Defending the nomination of Harriett Miers in the WSJ, Ruth Wedgwood remarkst (subscription required):
The Court is well-endowed with ex-academics and dirigiste ex-government lawyers, but few justices have worked in the private sector or helped to counsel a business for any perceptible length of time.Setting aside the merits of the Miers nomination, I think this is a point worth some elaboration.
Reading some of the commentary on Miers' qualifications (or lack thereof) to be a Supreme Court justice, one could get the impression that a fully formed theory of constitutional interpretation is the most important, if not the exclusive, qualification for a prospective Supreme Court nominee. I think this view is mistaken. Indeed, if anything the current Court, as a whole, lacks significant experience in many other areas of law that are just as important to the Court's work.
The majority of the Court's docket each year has little to do with Constitutional Law. Most cases are statutory cases. True constitutional law cases implicating founding principles account for a small minority of the cases before the Court in any given year. Many (if not most) ConLaw cases concern crimminal procedure, rather than the sorts of subjects covered in the standard ConLaw curriculum -- and these days criminal procedure is effectively its own separate field. (In my experience, most criminal procuedure professors are not experts in basic constitutional law and vice-versa (current co-bloggers excepted, of course.)
One could argue that the non-CrimPro constitutional law cases are inevitably, if not inherently, the most consequential cases before the Court. Perhaps, but this is hardly evident. Decisions about the application of federal jurisdictional statutes, class action certifications, or finality requirements have tremendous implications for the practice of law. Looking at last term, it is not at all clear to me that the Court's decisions in the two Ten Commandments cases last term are any more consequential than National Cable & Television Association v. Brand X Internet Services or Bates v. Dow Agrochemicals, cases concerning judicial deference to agency interpretations of federal statutes and statutory preemption of state common law tort remedies, respectively.
However important it is for a new Supreme court justice to have a fully formed theory of constitutional interpretation, such a judicial philosophy would be of little help in deciding the majority of cases. An overarching theory of constitutional interpretation is valuable, but it hardly tells one how to evaluate statutory conferrals of federal jurisdiction, resolve contractual disputes, or determine the proper standard of review in an antitrust case.
My point is not the constitutional law is unimportant for prospective Supreme Court justices. I just think that those of us who teach and write in the area are inclined to exaggerate its importance on the Court. I care about a prospective justice's approach to constitutional interpretation as much as the next legal blogger, but it's hardly the only question I consider important in considering a nominee. Indeed, I would argue that a Supreme Court with a wider array of experience would be better than one made up of nine experts in constitutional law. Experience as a prosecutor or criminal defense attorney is likely makes a prospective justice more qualified to consider criminal procedure cases than a unified theory of federalism, representation-reinforcement, or judicial review of legislative action.
My point here is not that Miers is qualified to be a Supreme Court justice. I merely wish to suggest that some of us academic blogger-types have exaggerated the importance of constitutional law experience for prospective Supreme Court justices.
Of course, it should go without saying that we should still demand the best within these fields (eg, merely being a prosecutor is not enough--give me AGs, DAGs, or heads of the Criminal Division, not just someone who once was an AUSA).
But it's back to the "list of 100" problem: if anyone objective had made a list of 100 reliable Republicans who were top lawyers, professionally not by virtue of being a political lap dog, would Miers have made that list? At what level? With whom above her?
One should not overlook the fact that if the Supreme Court screws up the interpretation of a statute or regulation, Congress or an agency can always amend the statute or regulation. Not so the Constitution.
So this logic would that the several hundred living people who have been managing partners at large law firms are the creme de la creme. Out of that creme, there can't be more than a hundred who have demonstrated conservative tendencies and a personal relationship with President Bush.
