White Meets Powell Meets O'Connor?

I know little about Harriet Miers, beyond what I read in the papers (the electrons?) this morning. But I was struck by how her career path -- not necessarily her views, which I don't know -- fits more the paths of Justices White (especially) and Powell than of some more recent Justices. (There's also of course an element of Justice O'Connor, in the sense that both were among the first women to have risen to important positions in their civic and professional communities, Justice O'Connor in Arizona law and politics, and Harriet Miers in Dallas legal practice and in the Texas bar; but the analogy to White, and, to some extent, Powell, I think, is in many ways stronger.)

White and Powell, like Miers, came to the bench from lawyering, not from judging or the academy. Powell, like Miers, made his reputation chiefly in private practice, some amount of public service, and bar association leadership. White, like Miers, served in Washington following a substantial career in private practice (though Miers' was longer, since she is a decade and a half older than White was when he was nominated). White, like Miers, came to Washington after working on the presidential campaign, and had known the President before even before the campaign. My sense is that he was appointed both to the Administration and to the bench in large part because he enjoyed the President's personal confidence.

And these items, I think, fit a pattern: During that era and before -- though not as much since the Stevens appointment in 1975 -- Justices were often drawn from among practicing lawyers who had made their reputations as lawyers; and, as lawyers, they were more often likely to have developed relationships with the President who appointed them, or at least the President's team. Chief Justice Roberts in some measure fits that profile as well, though of course he was an inside-the-Beltway lawyer as opposed to Miers, Powell, O'Connor, and to a smaller extent White, who built their careers in their own states. They were not academics or judges; but the current heavy loading of ex-academics and ex-judges is a relatively modern phenomenon, not a settled long-term tradition.

Naturally, one can tell little from this pattern about a nominee's quality -- White, Powell, and O'Connor have been highly regarded, but not so, for instance, with Arthur Goldberg or Abe Fortas -- or about the nominee's likely ideology. It's not even clear that coming from lawyering would make the nominee more particularistic and less given to applying broader ideological principles; White, Powell, and O'Connor can probably be characterized as relatively particularistically minded Justices, but so could, for instance, Justice Breyer. Conversely, one of the most ideologically minded Justices since World War II, Justices Hugo Black, had been a Senator, not a judge or an academic.

My point is simply that when one is looking at Miers' career and credentials, it may be helpful to avoid comparing her to the current crop of Justices -- the natural tendency whenever one is considering a new nominee -- but rather to nominees who come from a different, but just as historically well established, mold.

M (mail):
Wasn't O'Connor a state court judge? At least that would be some judging experience, which would be an important difference. (Also, her experience in the AZ legislature would seem to be of quite a different sort than had by Mier.)
10.3.2005 1:59pm
Anti-Anti-Federalist Society (www):
On December 5, 2004, Rena Pederson, editor at large of the Dallas Morning News, wrote about Meirs:

"One legal lion once observed that she had gotten ahead in the male-dominated profession precisely because she wasn't a feminist, then he paused to reconsider and mused, "Maybe she is a feminist, I don't know.""

"That's not surprising - Ms. Miers is so adept at keeping her personal views to herself that when she ran for City Council in 1989, few knew whether she was a Republican or a Democrat, liberal or conservative."
10.3.2005 2:21pm
marc garber (mail):
What concerns me about Harriet Miers, and just about every other SCOTUS nominee since Earl Warren (with the exception Thurgood Marshall), is they have had no nuts-and-bolts criminal justice experience.

Byron White was AAG-Criminal but that hardly counts for understanding the problems that confront lawyers every day. Scalia was AAG-OLC, so he may have written a memo or two on criminal issues. Again, not much in the way of understanding how cops, suspects, and the criminal-justice system interact. Breyer helped draft the USSG's, but so what. O'Connor wrote criminal laws as a legislator. Roberts argued criminal cases while in the SG's office. Stevens probably defended a few corporate clients in DOJ anti-trust investigations. Souter was in the New Hampshire's AG office, but I don't think he was a line prosecutor. Etc, etc. (Robert Jackson gets credit for prosecuting the most heinous of the Nazi war criminals, but by then he was already on SCOTUS.)

And I suspect none of these folks ever worked on the defense side of investigations or criminal prosecutions for a living. Or for that matter on the prosecution's side.

Harriet Miers fits this same mold.

And my understanding at this point is the Administration will be presenting Harriet Miers as a "law-and-order conservative."

I suspect that translates into a very narrow view of Fourth Amendment protections and a very generous view of police techniques and Congressional legislation authorizing adiminstrative subpoenas and seaches.

