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Is Constitutional Law Hard? A Response to Hugh Hewitt:
Hugh Hewitt argues that it's wrong to question Harriett Miers' abilities and experience because constitutional law just isn't that hard:
  The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task[.]
  . . .
  [T]he most important quality in a justice, from Bork's published point of view, would be humility in the face of majoritarian choices consistent with the federalist framework.
  . . .
  The other argument is a subdivision of the "not smart enough" argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.
  From this I especially dissent. Simply put: It isn't that hard. It is wrong to argue that it is so. It is anti-democratic to argue that it is so. The Left wants you to believe it is so, and the center-right should resist that.
  . . .
  ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observors. Further, some of our justices have spent quite a lot of paper and ink arguing absurd theories that tell us "A" is not "A," with the intent of persuading not the people but other judges of such propositions that the Framers and their friends . . . intended to ban "under God" from the Pledge.
  I was puzzled to read this coming from Hugh Hewitt, as it is so dramatically different from what Hewitt was saying the only time he and I have spoken about constitutional law. Last March, I appeared on Hewitt's radio show to discuss the Terri Schaivo case, and in particular whether federal courts should overturn the state court decisions ordering the withdrawal of Terri Schiavo's feeding tube. At the time, Hewitt was not saying constitutional law was easy. Nor was he invoking the intent of the Framers, or the need for judicial humility and deference to majoritarian wishes. Instead, Hewitt seemed quite committed to inventing a new theory of constitutional law that would empower federal courts to trump the states and order Schiavo's feeding tube reinserted. At one point, he even complained about the failure of the courts to be "creative" in their reading of the Constitution.

  Here's an excerpt from the transcript of the show (HH is Hugh Hewitt, OK is me):
  HH: Professor Kerr, you challenged me to come up with the argument [for why Terri Schiavo's constitutional rights were violated by the state court process], so I spent some time this morning before class, actually, thinking what I would advise the family. And I think the crux of this is that the people who ought to be her guardians, her parents are not because her husband is by operation of law. And that there is obvious and admitted evidence he's living with another woman, by whom he's had two children. Absolutely conclusive proof of estrangement in 50 divorce courts across the United States. In every state, he should not be her guardian. And any state law that elevates her to that violates our sense of due process in the sense that the Cleburne decision violated our sense of due process in not allowing a school for special needs children, or a home for special needs children to open across the street from a school because they feared taunting. Your response to that argument.
  OK: Well, it's an interesting theory. I'm trying to think of how it's supported by existing law.
  HH: Cleburne. [Ed. — Hugh is referring to Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)]
  OK: Well Cleburne essentially held it was irrational to draw a distinction in that case. And here, I don't think you can say it's irrational to say that a husband should not [sic] be responsible for the care of a wife.
  HH: No, I'm saying it's irrational to allow an estranged husband, who's been living with another woman and has two children by her, to announce the decision in opposition to her parent's decision, in a case like this. . . . [I]s that not irrational?
  Later in the discussion, Hugh expressed frustration that the same courts that had invented all sorts of new constitutional rights were failing to be creative with the Constitution in the Schiavo case:
HH: . . . The courts here, have been in recent years, both at the state and federal level, very aggressive at inventing things. Borrowing from foreign law, inventing a right for same sex marriage, etc. Why are they so reluctant on the federal side to be creative, or at least be accommodating of clearly expressed Congressional desire for close scrutiny?
   Now, I don't mean to pick on Hugh; he seems like a super nice guy, and he is very smart. But I have no idea how to square the Hugh Hewitt of today with the Hugh Hewitt of the Schiavo period. As best I can tell, they are diametrically opposite in every respect. And that's exactly why constitutional law is a lot harder that the current version of Hugh Hewitt will admit. It's easy to repeat platitudes about how a judge won't "legislate from the bench" or will just "follow the Constitution." But the hard part is sticking with those principles when they no longer comport with the results you really really want to reach.

  To be fair, I agree with Hugh that Supreme Court Justices don't need to be academic super stars. But they do need to be reasonably self-aware. And my guess is that self-awareness tends to come most often from the experience of testing and evaluating arguments again and again, whether as a judge or in some other forum.
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