Miers versus Roberts
By Beldar on Law
I've read several comments elsewhere to the effect that there's simply "no comparison" between Supreme Court Associate Justice-nominee Harriet Miers and newly-confirmed Chief Justice John G. Roberts, Jr. — the stated or unstated inference being that he "blows her out of the water" in every respect.
But actually, a few comparisons do occur to me that I'd like to share. (As always, I invite my readers to fact-check me and correct in the comments any errors I've made.)
- Harriet Miers now holds the office (Counsel to the POTUS) that Fred Fielding held in the Reagan Administration. John Roberts was Fred Fielding's subordinate. Were John Roberts to return to his first job in government, he'd now be Harriet Miers' subordinate. The position to which, during the Reagan Administration, John Roberts addressed all those eloquent memoranda on matters of policy — with which many skeptics of his nomination were justifiably impressed — is the same position that Harriet Miers now occupies.
- Counsel to the POTUS has responsibilities distinct from — and on some topics, equal to or even greater than — those of the Attorney General or the Solicitor General. Counsel to the POTUS reports directly to the President, has no superior but him, and need not obtain the Senate's advice and consent before taking office. John Roberts' top government job before he was confirmed as Chief Justice was as Deputy Solicitor General, an impressive and responsible (but still subordinate) position.
- Harriet Miers has now successfully vetted a Chief Justice of the United States and many other federal judicial nominees. John Roberts helped prepare some nominees for their Senate testimony in the Reagan Administration, but had little or no role in their selection.
- Harriet Miers' experience at the trial court level in complicated civil litigation covers many years, and every pretrial, trial, and post-trial aspect of a wide variety and number of cases. With comparatively fewer years in private practice, John Roberts has absolutely no such trial court experience — he's never picked a jury, never tried a case, never even taken a deposition. (And now that he's Chief Justice, he almost certainly never will.)
- Harriet Miers hasn't argued in the United States Supreme Court, but she's handled several appeals in the lower state and federal courts. It's fair to say she's done more of what Roberts mainly did in practice than he's done of what she mainly did. (If you can follow that grammar.)
- Harriet Miers has experience inside the executive branches of both the federal government and one of the largest and most populous states. John Roberts' executive branch experience is exclusively federal.
- Harriet Miers has likewise practiced extensively in both state and federal courts. Almost John Roberts' entire practice has been in federal court (albeit sometimes dealing with state-law issues there).
- Harriet Miers has run for and served in public office. John Roberts hasn't.
- John Roberts' service to the legal profession through voluntary and/or elected positions in bar organizations and the like has been significant and commendable, but vastly less than Harriet Miers' at either a local, state, or national level. Indeed, her service to the legal profession has been superior not only to John Roberts', but to that of every other SCOTUS nominee since the late Justice Lewis F. Powell (one of whose key qualifications during his confirmation was asserted to be his service as President of the American Bar Association, before it began to take partisan positions on political subjects).
- Harriet Miers has met a payroll, had responsibility for over 1000 lawyers and staff in several cities, negotiated and implemented a major law firm merger, and managed the egos of a 400+ lawyer firm. John Roberts has been a partner in, but not the managing partner of, another major law firm. He had significant responsibility, but for much of his time there, he was not even the head of his small and narrowly-focused department.
- John Roberts is energetic and hardworking, but still has a family life (wife and two small children), which may be a source both of strength and occasional distraction. Harriet Miers, by all accounts, works as long or longer an average day despite being older, and has sacrificed the opportunity for husband and children to her career. Both, happily (and as they would no doubt have it), can be predicted to work hard for their country in some capacity for, in all probability, the rest of their lives.
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My regular readers will recognize that I'm not knocking John Roberts in these comparisons. I think he is absolutely fabulous, with other qualities that vastly overcome any gaps in his background and experience. But as it happens — and I don't think this is a coincidence — Harriet Miers' experience fills some of those gaps quite handily, and vice versa. I emphatically do not agree that Chief Justice Roberts' credentials, terrific though they be, are the only sort of credentials that can qualify a person for service on the Supreme Court. And I suspect he'd be among the first to agree with that proposition.
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