In early 1980, he was just a local trial judge in upstate New York; she was an influential Republican operative lucky enough to pick the right horse in the presidential race, serving as Ronald Reagan’s state vice chairman. Within nine months of the Inauguration, Roger had himself a judgeship on the federal district court; four years later, he was elevated to the powerful federal appeals bench in Manhattan. “We’re a team,” he says. “I have the legal credentials. She has the political savvy.”
And how. In October 1987, when the nominations of Robert Bork and Douglas Ginsburg to the Supreme Court were going up in flames. Jackie Miner became a virtual campaign committee for her husband. She visited the White House, she lobbied the Justice Department, she even made blind calls to prominent liberals suggesting Roger as a good compromise. It didn’t quite work. Though Miner was frequently mentioned, Anthony Kennedy–a friend of Ed Meese’s–got the nod.
Jackie Miner may soon get another chance to cart out the Rolodex. This week or next, the high court completes its current term and such is the time that justices traditionally announce their retirements. No justice recently has even hinted of departure, but as usual there is speculation–this year, on the elderly Harry Blackmun and the occasionally ailing Sandra Day O’Connor. If the NO VACANCY sign comes down, Roger Miner, 56, won’t be the only candidate waiting to see whether he’s positioned himself well. He’ll just be the most obvious. “It really isn’t fair that I get this attention,” Jackie Miner complains. “Most judges do their campaigning themselves.”
She might have in mind two appellate judges appointed by Reagan: Chicago’s Frank Easterbrook, 41, and Pasadena’s Alex Kozinski, 39. Both are engaging conservatives who could hold their own in banter with either Johnny Carson or Oliver Wendell Holmes. In his early years on the I bench, Easterbrook was perceived as a brilliant extremist, wedded to economic theory as the solution to all dilemmas. His opinions have now mellowed–a fact he lets people know. Last year, he issued a rather liberal dissent in a controversial case and passed it along to a prominent Democratic senator (urging new laws). Kozinski is a wonderfully eclectic eccentric. One week he writes an exegesis on contracts, the next he’s in The Wall Street Journal with a Nintendo shopping list. “I’m not running for anything and to suggest so cheapens my work,” Kozinski says, a sentiment Easterbrook shares. “I do what I do because I enjoy it. If I really was looking to get on the court, I’d become a lot less visible.”
Then there is the more refined approach. Best example: U.S. Solicitor General Kenneth Starr, the administration’s chief lawyer before the Supreme Court. It’s no secret in legal circles (an apt geometric metaphor) that Starr wants to “move upstairs,” but he’s managed to avoid sounding like an overt campaigner. To take his current post, Starr, 43, resigned from a lifetime appointment to the federal appeals court in Washington–a move widely viewed as an attempt to work closely with those in the administration who will advise George Bush when a court seat opens up. In both jobs, Starr has cultivated his reputation as a thoughtful conservative, carefully avoiding the zealot image that doomed Bork. Patrick Higginbotham, 51, a federal appeals judge in Dallas, appears to be in a similar holding pattern. He’s kept a positive profile and assiduously courted the right political folk. In fact, after Democratic Sens. Lloyd Bentsen and Dennis DeConcini voted against Bork, they endorsed Higginbotham–ironically decreasing his stock among conservatives.
No sure things: Stumping for the Supremes is relatively new. Gone are the days when merit alone won Benjamin Cardozo (1932) a seat in high places. “There is no longer any public illusion that the justices are just technicians,” says Burt Neuborne, a law professor at New York University. Reagan’s judge selectors especially understood that ideology affected rulings; they looked for nominees who had amply demonstrated their views. Antonin Scalia and Bork didn’t appear at every Federalist Society cabal simply for the hors d’oeuvres.
Campaigning for the court in the Bush administration doesn’t ensure a conquest. Short of having been the president’s best pal in college better yet, being his roommate, getting him dates and saving his life during horseshoe practice–there are no sure things. “Trying to get yourself appointed to the court by George Bush,” says Prof. Walter Dellinger of Duke law school, “is likely to be as successful as trying to kill yourself by getting hit by lightning.”
