A Way Out of the Harriet Miers Mess

President Bush made a monumental mistake when he nominated White House Counsel Harriet Miers to replace Justice Sandra Day O'Connor on the U.S. Supreme Court. Miss Miers is an intelligent woman and a top-notch attorney, and she would be extremely well qualified for a position as a District Court judge and well qualified for a Circuit Court judgeship, but she lacks the relevant experience necessary to serve in the highest court in the land. While not having previously served as a judge should not disqualify a Supreme Court nominee, potential Supreme Court justices should at least have pertinent experience and exposure to constitutional issues such as they would gain had the previously served as an Attorney General or Assistant Attorney General (whether state or federal), U.S. Solicitor General or Assistant Solicitor General, head of an Executive Branch office dealing with civil rights or other constitutional issues, or member of the Senate Judiciary Committee. Miss Miers just does not meet the high standard expected of Supreme Court justices. Moreover, what little we know about Miss Miers's views on constitutional issues does not make her seem to be the type of strict constructionist that President Bush promised in both his 2000 and 2004 campaigns to nominate.

While President Bush cannot undo the damage caused by his nomination of Miss Miers to the Supreme Court, that does not mean that there is not a graceful way out in which personal damage is minimized for all parties. I believe that the entire fiasco may be brought to an end if Miss Miers issues the following statement, with President Bush and Circuit Judge Janice Rogers Brown at her side:

"Upon prayerful consideration, I now believe that my level of experience on constitutional issues may not be adequate for a U.S. Supreme Court Justice, and I have thus requested President Bush to withdraw my nomination to the Supreme Court. President Bush has responded that he believed that I would bring a fresh perspective to the federal judiciary, and agreed to remove my nomination to the Supreme Court on one condition: That I would accept nomination to fill a vacancy in the Court of Appeals for the District of Columbia, and to consider a possible Supreme Court nomination after I have gained experience on the judge's side of the bench. After further thoughts and prayers, I have agreed to President Bush's request."

President Bush could then reiterate what Miss Miers said, and introduce Judge Brown, who is indubitably qualified and a proven judicial conservative (as proven by her lengthy service in the Supreme Court of California), as his nominee to the U.S. Supreme Court.

GOP Senators would accept Miss Miers as a nominee to the D.C. Circuit, and would of course accept Judge Brown's nomination to the Supreme Court---given that Judge Brown is a black woman, her nomination would be well received by those who have called for more minorities in the Supreme Court and for a woman to replace Justice O'Connor. Democrat Senators, on the other hand, would probably put up little opposition to Miss Miers's nomination to the Circuit Court, concentrating on the Supreme Court nomination. I think that Democrat Senators would be be disarmed in their fight against Judge Brown because (i) Judge Brown has had plenty of judicial experience, so she will appear to be an anti-Miers, and (ii) they confirmed her to the D.C. Circuit just a few months ago as part of the Gang of 14's deal, and if her nomination wasn't an "extreme circumstance" then, it shouldn't be now.

The one problem with this face-saving move would be that Democrats could argue that Miss Miers's decision to accept nomination to the D.C. Circuit but not to the Supreme Court proves that the standards for the Supreme Court are much higher than for the D.C. Circuit, and that Judge Brown meets the lower standard but not the higher. However, such a position would be illogical, since Miss Miers would have been referring to a difference in the *experience* requirement, and the adequacy of Judge Brown's experience is incontrovertible. And how could a judge be "too conservative" for the Supreme Court if she isn't "too conservative" for the D.C. Circuit?

While I am by no means optimistic that any of the above will occur, I certainly hope that Miss Miers is replaced with a qualified nominee of unquestionable judicial conservatism. The fate of our constitutional liberties may be in play.