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Miers' experience, education would set her apart from other justices

WASHINGTON—Little is known about Harriet Miers' judicial approach or even her knowledge of constitutional law, but one thing is clear about President Bush's pick to replace Justice Sandra Day O'Connor: She is the ultimate diversity pick for the court.

That's not just because Miers is a woman. She's also the first nominee since William H. Rehnquist, in 1972, to lack judicial experience. However, she held public office on the Dallas City Council.

And she would be the only justice who doesn't hold a degree from an elite, highly ranked university. Miers has undergraduate and law degrees from Southern Methodist University, while seven of the eight other justices have at least one degree from Harvard or Yale; John Paul Stevens attended the University of Chicago and Northwestern University.

Those distinctions could give Miers a very different—and some say welcome—outlook.

"On the one hand, I think it's important to find out how well she might be able to handle the substance of constitutional law, and her depth of understanding of the law in general," said Temple University law professor Mark Rahdert, a constitutional law expert and a former clerk for Justice Harry Blackmun. "That kind of inquiry takes on a greater and more important dimension when you have someone who hasn't sat on the bench for a long time."

But Rahdert added that the court often is enriched by justices who bring different life experiences to the bench.

"People can bring many different talents to the court," he said. "And she has some potentially great ones on her resume. I don't think the court should be limited to people with extensive judicial experience. There's a value to getting people from outside the Beltway and from very good law schools that don't happen to be Harvard or Yale."

Though Miers' nomination is atypical of recent high-court picks, it harkens back to a time when presidents regularly chose high-court nominees from a much broader tableau of candidates.

Earl Warren, for example, was one of the court's most influential figures, but he was never a judge before he was named chief justice in 1954. Similarly, justices such as Felix Frankfurter, Robert Jackson and Lewis Powell were highly regarded members of the court who came from nonjudicial walks of life.

Richard Stengel, the president and CEO of the National Constitution Center in Philadelphia, said one of the upsides of justices with little or no judicial experience is that their approach tends to be understandable for ordinary people.

"They tend to look more at the ideal of what the law represents, and figure out how to get there instead of looking strictly at what the law says and sticking to it," Stengel said. "In a weird way, I think people are more sympathetic to that approach. They want someone making decisions for them who isn't just sitting around parsing the law."

O'Connor, who'd been a judge but also had held political office for many years before she reached the high court, was both praised and condemned for taking just that approach in many cases.

Supporters hailed her pragmatic take on many cases as reflective of her real-world experience. Critics called it pliable and dangerously susceptible to overstepping the proper role of a judge.

In some ways, Rahdert said, it makes perfect sense for Bush to choose Miers to replace O'Connor.

"O'Connor was the one justice who'd been elected to public office," he said. "Miers will be able to draw on that same experience."

Bush's close relationship with Miers also harkens back to several other high-court picks—some that worked out well and others that were disastrous.

Franklin Roosevelt regularly chose close associates to sit on the court, but none turned out to be an embarrassment. John F. Kennedy chose Byron White, a friend so close he used to participate in Kennedy family football games.

But three picks by Harry Truman rank among court watchers' worst, at least in the 20th century. Sherman Minton, Harold Burton and Chief Justice Fred Vinson all were close associates of Truman, but none left a favorable mark on the high court. The 19th century is replete with political cronies who had undistinguished careers on the court.

"The truth is that if you compare Miers, just on paper, to some of the political cronies who have wound up on the court, her qualifications put her square in the middle," said court historian David Garrow. "Thirty or 35 years ago, no one would have thought there was anything out of the ordinary about it."

But Garrow said Miers' nomination, coming on the heels of John Roberts' confirmation, makes her seem less impressive.

"She's following a 24-karat All Star onto the court," Garrow said, referring to Roberts' stellar credentials. "By comparison, she looks inescapably unqualified."

The unusual circumstances of Miers' nomination will make for an equally unusual confirmation process, experts agree. Rather than sifting through her work to divine her views or her judicial approach, senators will need to focus on the basics.

The high court's work is precise and exacting, focusing not only on constitutional law but also on the administration of federal law in general. The justices frequently confront cases that involve arcane questions of anti-trust, patent, tax and trademark law.

Miers spent much of her career in private practice representing commercial clients but wasn't an appellate attorney who developed expertise in the areas that come before the court.

"This may be the ultimate nomination in which everything turns on her performance at the hearing," Garrow said. "And it's not a question about what she says about the right to privacy or any specific issue. It's whether she demonstrates the necessary candlepower. To some extent, the burden will be on her to prove that she is at least within intellectual shouting distance of Roberts."

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(c) 2005, Knight Ridder/Tribune Information Services.

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