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How will Harriet Miers' obit begin?

By Joan Ryan
The San Francisco Chronicle
October 6, 2005

When I watched Harriet Miers this week at the press conference to announce her nomination to the Supreme Court, my first thought was about her obituary.

I think a lot about obituaries, mostly in regards to people who are still alive. I often wonder, when I read about or am witness to milestones in their lives, whether this will end up being their defining descriptor, the inevitable subordinate clause in their obit's first sentence: Jane Doe, who donated half her $53 million lottery winnings to a Burlingame animal shelter, died Wednesday ... John Doe, who created the popular "Creole Jones" mystery series, died Sunday...

Maybe Jane Doe bred prize-winning poodles before she won the lottery. Maybe John Doe cracked high-profile murder cases before turning his attention to writing. But the subsequent developments in their lives elbowed these earlier accomplishments off center stage.

If Harriet Miers is confirmed, everything that has distinguished her so far -- first woman president of the Texas Bar Association, White House counsel -- will be busted down to walk-on parts.

At age 60, Miers faces the lovely possibility that the most notable chapters in her life are just beginning, a possibility I like to believe could be true for any of us -- that on any given day our lives could jump the curb and hurtle off in some new, unexpected direction.

I love stories of rebirth and reinvention, especially when it arrives relatively late in life. But as I watched Miers with President Bush this week, I wondered if hers was the kind of curb-jumping to be rooting for.

The Supreme Court is a high curb, particularly for someone who has never spent a minute as a judge. Though appointing non-judges is not unprecedented, and I certainly would like to see a woman replace Sandra Day O'Connor, installing Miers in a lifetime job on the Supreme Court strikes me as a bit like granting tenure to someone who has yet to teach a single lesson.

Jesse Choper, Boalt Hall law professor at UC Berkeley, disagrees. Her inexperience, he says, could strengthen the court, though the narrowness of her career -- almost completely in Texas and mostly in corporate law -- is a legitimate concern.

"I think it's a plus to have someone from another walk of life in the profession, a different perspective, a different knowledge base," he said. "You want to get the right kind of person, but there's been a goodly number of justices who have not come with judicial experience and did pretty well for themselves." One of them was the man for whom Choper served as a law clerk, Earl Warren.

Still, Miers' background makes her more of a mystery than the usual nominees, no matter how evasive and closed-mouth they might be. We can't know, for example, until she already has the job how she might apply her personal values to her legal decisions. If she believes in the Bible's inerrancy, as does the church to which she has belonged for 20 years, might there be instances when she feels compelled to place man's law behind God's? Will she model herself after her close friend, Texas Supreme Court Justice Nathan Hecht, a strict conservative whose written dissents are often laced with vicious personal attacks on his fellow judges? Will her judgment be colored by her loyalty to Bush and his political views?

"It's not her lack of judicial experience by itself but her lack of experience combined with any other public record," said Vic Amar, professor at Hastings Law School in San Francisco. She wasn't a law professor, a solicitor general, a senator -- as were other justices who vaulted onto the court without being judges first.

"It's wrong to call her a blank slate," Amar said. "It's more accurate to call her a closed slate. It's not that nobody knows what she thinks, but the public doesn't."

Brad Joondeph, who teaches constitutional law at Santa Clara University, isn't as concerned about Miers' inexperience as a judge but her inexperience in grappling with the questions the Supreme Court addresses. New Chief Justice John Roberts, by contrast, litigated cases before the Supreme Court for 20 years.

"No matter how bright she is, she's going to need a couple years to get up to speed," Joondeph said.

I thought about what words might finish the subordinate clause of the first sentence of her obit if she is confirmed.

"Harriet Miers, the Supreme Court justice who ..." -- What? Helped overturn Roe vs. Wade? Was best known for her staunch defense of executive authority? Distinguished herself as a common-sense moderate and consensus-builder on a conservative court? Could not overcome her inexperience and never wrote a single memorable decision?

Conservative Republicans seem most worried about Miers' closed slate of a career. Despite Bush's assurances that he knows Miers' heart, conservatives want to hear from the nominee herself that she will uphold their agenda on abortion and stem cells and gay marriage. But they have set up the congressional confirmation process -- as evidenced by Roberts' hearings -- to allow nominees to evade direct answers to any question.

The irony is, in having to confirm Miers through a useless vetting process they set up themselves, conservatives could be killing their own hopes for a right-wing majority on the Supreme Court.

I volunteer to write the obituary.

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