If the Court gets a statute "wrong," the impact of the decision can be changed by an act of Congress. One possible such example is the recent case of Cooper v. Aviall, a CERCLA case in which I believe the Court surprised a lot of practitioners in ruling that CERCLA section 113 does not permit a contribution action unless a party is being or has already been sued in a cost recovery or abatement action. The main argument against that position had been that it undermines the incentives for voluntary cleanups by potentially responsible parties. The Court ruled that the plain language of the statute simply does not permit that interpretation.
However, if it is truly that important the contribution actions under CERCLA be availble to parties that voluntarily clean up contaminated sites, Congress can simply amend section 113.
Constitutional decisions cannot be so easily remedied.
Dan
Now, we are seeing a swing towards analyzing the requirements for the job rather than the characteristics of the incumbents. This is progress.
I am not saying Myers would make a good justice. I don't know her well enough to make that call. I do know requiring her to be among the top 100 lawyers in the country is a ridiculous standard. No one can put together such a list -- what, is there some test all attorneys take each year that allow them to be ranked? That does not mean that it is impossible to ask and answer whether Myers was a major league talent. By any reasonable standard, she was.
--
(2) I do think that con law particularly a Supreme Court responsibility. As to its other tasks, if it makes an error, it rarely affects more than a rarely affects more than a narrow field of law (ERISA, class actions, Securities), and if Congress doesn't like it, it takes a simple majority to correct. Correcting a constitutional error is not easy.
a) A coherent and well-documented philosophy of constitutional interpretation which presents no inherent contradictions against one's parallel philosophy of statutory interpretation, and in which the relevant weight and approximate scope of stare decisis is coherently explained.
and,
b) A demonstrable commitment to originalism (demonstrable in the sense of a paper trail rather than word-of-mouth).
Our new Chief Justice did not meet these criteria, despite his stellar grasp of the law, and so I opposed him. Ms. Miers does not meet these criteria, so I oppose her. There may or may not be other reasons to oppose her, but personally, I don't feel the need to reach those concerns. She fails at the first hurdle.
We were promised another Scalia or Thomas. We have been given two nominees are neither. Another Scalia or Thomas - not someone who may or may not vote with them, not evangelicals, not catholics, not lawyers, state bar association presidents, or ivy league professors, but another Scalia or Thomas. To suggest Miers is in the mold of those to Justices is a grave insult to them. There are those of us whose support for Bush was based solely on this promise. Which rather leads to the question: what WILL it take to fix what's broken with the Supreme Court? Are Repulbicans holding the White House and a Senate majority not enough? What is? What does it take? Something has gone seriously awry here.
History proves great nations can slip away, and the beginning of our end will be when we think there are equivalents or durable substitutes for a constitutional compass.
Mr. Walser: Thanks for the plug, but unfortunately a local cable TV outlet in Virginia got to beldar.com before I did, so my humble blog is beldar.org, in which there is considerable irony both because it's a solo blog and because I tend to be quite disorganized. I've been relying on others' reporting of the National Law Journal's listing of Ms. Miers among the 100 top lawyers and 50 top women lawyers, rather than having sourced that material myself, however. And I saw a comment somewhere, I forget where, to the effect that in at least one such listing, one of the reasons listed to explain why Ms. Miers was on the list was her representation of George W. Bush, the then-Governor of Texas, which the commenter contended to be circular logic; I'm more inclined to categorize it as self-fulfilling prophecy, but I take his basic point. But also at about that same period of time -- mid-1990s -- she was finishing her stint on the Dallas City Council, beginning her successful run for and service as President of the State Bar of Texas (and subsequent ABA involvement, largely in trying to return that group to its apolitical roots), leading her law firm into a risky but ultimately successful merger with a like-sized cross-state rival, and, finally, serving as head of the Texas Lottery's management. Only the last of those was arguably related to her representation of Pres. (then-Gov.) Bush, so how big a factor was that in her selection to the lists? I don't know, and don't think anyone can know for sure at this point. Regardless, though, I think even her most fierce critics would have to agree that both her state and national profiles were rising steadily in prominence throughout the 1990s, mostly in ways unconnected to Mr. Bush. As a lawyer who does commercial litigation in Texas, for example, I certainly was aware of her long before I had any idea that she had ever represented George W. Bush (and I certainly knew who he was at the time, too, as my folks had been involved in his unsuccessful House of Representatives campaign out in West Texas years earlier). That partly explains my amazement at those who've suggested that she was some obscure nobody whom the President plucked from utter obscurity, or statements of the sort that she was a "third-rate lawyer at a second rate firm" who'd never handled any big cases. Those sorts of statements are simply wildly counterfactual, or to the extent they're statements of opinion, completely unsupportable ones.
