An Apology to Harriet Miers

I was among those who derided Miers’s failed nomination to the Supreme Court in 2005. Then she was replaced by Samuel Alito.

Harriet Miers, former White House counsel to George W. Bush and onetime nominee to the Supreme Court.

(Lawrence Jackson / AP Photo)

Samuel Alito is the most partisan justice on the Supreme Court. Yes, Clarence Thomas is the most corrupt, Neil Gorsuch is the most dangerous threat to a functioning society, and Brett Kavanaugh is the most… attempted rape-y. But Alito is the one whose sole raison d’être is to fashion Fox News talking points into national laws. His sundry flag controversies, for which he has pathetically blamed his wife, are merely the public-facing proof of his rejection of the will of democratic majorities.

As the public becomes more aware of the bias Alito has always shown in his written opinions, it strikes me that the deepest irony of Alito’s Supreme Court career is that it almost never happened. It was made possible only because people rejected the first choice for his job: Texas litigator Harriet Miers.

Miers was a George W. Bush crony and sycophant. At the time, people said that Miers should not be elevated to the Supreme Court because she would be a partisan hack who would simply do what Bush and the Republican Party told her to do. I know, because I was one of those people. When Bush was unable to push his friend through the confirmation process, he nominated Alito as the backup. I have come to understand that I owe Harriet Miers an apology.

For those fortunate enough not to remember the many grubby details of the episode, here are the basics. Miers was one of Bush’s closest friends. She had come with Bush from Texas and served as deputy chief of staff and eventually White House counsel in the Bush administration. She was a graduate of Southern Methodist University, a born-again evangelical Christian, and also a good friend of then–Secretary of State Condoleezza Rice. Before serving in government, she had been a private litigator in a large Texas law firm.

But Miers did not become a Supreme Court contender because of her credentials as a litigator or her service to the conservative legal movement. Miers was nominated because she spent most of her public career up to that in service to Bush. And she treated Bush, the bumbling oaf and war criminal, with a saccharine level of sycophancy: During her confirmation process, a series of letters she wrote to Bush came to light and… let’s just say there’s a level of fangirling that most people grow out of in their 20s. In one letter Republicans made famous at the time, she told Bush, “You are the best governor ever—deserving of great respect.”

Miers’s resume was nontraditional for a potential Supreme Court justice, and her nomination quickly hit roadblocks. She was unable to garner the support of Republicans, especially the movement conservatives who felt she was an unreliable vote against abortion. The problem, according to conservatives at the time, was that, other than the fact of her Christian faith, Miers had no record of opposing reproductive choice. She could offer no proof that she was willing to reject decades of established Supreme Court precedent, enshrined in Roe v. Wade.

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This was a huge problem for conservative, because they felt they had been “burned” in the past by their own nominees. Justices like John Paul Stevens, David Souter, Anthony Kennedy, and Sandra Day O’Connor were all appointed by Republican presidents, yet they all ended up being solid votes to uphold not only abortion rights but also voting rights and LGBTQ rights.

All of those Republicans had been appointed in the name of “limited government” and “judicial restraint.” What that meant, for those justices, was that the courts should defer to the elected branches of government, and align their rulings with past Supreme Court precedent as much as possible. Those justices were unwilling to strike down popular laws, like the Voting Rights Act, or take away rights past court precedents had granted.

By the time we get to the 2000s and the Bush administration, conservatives realized that their insistence on judicial restraint had failed to produce the right, white outcomes they desired. Instead of finding justices that would uphold the laws, they needed to find justices who would reject precedent and veto acts of Congress that did not produce conservative results. The only way to get those people was to create them themselves (hence the Federalist Society’s investment and focus on law schools) or find people with a proven record of ideological extremism.

Miers would have been a reliable vote for Republicans, but she couldn’t prove that she’d be a reliable vote for extremism, because she had no dogmatic judicial record to fall back on. And so, after 24 days of drama, during which Republicans honed their attacks not on her abortion squishiness but on her intellect and legal acumen, she asked Bush to withdraw her nomination; he then replaced her with Alito.

Alito was confirmed on January 31, 2006, by nearly a party line vote: 58-42. All the Republicans, save one, Lincoln Chaffee of Rhode Island, voted for Alito; so did four conservative Democrats. The world has been worse every day since.

I want to be clear: I do not think that Harriet Miers would have been a good justice. She would have voted exactly the same way Alito votes maybe 95 percent of the time. Miers, along with any other justice Bush would have picked, would, almost certainly, have been unfriendly to abortion rights, LGBTQ rights, and the robust defense of civil rights for people of color. She would have been solicitous towards corporations and antagonistic toward workers. She would have elevated Christian fundamentalist beliefs at the expense of all other religions. She would have been pro-gun and pro–death penalty and against the rights of criminal defendants. That’s the judicial philosophy of every Republican on the bench. That philosophy is how Republicans get to the bench in the first place.

