October 11, 2005

Mellowing on Miers.

The Washington Times reports on the official White House response to the massive doubts about Harriet Miers. On the surface, it's all wait and see, we actually know what we're doing. Meanwhile, nearly half the Republican senators have expressed doubts.
[Senator] Thune, for instance, did not go beyond calling for a "fair up-or-down" vote.

"However, I will reserve judgment on this nominee until the Senate studies her qualifications," he said before invoking conservative Justices Antonin Scalia and Clarence Thomas. "It has been my expectation that President Bush would nominate someone in the mold of Justices Scalia and Thomas and it is my hope that Harriet Miers will prove to be such a person."
In an important sense, President Bush has already failed to fulfill his campaign promise that he would choose someone like Justices Scalia and Thomas, because they are justices committed to a particular constitutional theory, which they make a point of saying they are bound by. Really, John Roberts did not fit this mold either. It seemed as though he was supposed to be conservative, but one couldn't really know, and, in fact, he seems likely to end up in a more moderate position than Scalia and Thomas. And we discovered at the hearings that Roberts did not embrace the sort of textualism or originalism that distinguishes Scalia and Thomas. Roberts presented himself as more of a pragmatist (like Justice O'Connor, perhaps, or even Justice Breyer). And surely, Harriet Miers is associated with no theory of constitutional interpretation. She appears to have never shown any interest in constitutional analysis at all.

This lack of interest in theory has bothered a lot of lawprofs, including me. Conlawprofs are biased in favor of theory. If you are going to devote your life to the subject of constitutional law, as an academic subject, you are probably the sort of person who is attracted to abstractions, theories, and larger patterns and aspirations. You are going to tend to approve of jurists who have a similar frame of mind, a large capacity for theory, that makes you and the people you surround yourself with so impressive. Now, who is this Harriet Miers, this practicing lawyer, who presumes to go on the Court and write the opinions we must spend our lives reading and analyzing? Even when you have little hope that the nominee will decide the cases the way you want, you have a problem with the presumptuousness of putting a person like that on the Court. Roberts was one thing, but she is quite another. In him, we saw ourselves, but she is just an attorney. The very idea!

Thinking about it that way has begun to thaw my opposition to Miers. Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk? Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer's methods to resolve the problem at hand. What is wrong with having that style of analysis in the mix? We need a safeguard against the excessively theoretical.

And let's not forget that much of the Court's work is not constitutional law. There are many complicated federal statutes that require interpretation and many problems of procedural law to be sorted out. Too often the justices seem to be preoccupied by cases that appeal to the theoretical mind, but that have less real effect on the world than many tedious, technical matters that they might have spent their efforts on. For example, the problem of whether government can display the Ten Commandments absorbed the Court last year. It's a fascinating theoretical problem that I enjoy discussing with students in the classroom. But what cases solving less fascinating problems were passed up to put the Ten Commandments cases on the docket?

Thinking about these things, I've mellowed on Miers.

32 comments:

Derve Swanson said...

Congratulations and good job on your re-thinking. It was kind of embarrassing the way so many bloggers and academics piled on to say she was "unqualified."

Maybe not the best of all possible candidates for the job, maybe not who they personally would have chosen, but to demean her experiences during her times as "unqualified" seem a bit much.

I think most regular Americans are used to "making do with what you have", which means we don't always get to pick the students or co-workers or work situations before us, but we have to do what we can with what is there, instead of wishing and moaning for the ideal.

Sloanasaurus said...

I would be all for Miers if she wrote 5 page opinions to decide cases. If you want to be clear to the lower courts, make your opinions short.

Roe could be overturned in less than five pages.

Unknown said...

But what cases solving less fascinating problems were passed up to put the Ten Commandments cases on the docket?
Miers is an evangelical Christian. I have a hunch we're going to have a lot more cases like The Ten Commandments on the court if she's appointed.

john(classic) said...

Good reasoning.

Whom would you rather have pilot your plane the next time you travel:

1.An experienced pilot

2.The renowned professor of an university aeronautical engineering program who is currently engaged in a fierce dispute over the temperature profile variants in hypersonic flight.

Hecla Ma said...