That's too bad because I don't believe Miers' appointment bodes well for our civil liberties over the next 15 or so years.

These days, when nominees say, as she did this morning, they favor the Founder's vision of the Constitution, they're not talking about a Madisonian view of the Bill of Rights -- all 10 of them -- as limiting Congress's power in favor of protecting individuals.

Rather, the nominees mean an anti-federalist, anti-Hamiltonian view of federal/state relations. The other 9 amendments seem to mean very little or nothing, unfortunately.
10.3.2005 2:36pm
Joe Hill:
Arthur Goldberg is not highly regarded? On what basis can you make that assertion? True, he didn't serve very long, but that only means one cannot come to a conclusion about him, not that he was regarded poorly.
10.3.2005 2:42pm
Carnivore (mail):
It's something that you can go on for several paragraphs about the "historical" path she took to get to where she is. Where's the beef, man? At least you didn't adulate about what fancy schmancy law school she attended. I'm sure we'll be hearing her scholatic pedigree and GPA next; I'm going to plug my ears.
10.3.2005 2:59pm
Kevin L. Connors (mail) (www):
M, O'Connor was a judge on both the Maricopa County Superior Court, and the Arizona Court of Appeals, before Reagan tapped her for the Supremes in 1981.

As usual, Eugene, the most insightful post I've read on Miers this morning.
10.3.2005 3:32pm
Kevin L. Connors (mail) (www):
Oh, and Eugene, I know O'Connor went to Stanford. Didn't she actually get her first leg-up here in California?
10.3.2005 3:37pm
Craig Oren (mail):
Joe, I believe it is hard to find a Goldberg opinion that is any sense a leading case. There is also a sense that Goldberg made it on to the court only because John Kennedy felt he needed a Jew to replace Felix Frankfurter. I think people also laugh at Goldberg because he left the Court to go to the United Nations, of all places. And my understanding is that Goldberg was a *very* unimpressive candidate for Governor of New York in 1970. None of this justifies a low opinion of Goldberg, but it may explain it.
10.3.2005 4:13pm
DJ (mail):
On the contrary, I always understood that it was Goldberg and Fortan who were highly regarded, and White and Powell who were not. By legal academics, at least. (Indeed, I recall seeing Fortas voted as "Near Great" in some Supreme Court evaluations taken in the 1980s.)

To be sure, White and Powell were competent, fine judges. But (at least in my view) their opinions were often heavy on detail, light on meaningful doctrinal analysis, and seemed more often than not to reflect a consensus outcome. This isn't bad, it's just not great.

From what I've read about Miers, I'd expect exactly the same thing. Maybe more conservative, but, as a judicial technician, the same.
10.3.2005 4:18pm
Gene Vilensky (mail) (www):
Prof. Volokh,

Isn't the reason why before the 1970's there were few legal academics on the bench, that the nature of legal education was different then. It was much more pre-professional and less scholarly. The notion of a grand legal scholar (on the scale of Sunstein, Tribe, Posner, Epstein, etc.) didn't really come about till relatively recently. So it would make sense that in those days, there were plenty scholarly-minded individuals in private practice and not in law schools (since law schools didn't necessarily care a whole lot about the scholarly quality of their faculty). Now, the standards have changed.

As an analogy, at the turn of the century, many fundamental scientific and mathematical discoveries were not made by academics, but rather people who had math and science as a hobby. That does not mean that if one were looking for an expert in, say, algebraic topology, one should not look for someone who is a professor at a major research university or someone without a Ph.D.
10.3.2005 5:27pm
R. Gould-Saltman (mail):
I don't like the candidate, or what I suspect (but don't know) is her ideological agenda (can hardly call it a jurisprudential agenda yet...), but I gotta mostly agree with your analysis, Doc.

While I like Marc Garber's thought as well, given this administration, it seems an unlikely view to sell to this administration; "line prosecutors' tend not to have the political clout you need with the current administration, and the chance that this prez, with this set of advisors, would EVER nominate anyone with substantial criminal defense experience is so tiny that a flea could step on it and not notice...

10.3.2005 6:00pm
ali (mail):
Prof. Volokh,

Since you are the top SC analyst, we need your supreme guidance.

How does one get to attend a SC hearing? Can one sit and listen to an argument? What is the process? Is there a wait list? Do we go 5am in the morning and wait, wait, and wait (as they did in Casablanca)?

Can you point us to a resource on your site that responds to questions about SC attending?


10.3.2005 10:42pm