Simon D's point that con-law mistakes are harder to correct is of course a very good one. But I don't see it as inconsistent at all with our host's point in his original post, which was (if I understood it) that as important as constitutional law may be, it's being given too much weight in most people's discussions about what qualifies folks for the Court, and that other areas of law (in some of which this particular nominee may be more broadly and strongly grounded) have been given too little weight. And it's for good reason that in many (perhaps most? I lack personal knowledge to say) law school cirricula, con law, although taught as a 1L subject, is a one-semester, four-credit-hour course, whereas torts, contracts, and property are two-semester, six-credit-hour courses. Is that still the case at most law schools, or am I showing myself to be hopelessly out of date?
Somehow I find this less than reassuring, and if anything, I am less now even inclined to support her than I would otherwise be. Car dealers never engage in price fixing, Microsoft never sells defective software, Walt Disney needs to have its copyrights reinstated forever, and who needs pesky restrictions on debt collectors, after all?
I think Juan non-Volokh is absolutely right. And, while I await the hearings to decide whether HM is truly qualified, I must say the "no one but a true constitutional law scholar" arguments make me lean much more in HM's favor. I have seen too much drek on non-constitutional issues (and also a failure to deal with non-constitutional issues decided in the lower courts) from SCOTUS--issues that affect many Americans, to make me comfortable with no-one on the Court with a true understanding of the issues.
It is out-of-date in my experience; my law school teaches con law as a one-semester, 4 credit hour course to 1Ls, but it does the same with contracts and property, and torts, civ pro and crim get 3 credits. I haven't talked to any students at other law schools who have any course for two semesters, though UVa does teach con law at the undergrad level in two semesters (federalism and separation of powers; civil rights and liberties).
OTOH, I found this quote from the Washington Post article amusing:
"Until 2001, Miers was a director of the Committee for a Qualified Judiciary, a Texas political action committee devoted to electing conservative judges."
heh.
Willard,
I don't think anyone has argued that it is easy to become a Managing Partner. On the other hand, the Managing Partner is not necessarily the best lawyer in the firm (indeed, Managing Partners necessarily work less as lawyers because of their other responsibilities). Rather, some of the key criteria are business and administrative skills, along with a heavy work ethic and a lot of ambition. Accordingly, you can't really claim that Miers was the top lawyer in her firm, let alone one of the top lawyers in Texas, let alone one of the top lawyers in the country, based on her becoming Managing Partner. Finally, as you suggest, the universe of former Managing Partners is still very large, because there are a lot of firms ... what distinguishes Miers in that group is her personal relationship with Bush.
You know, you are right. Who needs Con Law? The above cited "experience" is sorely needed in our nation's highest court.
It will be interesting to see how this all plays out. I have seen, for example, people try to argue that if she represented Microsoft, she must be one of the best lawyers in the country. People familiar with the legal profession, of course, know that hundreds and maybe thousands of lawyers around the country have represented Microsoft at one point or another. More broadly, we have seen people do a similar debunking with the other supposed evidence that she was one of the top lawyers in the country (eg, with the Top 100 Lawyers argument discussed at this site).
My general sense is that if conservatives were happy with Miers, this snow job might have worked with at least a critical mass of supporters. But with conservatives doing their own "fact-checking," my impression is that these arguments are failing to persuade.
