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President George W. Bush virtually guaranteed last week that his nominee, Harriet Miers, will be a rock-solid conservative vote on the Supreme Court. But even assuming that is true — and a surprisingly large number of conservatives doubt that it is — what else will Miers be? Supreme Court justices are more than just a vote, so as the debate over Miers’ qualifications continues into a second week, these broader, less tangible questions may garner more attention. To begin, what kind of colleague would she be? Without the judicial experience or appellate expertise shared by all her fellow justices, can she shape decisions with persuasiveness and impeccable reasoning, and will she be more prone than others to follow her personal ideology, whatever it turns out to be? Tethered by Bush’s promise of an unchanging judicial philosophy, can her tenure blossom into a resonant judicial career? And with unfamiliar legal issues facing her the moment she is sworn in, will she be able to stand up to the likes of Justices Antonin Scalia and Stephen Breyer and a platoon of Ivy League-trained law clerks? “It’s not enough to pick a result, though that’s important,” says University of Texas Law School professor Douglas Laycock, a longtime scholar of the Court’s church-state cases. “It’s the quality of thinking and analysis that really matter. You have to have judgment that translates into decisions that lower courts can follow and make sense of.” Laycock is reserving judgment on Miers, but for now thinks she seems “grossly underprepared” for the job she faces. University of Chicago Law School professor Geoffrey Stone posed a similar concern in a Chicago Tribune column last week: “The goal (of a justice) is not just to vote, but to bring a high level of wisdom, experience, principle and intellect to the process of judging. It is no place for rank amateurs.” And Stone made it clear he thinks Miers is a rank amateur, asserting that she is far less qualified even than Richard Nixon nominee G. Harrold Carswell, who was rejected ignominiously by the Senate in 1970. Bruce Fein of the Lichfield Group in Washington is more conservative than either Laycock or Stone, but he shares their concern — and takes it one step further. A key warrior in the conservative battle for the judiciary for the past 25 years, Fein thinks Miers is so dismally unqualified that she won’t even vote the way Bush wants. “She’s an inkblot — the last person who is going to look at Roe v. Wade and say, ‘the reasoning is flawed,’ and tell us why,” says Fein. “She’ll just follow the path of every justice in the last 25 years who comes to the bench without a developed philosophy and ends up in the liberal camp. People whose intellect is as thin and dubious as hers will be too intellectually timid to challenge orthodoxy.” The right’s long campaign to change the judiciary is at an end, says Fein — even if Bush has more vacancies to fill during the rest of his presidency. By nominating Miers, Fein says, “he came to the Rubicon and flinched.” Miers’ defenders find these criticisms outrageous and insist that she is every bit as capable of leading her colleagues in the direction she wants them to go as anyone else. As a business lawyer in Dallas, a veteran of the American Bar Association’s byzantine ways and a high-level White House aide, Miers demonstrated she has all the backbone and persuasive power she needs, they say. “These comments I have been hearing are appalling,” says Sheila Hollis, a partner at Duane Morris in Washington who has known Miers for years. “It’s a real insult to women in the law. It’s sexist.” Miers “holds her own” in any setting she is in, says Hollis, who worked with her on ABA committees and has kept up with her through her White House years. “She will have no trouble dealing with any legal issue that comes to her. She is thoughtful, empathetic and solid as the rock of Gibraltar.” Miers is a hard worker who will do what it takes to master her new job, Hollis adds. “She never eats lunch out. She works so darn hard, I’m not even sure she bothers to have lunch at her desk.” But no matter how diligent her work habits, it takes any new justice time to get acclimated. The late Justice Harry Blackmun, who had 10 years of experience on a federal appeals court, said it took him five years to feel comfortable at the high court. For different reasons, Justice Clarence Thomas also experienced difficulty adjusting. His controversial confirmation process made his arrival awkward and left some justices less welcoming than usual. Joining the nation’s highest court was daunting for Justice David Souter as well, says professor Tinsley Yarbrough, author of a new biography of Souter. Though Souter had judicial experience in New Hampshire and, briefly, on the 1st U.S. Circuit Court of Appeals, he was not part of the Washington or Supreme Court legal scene. Souter likened his first weeks on the Court to “walking through a tidal wave,” facing an overwhelming load of cases in an unfamiliar and intimidating place. By the end of Souter’s first term, complaints were heard from other chambers that his work output was painfully slow. With Souter, though, Yarbrough says his slow pace was more a function of his computer-averse work habits than anything else. But Miers, who is said to be a fastidious worker, is another matter. “From what we have learned so far, there is nothing in Harriet Miers’ background to prepare her for this job,” says Yarbrough. “I don’t want to denigrate her credentials, but she has a lot of catching up to do.” IN CAPTIVITY And that is a vulnerable position to be in, says Court historian David Garrow, now a professor at Cambridge University. “My great fear is that any new justice coming to the Court with no significant personal experience either in terms of constitutional analysis or federal statutory issues might be extremely susceptible to following the lead of a forceful and sure-minded colleague,” he says. Could he be referring to Scalia? “That is, of course, the name that inescapably leaps to mind.” Miers also could be a captive of her law clerks, Garrow says, to a greater degree than other justices. “A federally inexperienced justice might have to rely more extensively on clerks who have had the benefit of circuit court clerkships.” Law clerks now routinely write justices’ rough first drafts. But Garrow’s fears are probably overstated, says Yarbrough, a professor at East Carolina University. “If she senses that her colleagues or her clerks are doing that, she will probably push back.” Yarbrough also thinks no one should rule out the possibility that Miers could change during her tenure, as many other justices have — even though Bush repeatedly said she would not at an Oct. 4 press conference. Thomas once famously said, “I ain’t evolving,” and Harvard Law School professor Laurence Tribe has argued that the stereotype of justices changing is largely a myth. But Earl Warren, William Brennan Jr. and Harry Blackmun were all Republican appointees who surprised their presidents, and David Souter — whom Bush may have had in mind when he spoke last week — veered left soon after he joined the Court. Even the late Chief Justice William Rehnquist changed, softening his stand on Miranda v. Arizona, for example. After trying to determine where Miers stands in the first place, Republicans and Democrats alike may try to determine whether she has that same capacity to surprise. With Miers’ reputation for micromanaging and a reluctance to make decisions, the evidence is mixed as she heads toward her confirmation hearings. But supporters say that once Miers takes a position, she fights for it and is not easily swayed. “She is a very genteel lady, but she is one of the toughest people I know,” says Martha Barnett, a partner at Holland & Knight and a former president of the American Bar Association. “She has intellectual strength and great integrity.” Before she became president of the ABA, in 2000, Barnett says she wanted to appoint Miers to head the association’s Standing Committee on the Federal Judiciary, which rates judicial nominees. “Then the ‘other’ president hired her for a better job,” she jokes. So will Scalia eat Miers alive at Court conferences? Not a chance, says Barnett. “When dinner is over, it won’t be her bones on the table.”

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