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.


HaloJonesFan said...

>And let's not forget that much of
>the Court's work is not
>constitutional law.

That's an interesting point...everyone's wondering what Miers would have done on Kelo. If she were a strict Constitutional-theory type, she may well have voted to support the taking!

Mary E. Glynn 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.

griffin d. politico dog said...

So? You've articulated, better than Bush, a reason for nominating someone with no experience. At this point, would YOU vote up or down?

griffin d. politico dog said...

Mary!? This is the Supreme Court of the United States. Excusing Bush for picking someone with NO constitutional law experience, by saying he has to make do with what he has, when there are a ton of great state and federal judges out there is unacceptable. Is there no standard that Bush is to be held accountable to?

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.

EddieP said...

Ann, I'm delighted to find your analysis has led you to mellowing on Miers. I think there is another reason that she will contribute greatly to the court - her business experience. To have someone on the court to add street level perspective to the theorists can't do anything but help. Keep thinking! Regards

CS said...

I guess we can all hope that the confirmation hearing shows Miers to have great depth, breadth and nuance of legal analysis and synthesis, and the rhetoric to put it across. Doesn't sound like too many managing partners in the real world, but who knows? I'd much rather see that than a recitation of commercial-outline-quality conlaw talking points, but I'm afraid we've swapped one set of doubts for another.

I try hard to get worked up about theories of constitutional interpretation, but keep reducing things to originalism/textualism/doctrinalism/ pseudohistoricism v. a kind of "larger themes" overgeneralized situationalism. It's like sitting between an evangelical and a unitarian at a dinner party. Exactly like that.

Richard Fagin said...

Well I guess I owe Prof. Althouse an apology for so clumsily and bitingly making the same point a few days ago ("an academic, or worse, an academic lawyer"). Please understand that the rest of us dummies, who actually have to live within the rules made the the Court, find some forms of academic reasoning to be preposterous, simply because to us dummies, the words being "interpreted" are clear and unambiguous. You eventually can "reason" yourself to the point where your friendly family law professor actually gives a lecture on using Federal civil rights laws to bludgeon state agencies on child support and custody matters (I'm not making that one up).

To answer Prof. Althouse's overriding question (Where's the writing?), Instapundit (I think, may have been Powerline) linked yesterday to a Texas attorney's blog that cited a number of reported Federal cases in which Miers was lead attorney. Apparently several of the cases dealt with complex commercial litigation and issues of personal jurisdiction of courts over large commercial entities.

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.

madcat said...

I'm still not pacified. From the New York Times' analysis of 2,000 pages of documents released on Miers, that ran today, it appears that "Cool!" is one of Miers' favorite adjectives. The satirical value of "her" blog may have just been raised exponentially... that really IS how she talks! Like, OMG.

(Not that we don't all slip into fun slang in our casual communications, but in all those documents, still not a smidgen of evidence about her abilities to analyze things in terms of constitutionality, not just "coolness").

CS said...

John, by your analogy, is what the Court does more like air travel or aircraft design? (And no, a/c design didn't stop with the Framers.)

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.

Knemon said...

"It's like sitting between an evangelical and a unitarian at a dinner party. Exactly like that."

Sounds like Thanksgiving at my house.

PatCA 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...


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.

Coco said...

Espousing the virtues of adding "just a lawyer" (my loose paraphrase) rather than an academic to the Supreme Court is fine - great actually. Indeed, Roberts was not an academic and his judicial experience was brief - his primary qualifications were being a truly excellent and fantastically bright lawyer. But claiming that Miers might be fine as a chief justice becuase she is "just a lawyer" rather than an academic still begs the fundamental question: is she even remotely the best person for the job? If the executive search net is cast wide enough to include all lawyers - or just all fantastically bright lawyers - from what we've heard Miers shouldn't have even been in the running. I'm withholding my final judgment until the actual confirmation hearings as she may yet turn out to be impressive. However, her career as a private lawyer is mundane at best. My firm alone has several lawyers with far better "just lawyerin'" credentials that would make them better candidates (on paper) than Miers.