Excellent reasoning and I like John's analogy a lot, too.

goesh said...

Hard-right psychics having fathomed how Harriet would judge and rule on various issues then took their abilities to the stock market and lost their asses.

Unknown said...

"We need a safeguard against the excessively theoretical."

I'm not a lawyer but agree wholeheartedly. This maxim could apply to many academic disciplines as well. Sometimes a cigar is just a cigar, you know?

John, reminds me of another post-9/11 critical theory version of your question: Who do you want to sit next to on your next flight, Todd Beamer or Herbert Marcuse?

Simon said...

I think entirely too much is being made of the virtues of "real world experience," if that is even an appropriate description of life as a practising lawyer. Is her experience in the trenches is a good thing?

My concern would be that experience with the real-world consequences of one's judgements is likely to make a Justice pause to consider whether a ruling which is constitutionally necessary should be made if it had far-reaching practical effects. It seems to me that this is precisely the reason why people are arguing that it is a strike in her favor, but I am not convinced. In my view, a Justice should not entertain such concerns; they should rule the right way, even if it creates a bombshell for the government, for the lower courts or for practising lawyers everywhere. Practical concerns did not restrain the court in Brown, as well they should not have. Practical concerns did not restrain the court in Pollock.

For more recent example, in Blakely, I do not think that Justices O'Connor and Kennedy were necessarily mistaken in their dire predictions. My point in rebuttal would simply be "so?". The bill of rights was written to protect basic rights; in my view, it was not written to make government easy, it was written to make it hard. Justice Scalia's majority opinion (rightly, in my view) point-blank ignores the practicality concerns of the dissents, because they are immaterial to the point at hand.

My concern is that Miers is too likely to be result-oriented; she has a background in a results-oriented career, without firm anchorage in constitutional theory, and her experience in the trenches may make her like the General who has grown too fond of his men to order the assult.

john(classic) said...

CS---

Air travel with a fierce argument over destination (grin)

I'm long retired. I did a fair number of federal appeals. With one exception, I can not recall ever being asked a pure legal theory question.

Aside from factual and procedural questions, and questions about precedent, the predominant questions were directed to what I was espousing and how it would actually work in real life.

Simon said...

John,
Your pilot/engineer analogue is inapposite. It presumes that Miers' experience is relevant to the job of a Supreme Court Justice, merely because it is practical experience in the legal field. Miers is not an experienced pilot in the scenario you offer. A more appropriate analogue might be:

Whom would you rather have pilot your plane the next time you travel:

1.An experienced air hostess who has watched a pilot on many occaisions and was once even the Air Hostess Union Shop Steward,

or,

2.The renowned professor of an university aeronautical engineering program who is currently engaged in a fierce dispute over the temperature profile variants in hypersonic flight.

The reality is that you probably don't want either. You want an actual pilot.

Simon said...

Indeed, Roberts was not an academic and his judicial experience was brief - his primary qualifications were being a truly excellent and fantastically bright lawyer.

Funnily enough, I opposed him, too. Qualified? Sure, but at no point did he offer a judicial philosophy that I thought appropriate to the role into which he was being confirmed. There is some disagreement as to whether Roberts revealed a judicial philosophy at the hearings, but I would argue that, to the extent he did, it was unsatisfactory.

john(classic) said...

Would this be a fair characterization of your new expanded view?

The Court needs pointy headed intellectuals but it also needs people experienced in parking bicycles straight.

john(classic) said...

Simon said--

"It presumes that Miers' experience is relevant to the job of a Supreme Court Justice, merely because it is practical experience in the legal field."

With the qualifiers of "good" and 'substantive" to experience, and an assumption of a good intellect, yes. The key of whether one of the vast hordes who would meet these requirments ought be selected as a Supreme Court justice comes down to issues of the overall make up of the Court and issues of individual intellectual integrity and character.


Look, legal theory is all good and well, and it can contribute to a good system of justice. But down in the trenches, understanding how to use a shovel and what dirt is like when you add water is also important -- very important. The person supervising the trench digging had better understand them too.

The Supreme Court has a lot of jobs, but developing abstract legal theory is pretty far down the list. To a certain degree, that's what law profs do to describe what the Supreme Court did.


