Is Harriet Miers Brennan, or Blackmun?

“Servant Disposition”, Skilled Manipulator, or anxious and scared nonentity?

Harriet Miers was not my candidate for the open SCOTUS seat; I threw the same kind of hissy-fit upon hearing about it as did many of my fellow True Believers. However, after reading all the fulminating outrage coming from many of them, it almost seems as though it is time to take a shower and move on. The outrage is a bit over-the-top, and seems to have as much to do with disappointment over missing out on a good cathartic fight as it does with any actual evidence about the nomination.

There is a lot of the current furious commentary, larded as it is with comments about the highway bill, Katrina-recovery spending, the steel tariffs, failure to veto appropriations bills, signing BCRA, and (drum roll) the ineffably evil act of keeping a primary campaign promise to add prescription drug coverage to Medicare (the latter shows up in virtually every post). Based on what we read, the desire for a “good cathartic fight” seems to be as much longing for a fight with Bush as with Harry Reid.

One factor that is never addressed, as the commentators slog down the list of judicial superstars they wanted to put into O’Connor’s chair, is that of roles on an effective team. Smart people, from athletic coaches and managers, to corporate gurus, to Saint Paul in the 12th chapter of first Corinthians (“14For the body is not one member, but many. 15If the foot would say, “Because I’m not the hand, I’m not part of the body,” it is not therefore not part of the body. 16If the ear would say, “Because I’m not the eye, I’m not part of the body,” it’s not therefore not part of the body. 17If the whole body were an eye, where would the hearing be? If the whole were hearing, where would the smelling be? 18But now God has set the members, each one of them, in the body, just as he desired. 19If they were all one member, where would the body be? 20But now they are many members, but one body. 21The eye can’t tell the hand, “I have no need for you,” or again the head to the feet, “I have no need for you.”), have discovered that an organization that pays attention to a range of roles and responsibilities and fills the essential holes usually accomplishes more than one exclusively staffed by superstars. This is emphatically not an argument for Hruskaism, the famed paean to mediocrity descended into by the late Nebraska senator while desperately trying to support the Supreme Court nomination of the unlamented G. Harrold Carswell for associate justice.

The most effective working group- which in this case means a center-right caucus on the US Supreme Court- boasts a variety of skills to fill a variety of essential roles and responsibilities. Thus far this debate over Miers has exclusively focused on two issues: 1) where does she stand on various Constitutional law positions, and 2) how can she be competent to deal with those issues given that she is not known as a Constitutional scholar in the way that law professors and appellate court judges are. The debate might be enhanced if we stop and look at a couple of characteristics of the Court and of those persons who have been most effective, and thus left a lasting legacy (for better or worse) in their service on the Court.

When I was young, I recall a lot of angry talk about the Supreme Court by conservative people, and the object of the enmity was Justice William O. Douglas. This ire at Douglas actually midwifed a lot of half-baked, but sort of serious proposals to “Impeach Douglas!” He was the target of the barbs, and the reputed source of all the Godless and Immoral rulings to protect communists, outlaw Bible-reading in schools, and the like. Interestingly, he retired in 1975, and the Court didn’t make any sudden correction toward more sound jurisprudence. And the liberal legacy of the Court didn’t start in 1939 when he took his seat on the bench. Why?

Because these things require teams, not just visible superstars- and superstars are important, provided that they can operate in a group dynamic without being narcissistically counterproductive. If you are uncertain about this, think of a football team with 11 superstar defensive ends. They will still be outrun by the fast tailbacks. Any real team needs to field all the different positions. To the extent that the luminously intelligent and articulate Justice Scalia is successful in shifting the Court in his direction on some matter, it was likely at least as much because the late CJ Rehnquist had quietly maneuvered such a result by taking care of a lot of little things in the background as it was because Justice Scalia debated the issue in the conference with rapier-like logic.

Marvin Olasky has been widely ridiculed for approvingly posting a statement at the World magazine blog to the effect that Miers’ “servant mentality” would serve the country, and the Right, well at the Supreme Court: “According to a source in her Dallas church quoted by Marvin Olasky, Harriet Miers is someone who taught children in Sunday School, made coffee, brought donuts: ‘Nothing she’s asked to do in church is beneath her.”

The question that should be asked, as we all fulminate over Michael McConnell and Michael Luttig, is whether the conservative wing of the Court would benefit from adding someone who is less debater and more water-carrier.

The best water carrier in Court history was probably William Brennan, whose 34 year tenure fell just short of that of his then more notorious colleague. I doubt that there is a Court historian around today who would not agree that the unabashed liberal who had the most impact on the Warren Court and its successors was the previously little-known, certainly not particularly impressive state supreme court justice from New Jersey. As David Yalof, UConn political science professor and expert on Supreme Court nominations put it in the Christian Science Monitor ( “No one could possibly have thought in 1956 that William Brennan was on the top 100 list of people to become a justice of the Supreme Court,” Yalof says. “At the time of his appointment, William Brennan…… was far and away not considered the most reputable justice on his own court. “Was he qualified?”

Tony Mauro, in Legal Times ( explains why the most effective style is not necessarily brilliant argument: “’They don’t argue cases at conference,’ says one former Court clerk. ‘Kennedy and Scalia would say early on, ‘Wait, we need to discuss this,’ but Rehnquist would tell them, ‘This isn’t a debate society”. Mauro went on to explain why Brennan had been effective with his personal relationship style, while Chief Justice Roberts’ formidable skills of debate may not necessarily be the defining issue compared with his pleasant demeanor. The same factor may apply to Harriet Miers based on the roles she has had to play over the last 20 years in many situations infused with challenging group dynamics.