Simon said...

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,


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.

CS said...

John, I've always had the notion that the Big Court was qualitatively different in mission, subject matter, systemic role from the circuits. Maybe that's just another subtle symptom of my having drunk the imperial-judiciary-flavored koolaid. But whadda I know? I'm just a tax guy. I'm impressed by the Claims Ct.

EddieP said...

What if the "most qualified" person were a dyed in the wool liberal democrat, would you expect Bush to appoint him/her?
I think not, so that leaves us with the best qualified depending on one's point of view. It is plain that Judge Bork couldn't get confirmed. Bush appointed the best person from his point of view. When you get elected president, you'll get to nominate justices best qualified from your point of view. How many right wing Miers' critics would have found anyone John Kerry appointed to be the best qualified?

This whole dumb argument isn't about qualifications, it's about people who are disappointed that they can't have a rip roaring battle in the senate and cram a justice down the left's throat. Like it or not, Bush knows that too many RINO senators don't have the cojones to fight that fight.

Art said...

All the talk of law profs as supreme court justices reminds me of what my mother used to say about a high school classmate from St. Louis.
She and Paul Freund, who taught at Harvard Law school, both graduated from high school at age 16. This was in the era of double promotion.
Every time there was an opening she would always hope he would be named. When Nixon came in she pretty much assumed that ruined his chances.

I just read his obituary in the Boston Globe.

You can read it here:

http://thomas.loc.gov/cgi-bin/query/z?r102:S07FE2-70: It sounds as if he would have been more than qualified.

David said...

i absolutely agree with everything you say, only it hasn't thawed my opposition to Miers. You are correct that real life experience is sorely needed on the court. But Miers doesnt have it. She's been working in the white house for years. That is not real life experience.

Also, Bush could have nominated someone with real life experience AND real life experience. I offer myself as an example. Only Joking. But there are thousands of practicing conservaitve lawyers with known conservative bona fides. Bush could have picked one of them.

Finally, youth is also a desideratum on the court. Miers don't got that either. I persoanlly know dozens of forty-something conservative lawyers, with decades of real life experience in many fields - corporate law, labor law, employment law, and constitutional law. In one fell swoop, had Bush pikced one of these guys, he would have filled all the needs of the Court. But he blew it with Miers.

Youth is another factor lacking on the court.

Coco said...

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

Simon: 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.

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

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.

Bunnie Diehl said...

Just because it's wrong to oppose someone because they're not a constitutional law theorist doesn't mean that HM is a good pick.

The world is FULL of people with different perspectives than those currently on the court. What distinguishes Miers among the rest of the world?

Too Many Jims said...

So do you now think she will be "hyper competent" or have your standards changed?

Eric said...

Faulty reasoning Ann.

It is clear that you haven’t practiced law much.

Here is how it happens. Your client brings you a case—he’s in trouble, in a dispute, or wants to do something that has legal problems. The lawyer asks herself: ‘can we come up some rationale that will win this for the client—or should we compromise.” Sure, the arguments (rationales and compromises) might involve some complex legal thought, but at base it’s expediency, pure and simple. Is it too much to suggest that it is not what we want in Supreme Court Justices? How about principles?

Veeshir said...

As a general Bush-defender I'm a little upset about this pick.
I have absolutely no opinion as to whether she's qualified or not. I wouldn't even know how to know that. But....
I've been fighting for him for years against the unfair (IMO) attacks against him. I was there for each and every gossamer-gate that rolled along. He promised me a justice in the mold of Scalia and Thomas. That's one of the reasons I saw posited for electing him by people who actually seemed to think that John Kerry would fight the War on (Some) Terror just as well as Bush.
That's a pretty specific promise and he didn't keep it.

That's why I'm upset. There are any number of people who would have fit the bill of goods he sold and this pick just doesn't seem to fit.
We're told to trust him, she's the right pick. I'm getting pretty sick of having to just trust him. In the Wo(S)T I understand I have to just trust him as he can't tell me what the real deal is without telling 3.5 billion of my closest friends, but this is different.

