Divided Loyalties

If confirmed as a Supreme Court justice, the biggest challenge facing Harriet Miers, President Bush's longtime lawyer, will be her ability to do a professional u-turn. Can she take the one quality that means the most to the president who just nominated her--loyalty--and leave it completely behind?Abe Fortas, the last justice to be elevated to the Court after enjoying such a close relationship with a sitting president (Fortas had been Lyndon Johnson's longtime personal lawyer), could never do it. On many cases where he had served a role advising Johnson in the matter before the Court, Fortas neglected to recuse himself. Worse, he continued to play an advisory role to LBJ. Johnson's key advisers, including Bill Moyers, Jack Valenti, and Joe Califano, continued to count on Fortas, sending drafts of legislation and even State of the Union addresses directly to his Supreme Court chambers for him to sign off on. All this eventually caught up to Fortas. When LBJ nominated him to be chief justice in 1968, his inappropriately close relationship with the president came under congressional and public scrutiny, and he later resigned in disgrace. On the surface, the parallels between Fortas and Miers are numerous. And yet there is one element in Miers's background that suggests she could escape the Fortas trap: Her past as a breaker of glass ceilings. In the macho world of Texas law, Miers rose to the top in a way that no woman had before. She may value loyalty, but she also appears to be someone who charts her own path. If she is confirmed, the future of the Court will depend on her ability to put this independent streak on display. What kind of president picks both John Roberts and Harriet Miers? They look like the ultimate odd couple. The conservative meritocracy meets the old-gal network. It doesn't add up. Actually, it does. We have seen this kind of presidential appointment pattern before, in Harry S Truman's White House. Truman's list of Supreme Court nominees looks like a reading list for Mediocrity 101: Harold Burton, Fred Vinson, Tom Clark, and Sherman Minton. All were Truman buddies from his Capitol Hill days--classic Miers-like picks. But Truman had his Roberts moments as well. Along with forgettable hacks like John Snyder and J. Howard McGrath, his Cabinet included giants like George Marshall and Dean Acheson, wise men who crafted the policies that won the cold war. That strange combination flows naturally from the Truman characteristic that history so admires--and the one that his contemporaries found so frustrating: his decisiveness. Truman didn't believe in deferring to experts; as the sign on his desk said, the buck stopped with him. Though a former senator, he had a very un-legislative disdain for decision-making procedure. Mostly, he just called them as he saw them, with little reflection or second-guessing. In a White House like that, decisions are bound to be high-variance. When layers of process and staff surround every appointment, the extremes--good and bad--tend to be lopped off. Brilliant minds with controversial ideas get nixed along with third-rate schmoozers. But, when the boss trusts his own intuition, all those options remain on the table. Cream can rise to the top. So can scum. * Akiba J. Covitz teaches political science at the University of Richmond. He previously served as archivist for the Abe Fortas papers at Yale University. * William J. Stuntz is a professor at Harvard Law School. For complete articles, go to tnr.com

By Akiba J. Covitz; William J. Stuntz