But the difference between what Alito has been versus Miers might have been lies in the few cases where Congress (or the states) has clearly and loudly rejected the prevailing conservative dogma. Or where established Supreme Court precedent runs directly counter to whatever it is Leonard Leo and the Federalist Society wish the law to be. When those cases arise, Alito always rejects precedent, rejects Congress, and rejects even the facts when they don’t agree with his ideology.

I don’t think Miers would have done that, not all the time, not like Alito does. Consider 2013’s Shelby County v. Holder. In that case, Bush appointees Roberts and Alito provided the crucial votes in a 5-4 decision to gut the Voting Rights Act; specifically, they threw out the “preclearance” section of the VRA, which forced former Confederate states to ask the Department of Justice before changing their voting laws to disenfranchise Black people. This section, along with the rest of the VRA, was reauthorized by President Bush in 2006. I simply do not believe that a Bush crony would have gutted a law that was reauthorized just six years earlier with 390 votes by a Republican-controlled House, 98 votes by a Republican-controlled Senate, and signed by a Republican president to much fanfare.

And this one vote could have made all the difference. If Miers instead of Alito had been on the bench, I believe the Voting Rights Act’s preclearance section would have survived, which means that states would not be able to suppress the votes of people of color so easily, which, I believe, means that Donald Trump would have lost in 2016. And without Trump (and the anti-abortion justices he put on the court), Miers’s vote on abortion wouldn’t have mattered. You can make an argument that the moment the Republicans rejected the Bush crony was the precise moment they lost their party to what would become MAGA. The extremist conservative majority Bush placed on the court in 2006 laid the groundwork for the antidemocratic authoritarianism that now rules their party. Cultism came to the Supreme Court before it arrived anywhere else in government.

But Supreme Court counterfactuals aided by hindsight are not the only reasons I owe Miers an apology. My mistake wasn’t merely in gaming out her potential votes. My mistake was that I bought into the conservative-crafted media narrative about her: that she was unqualified, lacked the credentials of other august justices, and was kinda dumb. The sin I must atone for is my own Harvard-bred elitism, and how that, more than anything else, made me sure that Miers did not belong on the Supreme Court.

Supreme Court justices usually go to Harvard or Yale Law School. Miers went to law school at Southern Methodist University, a school more famous for its football program than legal education. Future Supreme Court justices usually clerk for Supreme Court justices after they graduate from school. Miers clerked for a district court judge in Texas, and then went into private practice. Future Supreme Court justices usually have a career in academic scholarship before being appointed to one of the circuit courts of appeal to get more seasoning as a judge. Miers has no scholarship, and her first public service job came in 1995 when Bush appointed her to head the Texas Lottery Commission.

Alito, by contrast, looked the part. Yale Law School, editor of the Yale Law Review, US Attorney for New Jersey, and he had served for 15 years on the US Court of Appeals for the Third Circuit at the time he was nominated for the Supreme Court.

And Alito seemed smart. During Miers’s confirmation process, Republicans let leak all manner of insults about her intellect. Multiple Republican senators said that she “failed” the in-person meetings with them, criticizing her for not knowing relevant precedents or misremembering which former Supreme Court justice said what. Senator Arlen Specter, then the Republican majority leader of the Senate Judiciary Committee, was purportedly unimpressed with her answers on a judicial questionnaire, suggesting that she lacked the legal acumen to be on the Supreme Court. Alito had none of these alleged intellectual problems.

At the time, I was a young associate at a prestigious Manhattan law firm, and I was sure that these leaks were damning. I discounted the support Miers received from Democratic senators like Charles Schumer and Harry Reid. Robert Bork, the functional founder of Originalism and an inveterate racist, wrote an op-ed in The Wall Street Journal where he declared: “Ms. Miers, though undoubtedly possessed of many sterling qualities, is not qualified to be on the Supreme Court.” Instead of thinking “anybody Bork thinks is unqualified can’t be all bad,” I thought, “Ha. Even Bork thinks she’s an idiot.”

But no, I was the idiot. My failure, I now understand, was that I bought into the idea that Supreme Court justices—even the ones I disagreed with—are legal titans. I believed that Supreme Court justices were interested, for the most part, in doing law, not doing politics. I thought cases like 2000’s Bush v. Gore—in which the conservative justices abandoned all of their alleged intellectual principles to install Bush as president—were the odd exception as opposed to the eternal rule. I (shamefully) believed that going to the “right” schools, and working for the “right” employers and institutions somehow qualified you to make the “right” decisions about other people’s lives. I thought Miers would be a religious wing nut, transubstantiating the law into Jesus-power, while Alito would be horrible but keep his opinions tethered to the rules and norms his education and breeding had trained him to respect.

