From Powell to Miers

Lost in the academic commentary on the nomination of Harriet Miers is the fact that she is apparently a nice and accomplished person.  Academics like to hear that someone is brilliant, though they then proceed to doubt the application of the accolade.  Niceness is not usually offered as a desirable quality in a jurist.  I have now met several persons who knew Harriet Miers at various stages in her life and who have sought to describe her.  No one has said "brilliant," and all have said "nice."  In fact, I am told that while she was not voted most likely to succeed in her high school class, she was deemed to be the nicest.  I think we underestimate how much most (non-academic) observers value that quality when attached to someone who, in their view, is smart enough.  Miers was one of the best students in the schools she attended, and in those places and certainly in that era, being voted "nicest" was probably the most valued compliment her peers could deliver.  We might guess that a good part of her success in the Texas Bar Association and at her law firm can be associated with this perception.  "Nice" in those circumstances might mean that a person is sufficiently non-threatening or otherwise appealing to those in power. 

At similar stages in life, Lewis Powell was described as a gentleman, or as gracious, which he certainly was.  As it turned out, this quality had some bearing on Justice Powell's decisions on the Court, though I think it would have been impossible to predict these connections in advance.  In retrospect, Powell's graciousness had much to do with his sentiments in Edgar v. Mite (the state takeover statute, Dormant Commerce Clause, case, in which Powell noted that unrestrained takeovers might threaten the stability of local operas and civic associations that relied on long-standing patrons drawn from the business community) and perhaps in Bowers, and in his later regret with respect to that matter.  But it is hard to believe that any of this could have been predicted in advance. 

Powell's graciousness must have had a great deal to do with his success in an important law firm, with his important role in the bar association, and with his appeal to a President and Senate.  Perhaps we will look back on Miers and Powell and some of their predecessors and see that niceness, or its male counterpart, at least when attached to first-rate professional accomplishments, is one route to the Court.