Oh, and as to Con Law: at my school, it's two semesters/6 credits, 3 on the structural/jurisdictional stuff, 3 on the civil rights stuff. Torts is one-semester, 4 credits.
Some constitutional decisions are easier to "correct" than others, namely those decisions that decline to overrule the the judgments of our elected representatives. Kelo, for example, does not force any govenmental body actually to exercise eminent domain. To be sure, one's property under a Kelo-regime may be at risk from federal, state, and local authorities, which multiplies the potential for mischief and makes one-stop shopping for "correction" more difficult. But, even if Kelo is not correctable by Congress alone (query whether Congress could de facto reverse much of Kelo with Spending-and-Commerce-Clause-grounded anti-Kelo legislation), any State can rein in both itself and its subdivisions.
Thus, lots of people felt strongly about the Wards Cove decision, and they included constituencies important to both parties, so Congress changed the law. By contrast, lots of people feel strongly about Roe and Lawrence (on both sides) but even if a decided majority of the population (say, 60%) opposed both decisions, the likelihood is that nothing could be done about it through the amendment process.
My guess is that the general population couldn’t care less if the Court gets section 113 of CERCLA (or any equivalent statutory provision) wrong. If you doubt it, you might want to try an experiment: at the next party you’re at that is not attended mostly by lawyers and/or policy geeks, try striking up a conversation about the injustice the Court has occasioned by its wrongheaded section 113 jurisprudence. Feel free to substitute any decision misconstruing a similarly obscure statute in your area of specialty (i.e., no fair using the Defense of Marriage Act or its ilk). Then report back to the VC about whether the public shares your outrage. I suspect the experiment will prove especially enjoyable to those who like to spend their time at parties standing alone in a corner talking to themselves.
Thus, lots of people felt strongly about the Wards Cove decision, and they included constituencies important to both parties, so Congress changed the law. By contrast, lots of people feel strongly about Roe and Lawrence (on both sides) but even if a decided majority of the population (say, 60%) opposed both decisions, the likelihood is that nothing could be done about it through the amendment process.
My guess is that the general population couldn’t care less if the Court gets section 113 of CERCLA (or any equivalent statutory provision) wrong. If you doubt it, you might want to try an experiment: at the next party you’re at that is not attended mostly by lawyers and/or policy geeks, try striking up a conversation about the injustice the Court has occasioned by its wrongheaded section 113 jurisprudence. Feel free to substitute any decision misconstruing a similarly obscure statute in your area of specialty (i.e., no fair using the Defense of Marriage Act or its ilk). Then report back to the VC about whether the public shares your outrage. I suspect the experiment will prove especially enjoyable to those who like to spend their time at parties standing alone in a corner talking to themselves.
Of course that doesn't give Miers a pass as her background, so far as I can see it, iappears awfully narrow.
But is public interest really the right measure of importance?
To put this point another way, the proper role of the federal courts is to adjudicate specific cases and controversies (as defined by Article III). Perhaps only a small fraction of those cases will generate widespread public interest (this may well be true even of Constitutional cases, since probably only a fraction of those generate much public interest). But can we really say that a judge's ability to decide the few cases and controversies which generate great public interest is more important than his or her ability to decide the majority of cases which draw little public interest?
Personally, I'd say such an attitude was unfair to the litigants in those less "interesting" cases--who are no less deserving of the best possible judges--and also suggestive of the wrong view about the role of judges (namely, it suggests their most important job is deciding the great issues of the day, rather than applying the law to specific cases and controversies as they arise).
Do your civil engineering peers also think that, say, electrical engineers should be allowed to design bridges and dams? I mean how hard can that be ... you just have to keep the cars in the air or the water on one side, right? Doesn't sound very complicated to me.