Again, I have never been more wrong about something in my whole life. Well, that, and my belief in 2016 that the country wasn’t quite racist enough to elect Donald Trump. My instinct to give white folks I don’t know yet the benefit of the doubt is really something I should seek to address through therapy.

I would like to think that I learned my lesson. Unfortunately, I may soon get an opportunity to test it. Should Trump win this November, he will undoubtedly get to appoint additional Supreme Court justices, including perhaps Alito’s replacement for the next generation. There are a lot of well-pedigreed conservative extremists clamoring for that potential spot, including: James Ho, Stuart Kyle Duncan, and Neomi Rao. All of these people would be Federalist Society–approved and use their lifetime power to do untold damage to the country, and especially women, Black people, and the LGBTQ community.

There is one other judge, though, who is a candidate for a Trump appointment—perhaps the leading candidate—should Trump get his way: District Court Judge Aileen “the MAGA” Cannon. Cannon’s résumé is, frankly, not as light as Miers’s was. Cannon went to Michigan Law School, clerked for an Eighth Circuit judge, and has been a judge herself (albeit at the lowest federal level) for a few years. But I think everybody knows that her main “qualification” for the Supreme Court is that she’s a Trump loyalist who can be trusted to do whatever Trump wants her to do should she get that position. Cannon’s embarrassing (yet successful) attempts to keep Trump out of jail are the reason people even whisper about her as a potential Supreme Court pick.

To most people, Cannon would be the worst possible person that Trump could pick, but I’m here to tell you that she’s probably not. I have actually read the opinions from Ho, Duncan, Rao, and a host of others who are (probably) making pilgrimages to Harlan Crow’s yacht in search of his blessing. I’m telling you that any of those people will rain down 30 years of the most extremist, reactionary, Handmaid’s Tale–style opinions one could possibly imagine. Cannon would likely vote like the rest of them, almost all of the time. But she has yet to show their creativity or adeptness at bending the law to their malign will. Cannon is just a simp for Trump. I hate to say it, but having a Supreme Court justice who views themselves as a rubber-stamp for Trump is probably better for the country than giving Leonard Leo another justice for 30 years. Cannon would sign off on whatever fascist thought poops out of Trump’s brain, but the FedSoc judges create the poop.

And if I’m wrong about that, well then Cannon cannot be any worse than any standard-issue FedSoc judge. Any judge Trump picks will be terrible, but at least Cannon might be terrible in ways that Leonard Leo didn’t design.

That’s what I’ve learned from Harriet Miers, the hard-earned lesson I’ll take with me for eternity.

Miers is fine, by the way. After her failed confirmation, she went back to her mega law firm in Texas, where she was eventually made managing partner, which means she’s made a lot of money for herself. Recently, she was appointed as the chair of Texas’s Access to Justice Commission, an institution created by the Texas Supreme Court with the goal of improving legal representation and access to courts for low-income residents in Texas. It’s the kind of job Sam Alito would rule unnecessary: He’d say that all people have to do to access justice is accept Christ and stop being poor. I don’t know if she’s MAGA now or not; when you are not on the Supreme Court, you can pretty much fly any flag you want without public concern. Still, I doubt that she is: unless they are running for office, people who love George W. Bush as much as Miers does tend to reject Trump even if they vote for him, given the way he’s disrespected the Bush family.

Ultimately, though, Miers’s politics are not my concern. She was never given unaccountable lifetime power, so her political views really don’t matter. She wasn’t denied that opportunity because she was too politically connected with Bush; she was rejected because she wasn’t political enough. She couldn’t be trusted by the conservative establishment to rule in favor of conservative political outcomes, every single time. Alito is a justice, while Miers is not, because conservatives knew Alito would do exactly what he’s been doing these past two decades: fashioning conservative dreams into the nightmares the rest of us have to live with.

Now that I’ve learned what Republicans are really after, it’s a lot easier to spot the difference between conservatives like Miers and conservatives like Alito. It has nothing to do with pedigree, or training. It comes down to motivation. Miers was motivated by love—of George W. Bush and his “compassionate conservative” born-again agenda. Alito is motivated by hatred—of women, equality, and democracy in a pluralistic society.

I’ve learned that you’re always better off going with the person who loves what you hate, instead of the person who hates what you love. The former might create something you find appalling, but the later will only destroy that which you find most precious.

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Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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