|COMMENTARY | winter 2006
After Harriet Miers withdrew her name for the U.S. Supreme Court seat vacated by Associate Justice Sandra Day O’Connor, many questions remained about why her nomination failed. President Bush had first placated those who felt that the seat should be filled by a woman, but when many of the president’s own supporters rejected her appointment, he returned to the kind of nominee who previously had been easily confirmed. At least he had tried to place a woman on the Court, he could tell the American people.
I’m not cynical enough to assume that the president deliberately undermined Miers’ nomination—and I’m not arguing that Miers should have been confirmed or even nominated—but I believe that George Bush’s presentation of Miers reflected his own cynical view of women’s, and perhaps minorities’, qualifications for such a prestigious position. And I’m concerned that the failed Miers nomination will make it that much harder for future women judicial nominees.
It’s certainly possible to criticize Miers’ qualifications for the Supreme Court without resorting to sexism, but I’m suspicious that such criticism was waged so early and vehemently by conservatives, without an opportunity for a public hearing in which Miers could prove her ability. I am also suspicious of her liberal critics who ignore the value of experiences different from their own. I am reminded that the late Supreme Court Justices Thurgood Marshall and, much earlier in our history, Louis Brandeis faced similar criticism about intellectual ability and lack of appropriate legal experience when they were nominated to the Court. Even today, gender, race and religion cloud our assessments of intelligence and competence.
Whatever the criticism of Miers’ nomination, however, I believe that it was predictable given the way the president introduced her to the public. In previously announcing John Roberts’ nomination, President Bush touted him as the gold standard for nominees. Bush declared that he was chosen from “among the most distinguished jurists and attorneys in the country,” and cited his “intellect, experience and temperament.” The presence of Roberts’ wife and two children rounded out the picture of what the president wanted the public to accept as the rarefied image of judicial leadership.
In contrast, President Bush introduced Miers by citing “the past five years” of service to his administration. He gave her few accolades for her outstanding legal mind, her specific legal experiences and her long career. Physically, she appeared as a single woman without family members— as though kin other than a spouse and children are insignificant.
Days after Miers’ withdrawal from the nomination process, President Bush introduced her replacement, Judge Samuel A. Alito Jr., by referring to his “distinguished record, his measured judicial temperaments and his tremendous personal integrity.” Alito, like Roberts, was accompanied by his wife and two children. From all appearances, the president had hastily returned to the kind of nominee that had been successfully confirmed weeks before: a white male with an Ivy League education, federal judicial experience and a traditional family.
When current Republican National Committee Chair Ken Mehlman was asked why the president didn’t choose a Latino or woman candidate, Mehlman replied that the president had chosen a nominee who would represent all people. No one asked why Alito would be more qualified to represent all people than would many women on the bench or in other legal practices. Mehlman’s response suggested that women and Latinos could represent only a segment of the population.
I fear that the failed nomination will be used by the president’s supporters to suggest that, while Bush tried to look for a woman, no woman with proper credentials could be found. In fact, many of the credentials the Bush administration sought in a nominee were denied to women of Miers’ age, and continue to be limited for women today. The focus on federal judicial experience and education in only the top law schools shows a lack of value given to state court judicial experience or legal experience that includes other forms of public service that have been more open to women.
We can only speculate on how Miers’ failed nomination will affect the course that the new Supreme Court will take. We do know that, for now, we have a Court with only one woman and one person of color, and this will likely be its makeup for the foreseeable future.
Anita F. Hill is professor of social policy, law and women’s studies at Brandeis University in Waltham, Mass.