In designing a republic, it would seem good to write the constitution so that educated citizens can follow decisionmaking based on it. Much of the law is necessarily intricate and a matter for specialists, but imho, whenever possible, legal reasoning with society-wide effects should be accessible to the electorate in meaning as well as text. If time after time a citizen, upon hearing about decisions like Kelo or Raich, opens her copy of the constitution and says wtf (what's this foolishness), that ain't good...
(Initially the cronyism of the Miers pick bothered me more than her credentials. As time passes, the advocacy for Miers is serving to increase my skepticism about her.)
Incidentally, have we ever figured out who switched sides in Kelo? I remember that there was a lot of discussion that O'Connor's dissent reads like an opinion for the court that lost its majority...Who buckled?
Not without taking a very expansive view of the commerce clause power, one which I do not take.
Indeed, when one of our kittens were at death's door recently, I know the first thing on our minds was to get him to a superbly ualified and experienced veterinarian, rather than a personal friend who was a good evangelical to try and save him. Likewise, when I fly, I always try to seek out airlines that employ actual pilots, rather than air hostesses who've often watched a pilot move those funny control thingies, and when I go to the doctor, I feel comforted to know that I'm being examined by a doctor rather than a nurse who's willing to take a "crash course" in being a doctor.
Bu I guess I'm just one of these weird "elitist" people, and funnily enough, I'm sure that Hugh Hewitt is too when he's not shilling for the White House.
"But it's back to the "list of 100" problem: if anyone objective had made a list of 100 reliable Republicans who were top lawyers, professionally not by virtue of being a political lap dog, would Miers have made that list?"
I'll go further. If you were to list the top 100 Republican lawyers in any specialty area of law, would she have made the cut? I still don't think so. As I understand it, she was largley an administrator at her law firm. While that's a skill set that far too many lawyers and law firms don't have, I'm not sure it's one that qualifies a person for the Supreme Court.
That does sound nice. Here is the problem: the world is a complicated place. So a text can be simple in principle, but complex in application.
Take this relatively simple piece of Constitutional text: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." That isn't hard to understand, right?
But in the real world, there is an infinite variety of searches and seizures. So which are reasonable, and which are unreasonable? Does the nice simple text tell you?
One possibility is to just leave it up to each judge in each case to use their own after-the-fact judgment about what would have been reasonable. That, of course, is a pretty bad idea--in the real world, the people doing the searching and seizing need relatively predictable rules so that they can operate within those rules.
So over time, a complicated set of precedents develops, which gradually works out the rules for those operating in the real world. Unfortunately, the world keeps changing, creating new situations (eg, infrared searches, DNA testing), so the rules have to evolve too. Of course, we always have the option of just dumping all this caselaw and going back to each judge making their own decision--but that is still a pretty bad idea.
And this is just one of many, many examples. The basic point is always going to be the same: there is no way to write a simple constitution that tells judges exactly what to do in every single case because the world is just too darn complicated for that. So you can have long, complicated, technical constitutions (and some societies opt for that), or you can have short, simple, general constitutions like ours ... but then you still have to fill in the rules to deal with the vast myriad of actual situations.
So, in neither case will you get a system in which being a judge is easy. The only way you get that, in fact, is if: (1) judges can do whatever they want; or (2) judges have to do what someone else wants (like judges in a dictatorship). But being a judge who is actually bound by law will always be a difficult job, because the world is just too complicated for law to be simple.
As to whether the general public interest should trump the interest of litigants, obviously a judge should be able both to decide cases involving less glamorous issues and those involving the great constitutional issues of the day. No one would argue that we should select Justices who are demonstrably incompetent at the former because of their proficiency at the latter, or vice versa. I think John Roberts is demonstrably able to do both. I’m not sure about Miers.
That said, I’d say it makes sense to pick someone who is likely to be better at the task that most people consider more important (deciding what the Bill of Rights means) and maybe not so good at the task that most people (aside from the relatively small class of litigants and those similarly situated) don’t care too much about (deciding what, say, section 113 of CERCLA means).