I feel that he owed us, his most ardent supporters who defended him against all manner of dishonest attacks that could have sunk his presidency.
But he is more interested in continuing power for the GOP than keeping his promise to his supporters. Just like campaign finance 'reform', just like expanding gov't (although that wasn't a promise made but just expected), just like the medicare vote-buying scheme last year. "Put up with it, he's fighting the war and will appoint non-activist judges"
That's why I'm upset, he broke faith on too important an issue.

gs said...

When I was a lass, I served a term
As office girl in an attorney's firm.
etc etc
I polished up the President so carefully
That now I am a SCOTUS nominee.

All along I have had the disgruntled perception that Miers is not unqualified. As a commenter on another thread said, highly unpromising people have become effective justices. If she weren't a crony, a pick like Miers could be passed off as bold and creative. (For a potentially disastrous nomination that makes Miers seem superb by comparison, consider Paula Myers, who is sailing right through the Senate.)

The problem is not Miers, but a marginal president who is in office because of two subpar opponents.

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...


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.

Patterico said...

Prof. Althouse,

Exactly the same arguments could have been made in favor of Lewis Powell, who has been compared to Miers due to their shared qualifications of 1) bar association membership and 2) experience as a practitioner rather than a judge before being nominated.

But when you actually look at the way Powell decided cases, you quickly see that, at least in Powell's case, your thesis -- that practitioners will cut through the theory to judge cases on the law and evidence -- didn't pan out, at all.

The way Powell came to his decision on Roe v. Wade, months after being confirmed, is truly shocking for anyone who hasn't heard the story. I did a post on it today and will link it (it's here) rather than take up space in your comments with the quotes. Suffice it to say that anyone who follows the link will be stunned at how easily Powell threw aside any regard for the Constitution in his zeal to cast a result-oriented vote.

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.

Brendan said...

You shouldn't "mellow" on Miers because even though she a "practicing, non-theoretical" lawyer, she's hardly the best one out there. This has been, and always will be, a debate about quality.

T J Olson said...

So, let me get this straight.

Any woman with a JD on the High Court is fine with you?

Then how 'bout a female Archie Bunker for SCOTUS? Bitgots deserve a place at the table too.

JohnK said...

I share many of the objections being voiced by conservatives over the Miers nomination, but part of me thinks that perhaps conservatives are acting a bit like liberals and taking themselves and the Court a bit too seriously. First, while from a purely meritorious point of view I am sympathetic to the idea of Miers not being an intellectual heavy weight, what exactly does getting an intellectual heavy weight on the Court buy conservatives other than another hopefully more reliable vote? This idea that we could get someone to “make law and change pull the Court rightward” is palpably ridiculous. Do you really think that Janice Rogers Brown or Robert Bork or whoever is going to convince Anthony Kennedy that applying foreign law to U.S cases is a bad idea? Or convince Justice Ginsburg that perhaps McCain Feingold is an abuse of government power? Have Conservatives really become so full of themselves and their ideas that they really believe such fantasies?

Also, isn’t it interesting how every conservative pundit claims that it takes a real intellectual genius to really understand and interpret Constitutional Law, yet each of them seems to have no doubt exactly how every case should be decided and exactly what constitutes a “reliably conservative vote?” Which is it? Is conservative constitutional jurisprudence some kind of secret mojo handed down from Justice Holmes that can only be understood in a secret language spoken only by likes of Robert Bork and Richard Epstein or is it a pretty straightforward philosophy grasped by bright lawyers and non-lawyers alike? As a law professor, I think you would agree that it is probably more the latter. These are hard issues to decide but not difficult to understand. Its not as if liberal jurists are crazy. These are subtle issues open to lots of reasonable interpretation. The difference is not necessarily how brilliant you are. It is not like there is one correct answer available to only the brightest. The difference is what your values and priorities are. As you I am sure well know, you don’t have to be a genius to write a good Supreme Court opinion and indeed, many a genius can and do write poor ones.

