The Volokh Conspiracy

Orin's description of law professors (which he admittedly takes effort to qualify) doesn't seem to apply to anywhere near the majority of law professors I've met. It seems to most accurately describe the most notable professors well, but falls far short of applying to most others (not all law professors study/teach fun, hot topic con law courses). In fact, I'm not sure most law professors aren't as "unqualified" as Ms. Miers- having an expertise in a particular area of law, but nothing so relevant to work on the Court.

Orin, what do you think of Breyer and Scalia? They are probably the two most prominent ex-professors in the judiciary, and most would say that they're also pretty good at their current jobs. Of course, neither went directly from academia to the Supremes, and maybe that's the critical point. I do think that Scalia's effectiveness as a Justice has suffered considerably from being too sure that he is right, and maybe this is left over from his academic days. Or maybe it's just him.

I personally am warming to Harriet Miers. Admittedly that is because I am a moderate Democrat and I think she'd be a hardworking moderate Justice with a pro-business bent, and thus be my representative on the Court in Hruskian sense. I think she would wiggle and waffle and in the end vote not to overturn Roe, probably with a sorrowful, not very analytically sound concurring opinion.

So I am sympathetic to Beldar's summary of her qualifications to which Prof Kerr links - although Beldar phrases them tendentiously and overstates things in at least one place. She was not an editor of "the top journal at her law school." The top journal at her law school is the Southern Methodist University Law Review. Miers was on the editorial staff of the Southwestern Law Journal - a perfectly good journal, but not the flagship journal at SMU.

Richard,

Actually, I think the SMU Law Review and the Southwestern Law Journal are the same thing:

"The SMU Law Review, formerly the Southwestern Law Journal, is published four times each year and reaches law schools, attorneys, and judges throughout the United States and abroad."

http://www.smu.edu/lra/Journals/SMULR/Overview.asp

I'd tend to disfavor nominees whose ONLY qualification was being a distinguished law professor. But if they were also, say, distinguished practitioners, government officials, or judges, I would consider extensive academic work in an area relevant to the Court's work a plus.

Medis is of course correct when he writes the above, but I think he glosses over a key point in the rhetorical campaign against Miers. It's not simply that being a law professor plus judge makes one more "qualified" than someone with Miers' background, although I think it does.

It's that being a law professor plus judge allows us to evaluate the nominee. We simply know nothing about Miers. Not about her philosophy, her views, her approach to judging, nothing. Not even her politics, although I would assume she's conservative. A professor has writings that let us know what -- and more importantly, how -- he thinks. A judge has writings that let us know what and how he thinks, and more importantly, how he judges. Miers has nothing.


Beldar is doing yeoman's work in his attempt to refute the allegation that Miers isn't qualified because she's dumb; the problem is that this is the easiest, and least compelling, argument to refute. There has been some unfortunate hyperbole questioning Miers intelligence, but most people have not been making the argument that she isn't smart. The claim that she isn't "qualified," for most people, refers not to her abstract intelligence, but to her specific intellectual views.

I agree with Orin's points, but he overlooks a key reason why law professors might be good candidates: they are just about the only people, besides the Supreme Court justices themselves and maybe some Supreme Court litigators, who are experienced in interpreting federal law without being bound by the precedents of the Supreme Court.

People, including some of the bloggers here, who claim that a S.C. nominee needs to have a publicly expressed philosophy of constitutional adjudication are definitely restricting the field to law professors (and perhaps a few judges). How on earth would a lawyer in private practice have such a thing?

What's funny to me is the divide in the legal community: most of us lawyers think of academics and judges as drones, probably incapable of holding jobs in the private sector, and infinitely lower in prestige than the managing partners at large law firms. Obviously that isn't the prevailing view here.

It is not only "constitutional law" -- in the sense of Brown v. Board of Education -- that a potential nominee should be familiar with, but also "constitutional law" in the sense of federal courts, federal litigation, and administrative law (which deals extensively with separation of powers concerns and the relationship between Congress and federal agencies).

The potential benefit of a Miers-type is that she may have litigated regulatory matters. In other words, she may have familiarity with administrative law, formulating federal questions, or a good working understanding of how federal courts work.

Problem: she was not a federal litigator. She did not do trials in federal district courts or try cases before federal regulatory agencies. So all of her experience in practice is not relevant to the Supreme Court. (She clerked, but simply being a clerk is not a per se qualifier for SCOTUS.)

To those who say, well, she was a great litigator in the state of Texas; well, then appoint her to a federal district court in Texas. Or put her on the Supreme Court of Texas. Or elect her to be the head of the Texas Bar. Or, frankly, if you get into the White House, have her serve as your counsel. But that doesn't mean she's qualified for the Supreme Court. Not by a long-shot.

Someone on here attacked the notion that Senators aren't per se qualified for SCOTUS. But Senators, even if their resumes are unimpressive before being elected to the Senate, once elected are actively engaged in the drafting of legislation, which requires constitutional interpretation. They gain an institutional understanding of Congress (a federal body) that is valuable on SCOTUS in deciding questions of federal law. Miers does not have a Senator's experience with federal law, so she isn't qualified in the way is the most idiotic Senator.

She's a state lawyer. Note that were she a state judge or a state legislator, then she would have experience dealing with federal law -- either writing laws that implement federal policies in your state or interpreting federal law when federal questions are raised in state court.

