigation in the lower courts. Indeed, the court generally will not even take a case unless the issues it raises have already been addressed by several federal courts of appeal and state supreme courts. When the court takes a case, the issues it raises have already been well developed and the arguments on each side honed.
Moreover, cases argued before the court are the subject of extensive briefing by the well-qualified members of the Supreme Court bar and the federal and state solicitors general. Each justice also has a staff of four experienced law clerks, top graduates of the nation's most prestigious law schools, to assist them in synthesizing and analyzing the pertinent lower-court opinions and briefs as well as the court's own precedents.
The point is that a Supreme Court justice need not come to the job with an already well-developed expertise in constitutional law. There is not even a requirement that a justice have the fluid pen of a Justice Antonin Scalia; Chief Justice William Rehnquist was known for his straightforward, ''just the facts" writing style. What a Supreme Court justice needs most is good judgment and a principled approach to interpreting the Constitution and laws. And nothing -- nothing -- Miers's critics have pointed to yet suggests that she lacks either judgment or a principled approach to legal interpretation.
To the contrary, President Bush, who twice campaigned on his commitment to appointing judicial conservatives to the bench and who knows Miers well, has vouched both for her judgment and her conservative bona fides. And as White House counsel, she has been required to make judgments on issues of constitutional law, such as the separation of powers, executive privilege, and federal authority. There is no reason for conservatives to believe that she has performed this job incompetently.
Why, then, the rush to dismiss Miers as a mere crony? Mostly it is because conservatives have long had a dream list of nominees to the court, federal judges such as Michael Luttig, Samuel Alito, Edith Jones, Janice Rogers Brown, and Mike McConnell, and non-judges such as Miguel Estrada. To be sure, the failure to have a conservative superstar nominated is disappointing. Each of these individuals likely would have been a superb justice and has used his or her position on the court to advance conservative jurisprudence more effectively than Miers, perhaps, can be expected to.
To assume, however, that Bush is engaged in cronyism because he passed over these individuals for another qualified individual, one whose judgment he is familiar with personally rather than merely as a matter of reputation, is a disservice to both Miers and the president. It also ignores history. Justice Clarence Thomas is among the justices currently revered by conservatives for his service on the Supreme Court, and deservedly so. Yet at the time of his nomination, it would have been difficult to finger Thomas, only recently appointed to the Court of Appeals, as the nation's preeminent jurist, legal scholar, or advocate. He likely was selected in part because his judgment was trusted and in part for political reasons, and the same is likely true of Miers, a woman and evangelical Christian hailing from the underrepresented (on the court) red states.
Conservatives are doing Harriet Miers a grave disservice by their immediate opposition to her. Indeed, the opposition could ultimately prove self-defeating if she is confirmed and begrudges the assaults on her competence and integrity from the right.
Kevin P. Martin is a Boston attorney and a former law clerk to Justice Antonin Scalia.