Let me ask you a question, If you think that what matters in terms of good decisions is the Court as whole, what sort of person, in terms of experience, training, and background would best fill the holes in this court? Where is the present Court weakest?

Brent said...

Good to see most of you coming over to the side of "softening" your opposition (Simon - there's still time).

That stalwart of anti-Miers screaming, The National Review, has its managing editor Jay Nordliger actually doing the same today:

"I was very much comforted by a talk I had with a federal-judge friend. I thought he would be mortified, as so many of us have been. And I was shocked to find that he was delighted with the choice — and thought the general conservative criticism was bunk."

"Since sociology — the awful matter of class — has played a role in the Miers brouhaha, I might give you this judge’s credentials: He went to the very fanciest schools in the country (starting with prep school). He was a partner at just about the fanciest firm in the country. And he was a federal judge pretty early. In other words, he is at the top of the elite heap."

"And he thinks Miers is superbly qualified — loves her background, loves what she has done. Loves what he thinks he knows about her character, and her work habits. Thinks she would be terrific on the Court. “The Supreme Court is packed with former Court of Appeals judges,” he said. “We don’t need any more. And, you know? They’re not necessarily all that impressive, trust me.” He went on to describe one of the judges presumed to have been on the president’s short list as “frightening”: frightening as in, not too swift."

Nick said...

Gee... you're starting to sound like me. Shocking I tell you.

Tom Grey said...

NOT "A person like that" -- not an abstract loving NT or NF (Myers-Briggs) personality.

The Court doesn't need more nuance. It needs more agreement with good decisions.

I don't think the air pilot analogy is so good -- how about furniture design?
I've sat in Frank Lloyd Wright designed chairs, and other famous designers -- horrible.
Anybody CAN do "furniture design" and almost any high SAT scoring University grad "could" do SC opinion writing. What's the criteria for good decisions, or good furniture design? The Constitution? Comfort.


The real blame for Bush's weak choosing is the Gang of 7 of 14, who were unwilling to fight for brilliant "C" Conservative nominees.

Finally, I suspect Miers is more likely to sway Kennedy than Roberts or Scalia, for instance. By intellectual deferrence combined with practical effect analysis.

Charles Giacometti said...

What troubles me about the Miers nomination has nothing to do with her qualifications--or lack thereof. What troubles me is the apparent secret deal between the White House and the religious right. Thus we have James Dobson reassuring his faithful based on things he knows about "but can not share." This is horrifying. Why should a religious leader know things the public does not know and that even the Senate does not know? He shouldn't of course.

Of course, Dobson could be blowing smoke, but I doubt it. In which case, the country really has gone completely nuts.

john(classic) said...

Bunnie--

What distinguishes HM?


1. Bush is confident of her.

This isn't a throwaway.

Every February I glom onto the seed catlogues and start fantasizing. It's what people in Wisconsin do in February. We have the same avid interest a lecher in a warmer climate might have for the Victoria's Secret catalogue.

I look at this gorgeous Russian red potato and that description of a French fingerling that causes saliva to flow. But the reality is that though I might experiment with a couple of those, most of what I will plant will be what I know --the same yellow German Butter Balls and Red Norlands I plant every year. You see, I know that they will do well and taste good.

The choice is not a simple one of "who is best". It is one of "whom do you know will be best" -- a multiplication if you will of certainty by possibile benefit.

Perhaps Bush thinks that Janice Brown might be a better SC Justice. But he has to discount that by the fact that he doesn't know her, just as I have to discount the luscious sounding French fingerling potatoes.


2. The people who know her have high regard of her -- including her opponents. She clearly has the respect and support of the Texas Bar.

3. Her becoming managing partner of a large (how large? top 500?) law firm speaks more for her than it would for most of the other 500 managing partners, because she is a woman. That is not a "pick a woman" calculation, but a recognition that a woman who made it to the top in Texas in the seventies and eighties had something special.

4. He can get her confirmed (well at least he reasonably thought he would) because some Dems have said they would support her.Non consented to Janice Browns might have political value, but they don't sit on the court.