The fact that she "grappled" with Jones v. Bush is not really that big of a deal. The question -- as many here have asserted -- is a simple one for someone who has a working understanding of rudimentiary federal questions. I doubt that any 1L could handle the question; but I do believe that any law school graduate who clerks for a federal district court judge could win the case.

So my question to those who support Harriet Miers is this: Do you believe that a federal judicial clerkship is a per se qualifier for nomination on the Supreme Court of the United States? If not, then how is it relevant that she won Jones v. Bush?

It cannot be true that being a law professor is necessary to serve on SCOTUS; it also cannot be true that a district court clerkship is sufficient. I don't see a persuasive case for Miers, other than that Bush really, really, really likes her. Bush likes Laura Bush too, but she ain't qualified, neither.

In my experience, Senators do precious little statutory drafting -- and that, usually badly. Their staffs handle most of the grunt work.

I agree with the concern that, while Ms. Miers is an experience litigator, most if not all of that comes in areas that generate very few Sup. Ct. cases.

Dave Hardy:

I didn't say they did "statutory drafting" -- I said they were "actively engaged" in it. I don't think we disagree, depending on what actively and engaged mean.

But I will say that a Senator would probably understand Breyer's arguments about Congress's institutional capacities or the value of legislative history or committee reports, which David Frum argued (rightly or wrongly) on C-SPAN that Miers would not.

Some profs would make great judges, but most -- esp. most Con Law ones -- would be horrendous. Most Con Law profs (the ones on VC being notable exceptions) are the most blatant results-oriented types around, with everything else as window dressing.

Aside from that, I have seen pretty many profs jump into appellate briefing on their pet issues. Most stink. Many just like to cite their own articles, and their friends articles, as if that were legal authority.

If I could pick 9 profs from the rare minority of profs, then I could make a Court of them. But if I had to pick 9 random Con Law profs from the top 20 law schools, or 9 random managing partners from the top 20 firms, I'd take the firm crew, with no doubt.

In other words, I may prefer Roberts or a Prof. Volokh to a Miers, but I darn sure prefer a Miers (from what I can tell) to a Tribe, Dworkin, etc.

How am I supposed to do my job as a McBushRove flak, using psychologically tested words like "professoriat," if you guys keep being so reasonable? Sheesh. Rove's going to stop payment on this month's bribecheck!

I'd love for Lino Graglia to be on the SCOTUS.

My take on Beldar's commentary was that many of the critics seem to automatically assume that law professordom is one of the two career paths which will qualify a candidate for nomination to such a lofty position because it has given her the chance to grapple with Constitutional issues in a meaningful way.

If we are to require SCOTUS nominees to have published legal analysis which reflects their own views, we have pretty well restricted ourselves to law professors. Most practicing lawyers will have a track record of legal analysis but much of it will be buried in various court files or in confidential files. Politicians are likely to have given us a public record of their views, but not in a form that reveals their analytical skills (or whether they have serviously grappled with the issues). Even Roberts, who has a very impressive record of legal analysis had not revealed much about his own views. Thus: Beldar's comment that many conservatives are seeking a law professor.

Can we agree, for snobbery's sake, to exclude SMU faculty from SCOTUS?

Just curious.

"All this railing on Douglas? The man was a genius and a good justice."


And, if you did not think so, he would lie about his background until he convinced you.

David Sucher,

Personally, if a nominee was considered one of the top few trial attorneys in the country, maybe that should count as a notable qualification for the Supreme Court. But I find it interesting that on the one hand you think Roberts' time as a Supreme Court litigator doesn't count as "practical experience dealing with real problems," and yet on the other hand you want to see Miers put on the Court precisely because she does have such experience. In other words, it seems to me there is a real dissonance between how you view the Court's work when it comes to assessing Roberts' experience and how you view the Court's work when it comes to assessing whether Miers is suited for a position on the Court.

So, why not put her instead on something like a District Court, where her practical experience as a trial attorney would be more directly relevant? And I take it you would agree with me that there is nothing insulting about such a suggestion precisely because the work of the district courts is vitally important.

First, I believe Chief Justice Roberts was an excellent pick. I'm not sure there is any question as to his intellect, and as to his experience, I believe he is well qualified. He has, though for a short period of time, sat on the bench, he has argued before the supreme court on numerous occasions, he has worked for the solicitor general’s office, he has worked in private appellate practice, he has served as a SCOTUS clerk, he has served in the justice dept., and, has defended a wide range of clients. He has defended the US government, he has defended policies while working in the executive branch, he has defended huge corporations (including work for state appellate matters), and perhaps most importantly: Roberts defended the little guy on a pro bono basis. This, in my opinion, demonstrates his knowledge and understanding of the pragmatics of the court. I am not yet convinced Miers possesses these qualifications.

Also, something that has yet to be said, and I’m not sure if I am being naïve; however, it seems to me that the main purpose of the court is to hear real cases, without issuing advisory opinions. It seems, one of the major requirements of a law prof is to deal in the quirks of the law, to point out the most unlikely of circumstances in order to say “what if?” I definitely agree that combined with other experience, especially a lower bench academia is a great resume builder so to speak. However, moving directly from classroom to court may bring some conflicting approaches to cases.