As to whether the general public interest should trump the interest of litigants, obviously a judge should be able both to decide cases involving less glamorous issues and those involving the great constitutional issues of the day. No one would argue that we should select Justices who are demonstrably incompetent at the former because of their proficiency at the latter, or vice versa. I think John Roberts is demonstrably able to do both. I’m not sure about Miers.
That said, I’d say it makes sense to pick someone who is likely to be better at the task that most people consider more important (deciding what the Bill of Rights means) and maybe not so good at the task that most people (aside from the relatively small class of litigants and those similarly situated) don’t care too much about (deciding what, say, section 113 of CERCLA means).
I was aware of the larger context. My point would be the same: if some statutory or regulatory issue decided by the Court doesn't capture public interest and thus isn't overruled by an act of Congress or the agency, does that mean the decision is less important? I don't think that is necessarily the case.
And I would also repeat the argument I suggested above in reply to your last paragraph: it seems to me that once you start saying things like it "makes sense to pick someone who is likely to be better at the task that most people consider more important . . . and maybe not so good at the task that most people . . . don’t care too much about," you are implicitly taking a stand on the most important role of judges in a democracy. And I for one am not sure I want to take that stand--I'd rather emphasize, in fact, their role in dealing with specific cases and controversies, not their role in deciding the great issues of the day.
More generally, and less hostilely, why wouldn't the politicking and negotiating skills needed to make managing partner be useful on the Supreme Court? In fact, it seems to me that this whole discussion has been flawed because no one has proceeded scientifically by (a) delineating a set of criteria for "effectiveness" as a S.C. justice, (b) determining what justices historically have met those criteria and (c) describing the pre-nomination characteristics of those justices.
Here you go: lawyers in academia and government are generally lazy drones who don't have the work ethic that is needed to succeed at big firms.
Although I'd actually object to "drones". They can be smart and creative thinkers, but I'd agree that one of the most common reasons they aren't in firms is that they wanted better hours.
Your turn!
Incidentally, as I hope I have made clear, I don't think academics and government lawyers are somehow more qualified for the Supreme Court as a type than firm lawyers. As I have frequently stated, I would support having a mix of different types on the Court, including former firm attorneys, but would demand the very best of each type. I also see no need to avoid "cross-training" ... why not look for nominees who have excelled as more than one of these possible types?
On politicking and negotiating: many general skills are potentially relevant. Relevance, like distinction, is a matter of degree. So, my first reply would simply be that these are secondary considerations that cannot be used to make up for a lack of more directly relevant experiences and accompishments. My second reply would simply be that the political and negotiating skills of managing partners does not distinguish them from each other, so you are still talking about a qualification that is insufficiently distinguished.
And despite the lack of "scientific" support for these claims, let us start with this ... are you really disagreeing with these propositions? Or are you just arguing for the possibility of a contrary view in the abstract?
Because I really don't think anyone has seriously argued that Miers is somehow one of the top few private practice attorneys in the country. I think they like to argue instead that she is a TYPE of person that should be considered qualified, but somehow no one is quite willing to assert that she is really the top candidate within that type.
I think generally people here are downplaying the importance of the Court's constitutional decisions. No one can convince me that a case like Roe v. Wade (nullifying abortion laws of most states), Baker v. Carr (forcing every state at every level to change its election districts significantly), and Lawrence v. Texas (basically creating the gay marriage issue) did not have societal implications far more vast than any statutory case.
You say you’d “rather emphasize [the Court’s] role in dealing with specific cases and controversies, not [its] role in deciding the great issues of the day.” Unless there have lately been significant developments I’ve missed, isn't it the case that the only chance the federal courts get to address any great issues of the day is when they are at issue in some cognizable case or controversy?
So to the extent you are suggesting a dichotomy between dealing with cases/controversies on the one hand and resolving great issues on the other (and you may not be, but your post tends to imply this), I don’t buy it. The court decides numerous cases/controversies, most of which are of immediate importance only to a relatively small number of people, and some smaller portion of which are regarded as highly important by a large number of people.
