Courts

Brett Kavanaugh Has Taught Me That Harriet Miers Got A Raw Deal

It's clear now that if only she had a penis, she'd be on the Supreme Court

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Harriet Miers
(MANDEL NGAN/AFP/Getty Images)

White male elites, and their white women enablers, are close to putting a partisan hack who has been credibly accused of attempted rape onto the Supreme Court. It should be a “teachable moment” for everybody. We’re seeing the hypocrisy and cowardice of the Republican party on full display. We’re seeing the weakness of opposition resistance. We’re seeing how callously and viciously this country treats women.

And, for my part, I’m seeing the ultimate failure of elite institutions. Sure, now the ABA, and Yale, and the Washington Post, and 2400+ law professors, and Ben freaking Wittes are coming out strongly against Brett Kavanaugh. Now the only people in Kavanaugh’s corner are the Federalist Society, rape apologists, and #MAGA assholes. But Kavanaugh enjoyed broad, elite support for most of the confirmation process, and for most of his gross life. Very soon, after Kavanaugh is allowed to mix his poison with the Supreme Court, many elites in legal and journalistic circles will go back to treating Kavanaugh as just another Supreme Court Justice.

I’ve seen it happen before. I’ve seen how people deal with Donald Trump. There’s intense resistance to President Trump at the grassroots level, but journalists still go to Sarah Huckabee Sanders’s lying press conferences whenever she lowers herself to having them, and dutifully republish her lies. Most lawyers still act like the Department of Justice is a legitimate institution, even as it’s being run by an inveterate racist. Elites, it would seem, are powerless to stand up to power if that power has the proper title. Every lawyer can kick the crap out of Michael Cohen. Jeff Sessions is still treated like he commands respect.

I can see the elite failures of the Trump era plainly. But, I’m black. The failures of the white and privileged are kind of always obvious to me, even as I go to their schools and live in their world. Unfortunately, I also have a penis. And I’m forced to admit that the dangly appendage probably makes my brain a little bit slow to recognize systemic denigration of women built into our elite power structures.

To me, the #MeToo era has produced two types of men: The men who are afraid that their complicity or misdeeds will come back to haunt them, and the men who are have reckoned with their complicity or misdeeds and decided to be better humans. I count myself among the latter, most guys are cowering in the former camp.

Reckoning requires admitting where you were wrong, and that’s why Harriet Miers’s name has been buzzing in my brain, this week. For those playing along at home, Harriet Miers was George W. Bush’s second choice to replace the retiring Sandra Day O’Connor. Miers was a lawyer in the Bush White House, and a friend of the President. When Sandra Day O’Connor announced her retirement from the Supreme Court in July, 2005, Bush picked Miers to head up the search committee for a replacement.

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Miers and Bush settled on John Roberts, but when William Rhenquist died suddenly two and a half weeks later, Bush put forth Roberts as the replacement for the Chief Justice. He eventually settled on Miers to replace O’Connor. It’s a family trait. Bush 41 picked an African-American to replace the first African-American Justice when Thurgood Marshall retired, and was able to get in a far more conservative choice because of it. While Roberts had the markings of “centrism,” Miers was an arch-conservative woman, tabbed to replace the first woman on the Supreme Court.

In 2005, the Republicans held a slim, one-vote majority in the United States Senate.

Miers was quickly branded as “unqualified.” She was loudly panned by liberal organizations. But, most importantly, she was quietly panned by conservative organizations as well. Both Senate Judiciary chairman Arlen Specter, and ranking member Pat Leahy, were unsatisfied with Miers.

Miers did not come from Yale or Harvard Law school. She got her law degree from SMU. Miers was not an appellate circuit judge. She was a largely unknown Texas litigator, obscure even in the Bush White House, until she was tapped for the Supreme Court.

Her main qualification was that she was a Bush crony. Given that she was picked to replace the woman who helped hand Bush the presidency in Bush v. Gore, she seemed like a choice that would further diminish the legitimacy of the Supreme Court, according to forces on both the left and the right.

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Miers twisted in the wind for about three months. She never got a confirmation hearing. Bush withdrew her nomination in October, replacing her Samuel Alito. Alito was a Yale Law grad, and a Third Circuit judge. He was confirmed with 58 votes in the Senate, and has gone on to become one of the most anti-woman judges on the Supreme Court.

There is no version of events under which I would have supported a pro-life Bush buddy for the Supreme Court, just as were no version of events under which I supported Sam Alito. In this brief interregnum between Antonin Scalia’s death and Brett Kavanaugh’s elevation, Alito has been my pick for the very worst Justice on the Supreme Court: he is partisan to the core and his decisions manifest actual animus towards women and minorities. I warned he would be like that at the time he was nominated, though I had a real job back and nobody was reading my emails to friends.

Miers, likely, would have been just as bad. But I remember that when she was replaced I thought “Well, at least he’s a real Supreme Court Justice, not some person Bush met at the Church bake-sale.”

Now I think that I was wrong. Not about her jurisprudence, but about my distaste for her “qualifications.” Looking at it through the lens of Kavanaugh, Harriet Miers clears the very low bar of having never been accused of trying to rape somebody. She also didn’t go on Fox News or write self-serving op-eds in the Wall Street Journal, trying to drum up Republican-base support for her nomination. I don’t find any accusations that she lied under oath to Congress. I don’t find any accusations that she drunkenly got into a bar fight, or grew aggressive after losing a game of dice.

Miers wasn’t classically trained in all of the Court-speak the Republicans use for crushing the rights of vulnerable people. She was pro-life! She didn’t have the subtlety with it designed to give a Susan Collins-type plausible deniability when she talks to voters. That doesn’t mean she was stupid or uneducated, it just meant that she hand’t spent 30 years palling around with other Ivy League Republicans learning how to dog-whistle fascism in a way most people can’t hear. Trump would have loved her.

Moreover, I realize now that if Bush had nominated exactly the same type of candidate, but the candidate had been a man, he would have sailed through confirmation with little Republican opposition. Lindsey Graham asked the Bush White House to turn over documents about Harriet Miers position that were protected by executive privilege. But Lindsey Graham did not demand those same documents be turned over about Kavanaugh, who also worked in the Bush White House, even though Bush himself waived executive privilege regarding them. Lindsey Graham is a sneering hypocrite, and this is just another example. But men are sneering hypocrites when it comes to recognizing the fundamental equality of women, and Miers was another victim of that hypocrisy, odious though her jurisprudence would have likely been.

Harriet Miers had neither the pedigree nor the penis to get on the Supreme Court, and that was the worst possible reason for her to be denied the opportunity. Brett Kavanaugh has proved that with the right education and appendages, you can literally lie and spout purely partisan rhetoric, and Republicans will still support you.

The things we do to women in this country are wrong, and I am sorry for my complicity in it, even if it was just over email to friends. Harriet Miers deserved the same opportunity to be a ruinously bad Supreme Court Justice as was given to Sam Alito. She deserved to be the same kind of illegitimate crony of the executive branch as we now are about to give to Brett Kavanaugh.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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