5. She has the respect of some fairly heavy weight clients. They hired her repeatedly.



6. When she thinks she is right she is obdurate.

Those are *some* distinguishing factors.

Ruth Anne Adams said...

Hmmm...if I thought you were dastardly, I might think the "mellowing on Miers" was done to jack up the hits and links. Actually, I think this reflects why you're a good blogger--previous posts never interfere with good and logical arguments in front of you today. I'm really seeing that "moderate" in you come out.

Attila said...

Practicing lawyers are definitely qualified in principle. John Roberts was qualified. Ted Olson is qualified. A guy like Chuck Cooper is qualified. They've all had a great deal of experience, in both private practice and their government service, in dealing with constitutional issues.

If there were any basis for believing that Harriet Miers falls into this category, the folks at the White House would already have told us.

She's by all accounts an accomplished lawyer. Her tenure as White House Counsel is a plus (even though a bunch of relatively recent occupants of that office were hacks). But count me as one who believes that constitutional law is important for a Supreme Court justice. As Todd Zywicki has pointed out, if you aren't extremely well versed, you will have trouble holding your own with the other justices. I would call it trying to play ball with eight Michael Jordans.

Last, I think her active involvement in the state bar and the ABA is a negative. The legal establishment is decidedly center-left and politically correct. All you have to do is read the proposed positions of the ABA to know this. It's to her credit she opposed the abortion resolution at the ABA (whatever your views are on that subject), but I've seen little to suggest that she isn't pretty typical of bar leaders.

In any event, I'm more interested in an originalist approach to judging. I've seen nothing indicating that in her, and reports of her hostility to the Federalist Society are not a good sign.

I'm still pro-Bush, but he messed up big time on this.

Fred said...

Everyone one brings a vision of the Constitution and it's role in our systme to the Court. Those who have had the most ill-formed vision / theory of the role of the Constitution have been the _worst_ members of the Court.

When Bush promised Justices in the mold of Scalia and Thomas he simply was promising to give us more than the mediocrities that have done so much damage to our Constitutional system -- i.e. mere lawyers lacking all understanding of the structural principles which give the foundation to the free society handed to us by the founding fathers.

Most of those on the court over the last 50-60 years more abilitity or qualification that credentials as a hack lawyer, so the answer to this question:

"Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk?"

is simple -- this is exactly the problem which has produced the trashing of our Constitutional system of government over the past 40-50 years.

PD Shaw said...

I agree with Coco. If we start with the proposition that a practicing lawyer is a good pick, where would Miers stand in relative comparison among practicing lawyers?

It might depend on the type of practicing lawyer. If procedural matters are important (and I agree they are), then lawyers that draft wills & trusts, perform mergers and acquisitions or offer tax opinions may hardly ever need to appear in a courtroom to be excellent lawyers, but bad picks for the SCOTUS.

Miers' name is identified in about 7 to 11 appeals. That seems below average for a self-purported civil litigation and appeals practitioner. This is probably because one of her areas of expertise, antitrust law, employed her more outside of the courtroom than inside.

Her involvement in the management of the firm and numerous trade organizations may be a plus in terms of diversity of experience, but they also likely took significant time away from practicing law.

PD Shaw said...

I don't know who MLPII is, but he/she sounds like a much better nominee: "As a lawyer for 42 years and a law prof for 34 years, teaching a number of Constitutional Law seminars but many more practice oriented courses such as Evidence and Civil Procedure."

As would any number of trial judges.

AST said...

I've been through the same train of thought. If past appointments are any indication, I can't see how the complaints of the commentariat on the right make any more sense than those on the left. In fact, it seems to me that George Will, Bill Kristol, the NRO pundits, etc. are making the same arguments as Charles Schumer, Joe Biden, et al.

Some of the greatest intellects in the country are committed socialists. So academic accomplishment is not a guarantee that a person will be a great judge.

I don't know any quality other than character that could give Bush the outcome he wants.

Eli Blake said...

Miers is smart enough. And she is conservative.

My own belief is that those on the right who are complaining about Miers are doing so, not out of some sort of principle, but purely for the political reason that they feel 'cheated' out of their vote on the 'nuclear option' a few months back, so they want to get a nominee who will induce Democrats to filibuster so they can go back to the nuclear option.

