It seemed plausible. Like Ms. Miers, Carswell was clearly a second-rater, but at least he had served for 10 years as a U.S. district judge and for a few months on the 5th Circuit. He had shown no signs of brilliance on the bench. Nonetheless, Sen. Roman Hruska of Nebraska, charged with shepherding the nomination, did his best to win his colleagues' favor.
"Even if he is mediocre," said the senator, "there are lots of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't all have Brandeises, Cardozos and Frankfurters and stuff like that there."
To draw the curtain, it remains to be said that in April 1970 the Senate voted 51-45 to reject the nomination. Carswell promptly retired from the bench, ran unsuccessfully for the Senate, and returned to Tallahassee to practice law. President Nixon gave up on nominees from the 5th Circuit and turned at last to Harry Blackmun of Minnesota. For the rest of his life Blackmun endured the honor of being Old No. 3.
Getting back to the failed nomination of Harriet Miers to succeed Justice Sandra Day O'Connor. She would have gone before the Senate's Judiciary Committee with less judicial experience than Carswell long ago — to wit, with none at all. Bench time would not have been her problem: She filled out the committee's 57-page questionnaire, and when she was done, her answers were in a class with Gertrude Stein's summation of Oakland, Calif.: "There is no there there."
Perhaps she might have survived direct testimony next month, but considering the lifetime office at stake, she would have been feeding the hungry senators a cup of no-cal gruel. Asked to describe the 10 "most significant litigated matters which you personally handled," she dredged up 10 cases. On this observer's scale of 10, the legal significance of her cases ranged from roughly 1.2 to possibly 1.3. She listed 17 examples of her "community leadership," but could not give the dates for half of them.
The Senate committee asked for a list of the nominee's "books, articles, reports, letters to the editor, or other written or edited material." She responded with three pages of citations, almost all of them to her official writings as president of the Texas and Dallas Bar Associations. Asked about her speeches, she provided a list of 61 talks to various groups since 1992. Some of these speeches were substantive — for example, a speech to the Heritage Foundation in 2002 on protecting the powers of the executive branch. Most of them were at the level of "Economic Opportunities in the City of Dallas, Texas."
She made a plausible case for her varied experience: "For example, I have been called to a deathbed to make sure the individual had a valid, enforceable will; I have represented parents in contentious custody battles; I have represented a woman facing deportation to a country where she and her son would be ostracized ..." In her current role as White House counsel, where she assists in appraising judicial candidates, she has confirmed her view "that judges must limit their role to interpreting and applying the law, leaving policymaking and legislating to others."
In the concluding pages of her committee questionnaire, Ms. Miers eloquently expressed her opposition to "judicial activism." She professed a "limited" role for the judiciary in the American scheme of government. Her long legal practice "has taught me the importance of stability in the law."
These were surely admirable sentiments. Regrettably, her written responses contained no hint of legal or literary skills that rise above the level of mediocrity. Once more unto the breach, dear friends!
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
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