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With the Oct. 3 nomination of White House Counsel Harriet Miers to replace Justice Sandra Day O’Connor, President George W. Bush proposed to appoint a justice who is not a federal appellate judge. Now the Senate must discharge its advice and consent responsibilities by scrutinizing Miers, especially the benefits and disadvantages of approving someone who is a practicing lawyer. Careful evaluation is particularly important, as O’Connor was the swing vote on numerous crucial issues, Miers could tip the court’s delicate balance, and all the current justices were federal judges when elevated. Because Senate Judiciary Committee leaders on Oct. 19 found her questionnaire responses inadequate and requested resubmission, Miers’ confirmation hearings may prove difficult. Selecting nonjudges is a venerable tradition. Until the last third of the 20th century, nominees came from many sources. For example, President Franklin D. Roosevelt picked Harvard Law Professor Felix Frankfurter and President Dwight D. Eisenhower named California Governor Earl Warren. Only in the 1960s did appeals courts furnish more nominees, when presidents found this experience valuable partly because it illuminated candidates’ abilities and perspectives. The idea of choosing a nonjudge surfaced in 2005 with rumors about justices’ resignations. Some high court members believe that the court should be diversified. The notion was reinforced in the first search for O’Connor’s successor, when Bush repeatedly said he was considering nonjudges. Senators Arlen Specter, R-Pa., the Judiciary Committee chairman; Patrick Leahy, D-Vt., the ranking minority member; and Harry Reid, D-Nev., the minority leader, urged Bush to name a nonjudge then and in the renewed search. On Oct. 4, Bush remarked: “[O]ne of the most interesting ideas” I heard when consulting senators “was, ‘why don’t you pick somebody who hasn’t been a judge?’” Thus, he nominated Miers, recognizing that she “will bring not only expertise, but a fresh approach.” However, Miers was a less well-known public figure before her nomination than Frankfurter and Warren. In theory, Senate confirmation of a nominee who has been a practitioner could yield numerous advantages. A significant benefit would be diversity of experience, in light of the court’s present makeup. For instance, some commentators attribute O’Connor’s practical, case-by-case approach and forceful support for federalism to her experience as the Arizona Senate majority leader. Lawyers who have not been appeals court judges also have diverse life experiences and views. Those who work in the rarefied atmosphere of the federal “judicial monastery” can lose touch with ordinary people and acquire inflated views of themselves. However, little is known about Miers’ views on many basic legal issues. Thus, senators will likely probe carefully Miers’ service not only in the White House advising on legal issues that the executive faces, but also with the Texas State Lottery Commission and the Dallas City Council addressing controversial political questions, as president of the Texas and Dallas bars, and as co-managing partner of a major law firm representing corporations. Detriments of confirmation There may be detriments in confirming a nonjudge, and in particular this nonjudge. The court might forfeit the advantages of previous judicial service. The federal appeals courts are now effectively the courts of last resort in their regions. Thus, appellate judges secure helpful experience in resolving the very issues the justices decide, which encompass controversial matters such as reproductive choice, religious freedom, and the interpretation, application and constitutionality of legislation. Appellate judges also secure useful expertise in major relevant fields, including criminal procedure and federal jurisdiction, and like justices, they read briefs, conduct oral arguments and write opinions. Miers obviously lacks this experience. Moreover, she has been less forthcoming about her knowledge of, and opinions about, core constitutional issues so far than senators would like. In fact, Miers disavowed making a statement to Specter that she considered Griswold v. Connecticut a valid precedent after he reported that she did. Now that Bush has selected a nonjudge to replace O’Connor, the Senate must carefully review the benefits and disadvantages of confirming a nominee without federal appellate service. Senators will also scrutinize whether Miers’ experiences as a practicing lawyer have prepared her to resolve the issues that she will face. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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