The Supreme Court and Constitutional Theory:
Ann Althouse offers some thoughts on the Miers nomination:
[Miers'] 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. . . .This brings up two interesting questions: First, how many of the sitting Justices are constitutional theorists? And second, how do we know that Harriett Miers lacks an interest in theory? On the latter question, it seems to me that we don't really know enough to say.
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.
The reason that immediately comes to my mind is that a lawyer concerns himself only with that client and that case when dealing with a legal issue that come across his desk. This is largely true for most judges as well.
Decisions of The United States Supreme Court, however, have implications well beyond the facts of the case being decided. As a result, the Justices must be able to think in far broader and more theoretical terms when rendering a decision.
Even granting Ann Althouse's assumption that Miers is uninterested in theory, does it necessarily follow that she would be a 'practical constructionist' (for lack of a better term)?
It's not a huge stretch to imagine a hypothetical person who has no interest in Constitutional theory and would simply use the position of Justice to advance his/her own views.
For me it's the unknown/unproven quantity that is a problem. I'll just have to wait and see since caller ID indicates W has not yet called.
The reason she's unqualified is that she has no experience in constitutional law. She has no practice handling cases of constitutional import. She has not spent any part of her career thinking about the Constitution for a living.
Because those are the cases where standard lawyer's methods can lead to either outcome!
There will be two problems with her lack of intellect and experience. First, she'll be isolated from the other Justices and will become close to her fawning law clerks. Second, these law clerks will push her in random directions that she won't have the intellectual or moral wherewithal to resist. Finally, she'll likely make decisions not for her preferences, but out of concerns for respectability and going with the middle path, which seems to have characterized her whole career. Conservatives think that something is definitely wrong with the Court and its jurisprudence and that one needs to bring to bear a coherent and controversial philosophy to the table to recognize the problem and have the moral courage to fix it. Because to fix it will require unpopularity, death threats, castigation in the NY Times and a lot of other experiences that Miss Congeniality seems to have studiously avoided in her career, in part as the epitome of the nicey-nice and anti-intellectual atmosphere of Dallas, Texas.
(Before you knock me as a blue-state snob, understand I practiced commercial litigation in Dallas for 5 years).
On almost any question regarding Harriet Miers, it seems to me that we don't really know enough to say. Those who attempt to criticize her as a lightweight are scolded by those who wish to extrapolate from a thin public record to exalt her.
At times like these, it may be wisest not to spout opinions but to demand that the White House release information so that we can have informed judgments. Otherwise it'll just be more back-and-forth with very little real basis except in imbecilic items like personal correspondence.
That said, I'm interested in the Supreme Court history that's been thrown up with the recent nominations, and wonder if anyone can think of a justice who did "approach constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk"? Has this been considered a successful method in the past?
That being said, I believe that most attorneys that have survived partnership track at a large firm have enough book smarts to be a justice on the supreme court. Whether you trust their judgement on any particular matter is a completely different question.
As a practicing lawyer (who is lukewarm on Meirs), it is a regular occurence to be faced with "bad facts make bad law" as the only explanation for the holding of a particular case. Someone who practices has to evaluate appellate opinions from a broad range of practical factual scenarios, judges are more often wearing the blinders. Whatever you may think of them philosophically, one only has to look at the enormous amount of litigation and uncertainty in the "Terry stops" area to realize that some judges have no ability to draft opinions thinking about implications beyond the facts of the case.
1. Is it appropriate to have a "general practioner" as a Justice? i.e. someone without a deep immersion in the fine points of Constitutional Law?
2. If so, does Ms. Miers make the grade?
Two distinct questions.
Btw, I've been rather impressed by how many conservative pundits have shown some intellectual conscience on this nomination, tho it only makes the holdouts even more distressing.
There's no reason why a general practitioner can't be a good justice. Robert Jackson was a tax lawyer before joining FDR's administration, but certainly his being SG and then AG provided him the opportunity to consider constitutional issues. Miers' role in the WH may have given her this opportunity also, but the positions taken by the Administration on constitutional issues doesn't inspire confidence in the person the President has said "shares his judicial philosophy."
Somehow, someone like Chief Justice Roberts is ok because he has spent a year or so on an appeals court, when that is probably 5% of his entire time in practice, but missing that 5% is crucial for her. On the other hand, those judges with significant experience as appeals judges are usually not considered because they have a judicial record. So, we seem to be at a place where a nominee for the Supreme Court needs to have spent, say, 5%-15% of his career on an appealate bench, no more, no less.