I suppose one could simply say “I want judges who are really good at deciding the great majority of cases/controversies that are important to relatively few people and don’t care so much if they’re good at resolving the minority that most people consider important.” This is, I guess, a legitimate view, although one with which I disagree. Is this what you mean when you say you want to “emphasize [the Court’s] role in dealing with specific cases and controversies”?
I think it's also important to avoid another false dichotomy: a demonstrable expertise in Constitutional interpretation does not necessarily impair a person’s ability to understand and interpret other law. People like Judges Luttig and McConnell have both demonstrated the ability not only to (1) interpret the constitution, but also (2) to interpret the kind of statutes involved in the majority of cases accepted for review by the Court. In other words, I think we can safely assume there's little chance they'd freeze up when confronted by the mysteries of the United States Code. Perhaps Ms. Miers, like they, possesses both these skills, but I suspect that one major reason there is today so much emphasis on skill (2) is that there is no evidence whatsoever that she can do (1) well, and at least a presumption by virtue of her career as big firm litigator that she can manage (2).
You say you’d “rather emphasize [the Court’s] role in dealing with specific cases and controversies, not [its] role in deciding the great issues of the day.” Unless there have lately been significant developments I’ve missed, isn't it the case that the only chance the federal courts get to address any great issues of the day is when they are at issue in some cognizable case or controversy?
So to the extent you are suggesting a dichotomy between dealing with cases/controversies on the one hand and resolving great issues on the other (and you may not be, but your post tends to imply this), I don’t buy it. The court decides numerous cases/controversies, most of which are of immediate importance only to a relatively small number of people, and some smaller portion of which are regarded as highly important by a large number of people.
I suppose one could simply say “I want judges who are really good at deciding the great majority of cases/controversies that are important to relatively few people and don’t care so much if they’re good at resolving the minority that most people consider important.” This is, I guess, a legitimate view, although one with which I disagree. Is this what you mean when you say you want to “emphasize [the Court’s] role in dealing with specific cases and controversies”?
I think it's also important to avoid another false dichotomy: a demonstrable expertise in Constitutional interpretation does not necessarily impair a person’s ability to understand and interpret other law. People like Judges Luttig and McConnell have both demonstrated the ability not only to (1) interpret the constitution, but also (2) to interpret the kind of statutes involved in the majority of cases accepted for review by the Court. In other words, I think we can safely assume there's little chance they'd freeze up when confronted by the mysteries of the United States Code. Perhaps Ms. Miers, like they, possesses both these skills, but I suspect that one major reason there is today so much emphasis on skill (2) is that there is no evidence whatsoever that she can do (1) well, and at least a presumption by virtue of her career as big firm litigator that she can manage (2).
Thanks for your reply. Unfortunately, I am unable to respond point by point just now. I'm also neglecting to acknowledge where my views overlap with other commenters'.
Certainly it is not easy to be a good judge. Is it necessary to be a conlaw expert to be a legitimate SCOTUS nominee?
Some or all of the Supreme Court's most important decisions involve creating new precedents or reversing existing ones. For such cases, it may not be essential or even desirable for all the justices to be constitution specialists. I suspect that having a SCOTUS consisting exclusively of lifelong conlaw gurus can facilitate the kinds of decisions which leave the public astonished or indignant, thereby reducing the political legitimacy of the court and impairing its long-term effectiveness. Like you I don't favor a rigid hyperdetailed constitution; however, in a system based on incremental changes to a body of precedent, a sequence of such changes, each of which is minor and innocuous in itself, can lead to--for lack of a better word--unhealthy long-term outcomes. One can plant every single tree optimally and end up with an unsatisfactory forest.
I repeat my belief that, wherever practical, SCOTUS decisions should be justified in terms of first principles, i.e. the Constitution, in a manner intelligible to the educated public. That's good for the entire body politic. (Full disclosure: on the few occasions that I read a SCOTUS opinion, I invariably lose the motivation to finish it. That's partially my fault, but not entirely.)
