Strauss Comments on Appointing from the Inner Circle

David A. Strauss

October 5, 2005

RENEE MONTAGNE, host: President Bush is dismissing charges of cronyism in his selection of Harriet Miers. Speaking yesterday to reporters at the White House, the president said Miers is well-qualified for the job.

President GEORGE W. BUSH: I picked the best person I could find. People know we're close, but you've got to understand because of our closeness, I know the character of the person.

MONTAGNE: Mr. Bush is not the first president to nominate someone from within his inner circle to the Supreme Court. Joining me now to talk about this nomination and some earlier ones is David Strauss. He's a professor of constitutional law at the University of Chicago. Good morning.

Professor DAVID STRAUSS (University of Chicago): Good morning.

MONTAGNE: President Bush has known Harriet Miers for more than 10 years. She his personal lawyer at one point, and she's now the White House counsel. Is it unusual for a president to nominate a close associate to the Supreme Court?

Prof. STRAUSS: Well, in recent years, it's pretty unusual probably because of all the attention that Supreme Court nominations get from the public and in the Senate. But over the course of our history, it's not particularly unusual. President Truman, for example, had four appointments to the Supreme Court, and he faced charges of cronyism on every one. And in truth, a couple of them weren't that distinguished.

MONTAGNE: Well, did these nominees--any of these nominees of President Truman's later distinguish themselves on the court?

Prof. STRAUSS: Well, no, not particularly. Some of them were, I think, regarded as OK, but really, he's gone down in history as someone who did not make very good Supreme Court appointments.

MONTAGNE: President Lyndon Johnson later famously nominated his friend Abe Fortas to the Supreme Court, and that quite famously came to rather a bad end. Tell us about what happened there.

Prof. STRAUSS: Well, it did come to a bad end. Fortas was forced to resign from the court under a cloud, but it really didn't have such a bad beginning. One, Fortas was President Johnson's personal lawyer, and he helped him out of some tough spots early in Johnson's political career, but one difference between this nomination and that one is that Fortas, when he was appointed, was one of the leading lawyers in the country, and I think would have been on most people's short lists as a logical Supreme Court appointment. The problem was Fortas didn't stop being a close associate of the president's once he got on the court. He continued to give President Johnson advice on a lot of matters, including the Vietnam War, and when that came to light, it was thought to be--correctly, in my view--thought to be an inappropriate thing for him to do, and it wasn't the main reason he resigned from the court under a cloud, but it did contribute to that.

MONTAGNE: Well, that is a question that has come up with Harriet Miers. Are close friends of presidents agents of that administration?

Prof. STRAUSS: Not really. I think the justices get to know each other pretty quickly. It's a pretty intimate working environment. I think the bigger concern for Ms. Miers is going to be that, you know, she's not a federal judge. She doesn't--unlike John Roberts, she doesn't have a law practice that focuses on the Supreme Court. And it will take her a long time just to get up to speed on the issues that the court confronts. They're really different from the issues--anything she's confronted as a commercial litigator, and we're really talking about--if she's confirmed, talking about a several-year period, I think, before she's fully up to speed.

MONTAGNE: Well, in the near term, how will Harriet Miers' relationship with President Bush affect her confirmation hearings, do you think?

Prof. STRAUSS: Well, I think it'll have different effects on different parties. I think the Republicans, in the end, for all the grumbling that might go on now--in the end, they will be very reluctant to oppose a close associate of the president's. The Democrats, on the other hand, I think their attitude will be, you know, the president knows her very well and must know her views, and if we don't have other information about what her views are, we're going to assume that she agrees with the president and, in many cases, from the Democrats' point of view, that is to say, we'll assume the worst.

MONTAGNE: Thank you very much for joining us.

Prof. STRAUSS: You're very welcome.

MONTAGNE: David Strauss is a professor of constitutional law at the University of Chicago, and he spoke with us from Chicago. You're listening to MORNING EDITION from NPR News.