Frankly, I think that statutory interpretation is probably as important, if not more important, esp. to me, than being a cracker jack constitutional law scholor. The recent SC case that has the most effect on my life, as a patent attorney, is the Festo patent law Doctrine of Equivalents case. I have to deal with its ramifications every time I deal with patents and patent applications. Then there is the Lotus v. Borland software copyright (non) decision. That mess is still not cleaned up.
Arguably the average Con Law prof isn't going to have even 10% of the practice that she has had in statutory construction. Most of what normal lawyers deal with is how to interpret statutes, and not the precise limits of, as one suggested above, Terry Stops.
I guess in the rough justice of the world, a record of climbing up the greasy pole and receiving accolades of various sorts from peers and the boot-above does indeed indicate a fair talent. (Similar to law school grades , which may not really indicate who will be a good practioner but, in the absence of anything else, is a reasonable proxy.) So for the GP is it # cases won? size of firm managed? $$$ recovered for clients? number of committees chaired? peer-group ratings as an attorney? what? etc etc.
I don't think Roberts would be OK if he had only had a brief time on a COA. It was his long time practicing before the Court that made him well qualified.
Anyway, I actually think it would be good to have a distinguished former trial attorney on the Court. As others have pointed out, however, Miers was not a sufficiently distinguished trial attorney. Moreover, having been a distinguished trial attorney is not incompatible with also spending some time as a judge, or taking a high position in federal law enforcement, or writing several important articles, and so on.
So, my complaint is not with the "type" of attorney Miers has been. My complaint is that she is not a particularly well-qualified version of that type.
If by that you mean how many have a theory of what the Constitution means, all but Breyer.
Steve Susman's bio--of Susman-Godfrey, a Texas firm--was posted at confirmthem. I'm sure there are many equally good examples, but I'd say this gives you a starting point on an answer. In other words, it starts by claiming he is one of the best trial lawyers in the country, and by the end of it I am inclined to suspect that was not an overstatement.
I think that the clearest examples of constitutional theorists are Scalia, Thomas and Breyer.
Scalia has his basic thoughts written in A Matter of Interpretation, he discusses originalism and textualism frequently on the lecture circuit, his Casey dissent is a classic on the role of judges, and through his opinions and other writings, he has established that he is, to some extent, a constitutional theorist.
Thomas's opinions, particularly his concurrences and separate opinions, likewise carve out a theory of constitutional interpretation that includes more forceful criticisms of stare decisis.
Breyer has his new book, which I have not yet read, but which is billed at least as a response to Scalia. He's given lectures and debated publicly on the merits of certain interpretive sources (most notably international law and legislative history) in statutory and constitutional interpretation. I think it's fair to say that he's a theorist in that he's gone out of his way to articulate a theory of how to interpret the constitution.
For the others, I don't know enough to say. This is the part where the comment breaks down into what might be parroting the platitudes of others.
Souter -- seems to be enigmatic in the sense of being difficult to pin down, but when he writes separate opinions critiquing Scalia and Thomas, he is often good at criticizing them on their own terms. Perhaps he hasn't put "vision" out there (or perhaps he has -- I really don't know), but he has shown himself to be adept at dissecting the visions of others and thoughtful about theory in general.
Ginsburg - I don't know enough about her opinions to say. Her switch in Booker was really strange, but of course she's written many other opinions. I don't know enough to say more.
Kennedy - his recent flaky opinions strike me as civics lectures rather than expositions of constitutional theory. He clearly thinks that the Constitution is alive, soft and fluffy and that international law is awesome, but I'm not sure that I'd describe him as a theorist. I'm a bit more familiar with his work than I am with Ginsburg's but still largely unqualified to comment.
O'Connor - too difficult to pin down for me. She's clearly a pragmatist in some regards, more interested in standards than rules, and thoughtful in general. I don't know if that makes her a "theorist" or not.
Roberts - of course, I have no idea, and CJ Roberts said in his confirmation hearings something to the effect that the Supreme Court seems to have different theories for different constitutional provisions and that, while he understands that some provisions require a theory to interpret (what does "equal" mean in the context of "equal protection"?), developing and defending an overarching philosophy is more appropriate for an academic than a judge. Time will tell whether his jurisprudence bears out this thought.
For Miers, I have no idea what the answer is to your question. It reminds me of lots of summer associate memos I did a while back, where I would say "I looked hard, I'm confident that I was thorough, and I haven't found a case that says X, but I'd still be wary of saying that none exists." The best answer so far to the "how do we know she doesn't" question is that "we've seen nothing to indicate that she does."