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.