While I have no problem with a nominee outside the conlaw circle, I suspect that cronyism is the driver for the Miers choice.
Salaryman,
First, I absolutely agree with your pointing out this is a false dichotomy.
Second, to clarify, my point is not that the cases which draw the most popular interest are necessarily less important than other cases. My point, rather, is that I think it shouldn't matter to the judge, and it shouldn't matter to us when picking judges, which cases are the most "interesting". Part of why I think that is that in my experience the more "interesting" cases are not necessarily more important in terms of their actual impact on people's lives (in the legal sense). Rather, they are often "interesting" because of some larger political context, but I think that context should be outside the range of relevant considerations for judges, and for picking judges.
In other words, I think we should discourage the notion that the political context is what should matter, and encourage the notion that what should matter is the individual interests actually before the court. If I was confident that was already a widespread notion, I wouldn't have a problem talking about the Court's "most important" cases. But since I think we all too often lose sight of what should be important to the courts, I do not want to encourage the practice of treating some cases as more important than others due to the degree of public interest they attract.
First, empirically, I don't think it is true that judges with little experience in Con Law are more likely to depend on intelligible first principles rather than succumb to complicated, fact-dependent tests that end up perplexing and sometimes angering the citizenry. And I think that is true for the basic reason that I articulated: the world is messy and complicated, and the facts of individual cases can quickly lead both the experienced and the inexperienced into complicated views and complicated, fact-specific tests.
Rather, I think that applying a consistent and intelligible first principles approach in the face of complicated and messy cases is quite hard, and I believe that such a goal is most likely to be achieved by those who have already had to apply that approach, and to defend those applications, to a varied series of prior problems.
That said, personally I'm not completely opposed to the balance-test/fact-specific Justices, at least as a minority on the Court. But if that is what you are trying to avoid, I think choosing Justices without considerable experience in articulating, applying, and defending a consistent set of "first principles" is the last thing you should do.
I am quite confident that that is factually inaccurate, and that Mr. Fund's source will be proven wrong on it. It's the kind of thing that a very pompous, very poorly informed lawyer from NYC might say. It reflects a very, very poor understanding of the kind of practice Ms. Miers' firm has, and I base that not on personal experience with her, but my examination of her reported decisions and my personal experience with her firm.
Are there more qualified candidates that Miers? Sure, always are, always will be
But someone here on the board was asking for the impeachment of Bush because
He somehow violated constitutional law with her nomination. Well no not so much.
Maybe it was the federalist papers, whatever.
Impeachment? Let’s look at that, and, qualifications.
Lets examine Kelo. The forbidden activity for the govt to take my property.
See, everyone calls it the bill of rights, true, but in reality my ‘rights’ are protected
By enumerated restrictions on the power of govt. So, in Kelo, we have 5 Judges deciding
That in fact, contrary to specific language barring the govt from taking property from one
private person, and selling it to another private person, its OK??? Judges not enforcing the constitution, should be impeached. The esteemed judges that affirmed this meet many of the qualifications and experience noted here. They just cant read the takings clause in the constitution.
Or, maybe, deciding that elected officials passing a law to execute 16 and 17 year olds in extraordinary circumstances? Well, no. Seems the best and brightest we have on SCOTUS have determined the people,(who elected the persons writing the law, and the person signing it into law) are just silly. And gee, other countries don’t do it, and International law says we shouldn’t (or face a severe wrap on the knuckles). These are great constitutional scholars? I see 5 more justices up for impeachment.
Of course freedom of speech applies to a girl taking her clothes off in a bar, is free speech, but taking out an ad in the newspaper supporting my favorite running for Senate, 60 days before an election is not free speech.
Qualified? Yeh . We got a bunch of qualified on the bench now. And Miers whould be worse? Sure