What do conservatives really want from a justice? The answer, I think if they would be honest with themselves is that they want the same thing liberals want, a justice who will vote their way. The rest of the qualifications are just nonsense “our guy is better than your guy” vanity. Look, no one ever thought of Clarence Thomas as being an intellectual heavyweight until he got on the Court and started voting the way they liked and then he became the model justice for the 21st Century. Anthony Kennedy in contrast was a much respected intellectual until he got on the court and proceeded to go off the reservation and now is the poster child for what not to appoint.

In truth, the enemy of a good Supreme Court Justice is not ignorance but vanity. What I think happened to Kennedy and O’Connor both is that they got on the Court and rather than viewing themselves as what they are, which is the caretakers of an almost sacred document, view themselves as trailblazers and policy makers there to “leave their mark” on the law. Once that kind of vanity sets in, they start doing things like introducing foreign legal precedents (in the case of Kennedy) or overruling whatever policy is not to their liking using whatever dubious and contradictory legal theory they can muster (in the case of O’Conner). In this sense, Conservatives would be a lot better off if they would stop focusing so much their attention on the Court and make it clear that Justices are caretakers and not the most important people in the world. It’s the liberals who live and die by the Court because they can’t win elections, not Conservatives. They would also do well to stop appointing people whose life goal has been to be a federal judge, even if they agree with their opinions and appoint Justices who have been successful in other careers and don’t view an appointment to the Supreme Court as an affirmation of their entire career and professional legacy. In that sense, Miers a successful lawyer and someone who seems to have done little or nothing in the way of angling for the job, might just be an ideal choice.

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.

Henry said...

I've found some of the hostility to Miers to be unwarranted. Her personal competence is simply not debatable. She's held challenging jobs and always done superb work.

Whether or not she has relevant experience is debatable and I think Ann has done a pretty good job of marshalling the (lack of) evidence on this point.

My attitude has actually hardened against Miers over the last week, especially with the White House's promise to evangelicals that she was "one of them."

Using a judicial nominee's religion as proxy for experience is simply abominable. The idea that Miers' religious convictions will guide her future decisions is not a populist rebuke to ivory-tower theorizing; it is a repugnant disparagement of the rules of process and evidence.

However, since I think the Miers is hardly to be blamed for the idiocy of the White House, I'm still waiting for the hearings to make up my mind for good.

(Ann will be blogging these hearings I hope.)

Charles said...

Uh oh. You mean this might be a more or less regular citizen that would *gasp* apply things like common sense to the law? The cheek!

As a regular citizen allowed to visit the law here and gain insight, I am not so sure I want her on the court, but for other reasons. Not so much law related, but I would like to see some evidence of sound logic, problem solving and decision making. I can make the leap from seeing that to figuring out that her decisions and writings would be equally good then. Nothing says a Justice has to be a judge or a lawyer to serve on the court.

biggovgop said...

I'm mellowing on Abe Fortas, too. Actually, the whole LBJ administration now that Bush is out LBJing LBJ.

The fact that she is not totally unqualified and it isn't proven that he has broken his promise of someone in the mold of Scalia or Thomas is lame. Angering your base like this is the biggest mistake in Politics 101. They must be in meltdown mode with the legal problems and falling poll numbers.

We need to get all the professional GOP crowd who are on the web to get back to their bosses that shilling this is making things worse.

MLPII said...

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, I think the importance of someone who knows how the practice of law works is extremely important. There are lots of practice oriented issues that get to the Supreme Court and, more often than not, the Court botches them. So, I'm delighted that you are mellowing on the HM choice.

I still don't know if she is a good choice, but I presume the hearings will give us a better idea. But, I think the notion that she is disqualified because she isn't part of the Con Law priesthood is outrageous.

JohnK said...


Excellent point. I totally agree that Con Law has become a priesthood on both sides. More importantly, people pay too much attention to the court on hot button issues like abortion and not enough on all of the other more mundaine but important areas of the law. On practical areas such as civil procedure and evidence law, they mess it up more than they get it right.

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.


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...

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.

"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.