The fact that Miers is acceptable to the left, and that fact alone, makes her unacceptable to the right, who are more obsessed with trying to fight a partisan political battle than exactly who is on the court.

Raymond said...

Justice Thomas was very much a stealth candidate at the time of his appointment. I don't see Bush backing out of his commitments, but I get the feeling that he's a "get it done" guy. He wants a nomination that will actually get through the nomination process so that the business of the court can get done. I am looking forward to the hearings, but am not overly terrified at this point.

--Ray

Bill Faith said...

Ann, one part of your reasoning worries me a little (about Miers, not about you). As I said in this post on my blog:

Ann Althouse has mellowed on Harriet Miers, but part of her reasoning worries me a little:

... Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk? Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer's methods to resolve the problem at hand ...

OK, I'm not a lawyer and maybe I just misunderstand the lawyerly thought process, but I think it goes something like this:

A) Identify desired conclusion (e.g. "client is nnocent," "client has money coming", etc.)

B) Examine appropriate Codes, Case Law, precedents etc.

C) Construct best possible argument to support conclusion identified in step A)

My concern is that a Justice Miers, lacking solid familiarity with the Constitution, might substitute her personal beliefs, based on nothing more than "I feel sorry for these people" or "What would GWB say?" for step A), and then proceed with steps B) and C). I hope I'm wrong, but I'd feel a lot more comfortable with a nominee with firmly established judicial, not lawyerly, habits.

Simon said...

I've missed a lot of this debate (damned van broke down, and fixing it swalled practically my entire afternoon...), so I'm just going to very briefly respond to a couple of points here...

John-
It's weakest in the fact that there is the distinct lack of a majority that is committed to what I consider to be the appropriate judicial role. Whether it is missing someone with specific experience in a given field of law is like worrying about being able to see that your house is burning down while skydiving without a parachute. Is it a problem? Sure, but it's hardly your most pressing concern.

Coco-
"Me: Just curious - what judicial philosophy do you deem appropriate?"

I expected Bush to keep his promise. Bush promised a Scalia or Thomas. Obviously, they are both originalists, textualists, and obviously, there are some differences to those two justices' views (hey, I'm all for diversity on the court in that sense), but someone with a philosophy akin to either Scalia or Thomas would be just fine. Originalists and textualists.

I also 100% agree with Eric's comment (12:46 PM).

The thing is, you should be worried when Ann Coulter and Laura Ingraham are at least as qualified (and arguably more so) as the person being nominated to the Supreme Court. Now, Laura's great, and I'm not disparaging her for a second, but I wouldn't nominate her to the Supreme Court!

Lastly, the suggestion that sexism is in play here is preposterous. Want a demonstration? Ask someone opposed to Miers to name some people they would have approved of. Note how most of those people name at least two women (usually, but not exclusively, Edith Jones and Janice Brown). Is there elitism involved? In my case - yes, but I think most people opposed are opposed on far more down-to-earth grounds.

Ann Althouse said...

Bill Faith: I've seen several responses to my point like yours, and I think it is not an accuate prediction of how someone accomplished as a lawyer would behave upon moving to the role of a judge. Once a judge, the erstwhile lawyer has no client. You're assuming the lawyer has policy goals that fill the gap and become the equivalent of the client. But it would be the principled lawyer's choice to make the law the equivalent of the client and to be spot the "lawyer" in the other judges. The question then is simply whether Miers is principled.

Anonymous said...

I'm glad you've mellowed...you might as well have.

I have been wondering lately, Why would Miers not just tell the President, "I'm not qualified, pick someone else?" The more I think about that, the more it bothers me.

roger said...

I didn't read through all the comments (Sorry - didn't have time) so I don't know if this was mentioned, but there was a recent article in the Atlantic Monthly touching on some of Ann's thoughts. It can be found here.

Ben said...

Whatever your position on the Miers nomination, I hope you will enjoy a little comic relief that I came up with earlier this week. It's called "Swing Roe, Sweet Harriet".

Sometimes you just have to laugh.