The Court and the Legal Culture:

Orin rounds up the conservative response to Miers. The chronic complaint, and one that I share, is that this amounts to a squandered opportunity, one that is heightened by the fact that this follows on the heels of the Roberts appointment. So allow me a quick comment on my concerns about the Roberts-Miers ticket.

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. Thomas and Scalia have been doing the same thing for some time now, with their view of the law. This is, of course, precisely why Bork was taken down as well. Rehnquist, by contrast, may have changed the voting patterns of the Court but did not change the legal culture through intellectual leadership. Even worse, pick someone who supposedly "votes right" but has no developed judicial philosophy, and soon you have someone who doesn't even do that (Blackmun, Souter, etc.).

Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right." But neither of them appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture. I suspect that this is the source of the conservative outrage about Miers. In addition, historically those who come to the Court without a clear jurisprudential philosophy almost always end up moving left, which may add still further to the concern about her apparent lack of intellectual heft. Simply because she has stood up to the political criticism that she has received working in the White House does not mean that she will be able to withstand the intellectual criticism that she will receive. Writing a persuasive Supreme Court opinion that will hold a majority is a whole different ball game from stonewalling the Washington Post reporters.

Put another way, looking at Miers resume, I can see nothing in her career or her resume to suggest that she has ever thought in any meaningful manner about larger questions of law or judicial philosophy. She went to a perfectly good law school, but during an era where it is hard to believe that she was thinking much about larger questions of law. She had a distinguished legal career, but from all appearances, one in which she would have rarely had the opportunity or inclination to think seriously about the Court or its role in American society. In private practice, she proved herself most distinguished, it appears as an administrator and manager at her law firm--useful skills, but different from those needed on the Court. Her practice at the various iterations of the Lidell firm in Texas appears to be a conventional trial litigation practice. Finally, her primary responsibility during her time working in Washington has been as a Staff Secretary--again doing management and administration, not intellectual heavy-lifting. Or, as we say in these parts, doing "process" rather than substance (some might say less charitably, "a glorified paper-pusher"). There is simply nothing in her background to suggest that she will exert any intellectual leadership inside or outside the Court. At least Roberts, as a lawyer was engaged in the big intellectual issues of the day, even if his judicial philosophy is more incremental than systematic.

At the very least, she will have a heck of a lot of learning to do and will be forced, at the age of 60, to think about many, many difficult issues that she has never confronted in her entire life. I suppose it is possible for a 60 year old to start what amounts to a completely new career and learn a completely new set of skills for the first time, but.... She hasn't even been practicing law for many, many years, but rather serving in either policy or administrative roles. At the very least, if she is to ever exercise any intellectual leadership of the there is going to be a substantial learning curve that suggests that it will be several years before she has anything meaningful to say. This in contrast to Luttig, McConnell, Brown, Jones, Batchelder--well, at least 100 other people who are at least as well-qualified, but who would not need on-the-job training. It is really quite difficult to imagine that she will ever be in a position to exercise any substantial intellectual leadership of the Court.

These appointments thus seem to confirm a common criticism of this President--that he is uninterested in ideas and interested only in power. While they may both turn out to be perfectly fine Justices, both Roberts and Miers appear to be both uninspired and uninspiring in terms of providing intellectual leadership on the Court. The Administration seems to be narrowly obsessed with winning minor tactical victories (here, an easy confirmation of a stealth candidate) while consistently failing to follow-through with meaningful long-term strategic victories (an opportunity to change the legal culture).

In the end, of course, the lack of a strategic vision means that even the tactical victories tend to be reversed (for instance, temporary tax cuts will likely fall victim to the inability to control spending). As Reagan understood, you have to first have the long-term strategic vision in mind so that you know when to make tactical compromises. Ideas are the long-run motivating force of history. Tactics without strategy, by contrast, leaves you rudderless.

Picking someone who "votes right" without exercising intellectual leadership is a squandered opportunity. Even worse, if you try to pick someone who votes right without knowing why, soon you may have neither.


I have been rightly rebuked by Orin and others for seeming unduly harsh on Roberts, and I certainly did not mean to imply that Miers and Roberts are of similar experience or ability. Let me make this clear--Miers is no Roberts, and I recognize that. What I was trying to say in the first post, perhaps inelegantly, is that although Roberts is impeccably qualified and brilliant, his judicial philosophy remains somewhat of a blank slate and conservative enthusiasm was somewhat muted, and that most seem to believe he would be more in the Rehnquist mold than the Scalia/Thomas mold. The implicit deal, as conservatives seem to understand it, was to go along with Roberts for Chief, who seems to be excellent but is not exciting among conservative stalwarts, and then the second nominee would be in the McConnell/Jones/Luttig mode.

So, I simply meant to indicate that I think the backdrop of the relatively temperate enthusiasm among conservatives for Roberts on the grounds that I argued, may help to explain the extreme conservative frustration with Miers. I certainly did not mean to imply in any way that Roberts and Miers were comparable. My apologies for the lack of clarity.