The best exposition on this phenomenon with regard to the Court and the way Brennan worked to move the agenda without flash or visibility is Bob Woodward’s 1979 book about the Burger Court, The Brethren. More than any other treatment, that narrative shows how Brennan’s causes were moved forward- through Brennan’s tireless, behind-the-scenes maneuvering and personal lobbying. The most interesting case in point was the cultivation and apostasy of Harry Blackmun. Just take the book, and in the index under “Blackmun”, go to “and Brennan”, and you will see how the senior Justice spotted Blackmun from the beginning as a timid person who hated to be the person on whom everything rested. He took his chair at the end of the term, and dreaded having to make the decisions about certiorari on a large pile of cases that had three justices already signed on.

Brennan saw Blackmun as one whose insecurity could be manipulated, and he set his plans to do so. The process by which that occurred, the significant shift by one insecure and frightened justice away from his philosophical roots, and his long time friend (Chief Justice Warren Burger, friend since childhood, wedding participant, and the reason he had been nominated for the Court at all) toward media lionization and the creative exploration and discovery of privacy penumbras, is an fascinating tale that may offer a very different take on the current situation.

The single most over-invoked point of the current discussions of Miers has been the solemn recitation of the mysterious ways of constitutional law. National Review’s Jonah Goldberg made an illustrative comment that appears to reflect that common misconception ( “Here’s the trap. Miers by all accounts is tireless at doing her homework. If she does show up at the hearings and can actually duke it out over the fineries of constitutional jurisprudence, the Democrats will have no place to go (and, I might add, neither will many conservative critics). This might mean Miers is in for the Mother-of-All-Cramming-Sessions.”

This is a common misconception, and very popular in print these days. The truth is, on those constitutional law subjects, Miers will need about one day, if any, of brush-up coaching and reminders from any competent professor; I suspect that Mr. Hewitt would be happy to help. Any first year law student can go in front of Senator Biden and quote exhaustively from “Griswold” and “Doe-Bolton” about privacy, “Lopez” and “Morrison” about the Commerce clause, “New York” and “Prinz” on federalism, and so on.

The key is not the debate- every party who ever took a Con Law course knows the issues in those cases like the ingrown nail on his left big toe. The deciding point is not nuances of Article II, it is persuading an undecided someone else, for reasons that often have little to do with legal matters, to go along with your position on a particular case. That happens more often through personal interplay that has little to do with the Constitutional mysteries.

I seriously doubt that Justice Brennan won very many battles by applying superior, as Charles Krauthammer put it, “constitutional jurisprudence …. exercise of intellect steeped in scholarship.”

In Blackmun’s case, it had more to do with an old friend, Burger, who, as portrayed in the book, was a bit self-absorbed and took Blackmun for granted as an ally, and Brennan, who saw a chance to use his personal skills to pump up self-esteem of the insecure man and win a permanent and ever-more-reliable ally. Brennan didn’t care who got the ink or wrote the opinion- just the so he got the vote for the precedent he cared about. Woodward’s description of the patient seduction of Blackmun, on Roe v Wade, to move from trusting the Mayo doctors’ medical judgement regarding abortion, to writing an opinion that effectively authorized legal infanticide, is classic marionette manipulation. You don’t have to like the result to admire the craftsmanship. Like Reagan, Brennan cared more about results than about credit. Burger was the opposite, an image person who loved the cameras.

So, what does that suggest we should watch for when Justice Miers takes her seat on the Bench? Will she be a Brennan- a stolid behind the scenes rudder helping to steer a large ship in her preferred direction? Or a Blackmun- a nervous and uncertain cipher with regard to the causes near and dear to the hearts of President Bush’s “base”, currently in near revolt? A team player on a good team, as she has been for her life thus far in the law? A team-focused provider of synergy and steady progress rather than a mercurial leadership?

Her nature and style have been described both ways by people alleged to be “in the know”. And she could turn out to emulate either predecessor, and still make conservatives very happy if she allies with the right mentors on the Court. The inference is actually high that she will gravitate toward those with whom she is comfortable, most conspicuously, the new Chief Justice. If he is the person he is reputed to be, that is good news for the Right. And, after the justice’s philosophy in an area of appellate law is established, the leg work is done by clerks, and if she selects clerks the way she helped to select appeals court judges, the President’s base has no cause for complaint.

On the other hand, David Frum has described Miers as “a taut, nervous, anxious personality”, likely to succumb to the seductive Washington leftward temptation and abandon her roots, whatever they are (, seeking approval. Knowing nothing whatever firsthand, and having infinite respect for Frum, it still doesn’t appear to be obvious that she is a Blackmun. In fact, it would appear most unlikely that she would tend to work closely with Justice Breyer or Stevens as her “Brennan”, if indeed she subconsciously seeks a mentor on the Court in the manner of Blackmun.

If she is the person President Bush appears to believe she is, she may well herself be the next Brennan, with views that are more popular with conservatives.

We shall all see.


One Response to “Is Harriet Miers Brennan, or Blackmun?”

  1. Johnny Canuck Says:

    Now you’ve got me thinking. I really enjoy this blog, I’ll definitely pop around more often, keep it up!

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