Miers

I'm not quite sure what to think of the selection of Harriet Miers as the next nominee for the Supreme Court. I share the reservations of many people that she may be too much of a blank slate, that it looks too much like cronyism, etc.

But for the reasons expressed by Beldar -- who's on a roll -- I'm also dubious of the oft-heard claim that she's not "qualified." She was incredibly successful in private practice. Who's to say that such experience makes a lawyer less "qualified" than a series of law review articles setting out a grand jurisprudential theory? Indeed, I suspect that many of the people making the "unqualified" claim are not thinking about just how much of the Supreme Court's work is really "lawyer's work," so to speak.

For every hot-button case about abortion or the Commerce Clause that comes along, there are probably 10 cases (and hundreds of cert. petitions) involving detailed and technical questions about ERISA or the Federal Rules of Civil Procedure or the Longshore and Harbor Workers' Compensation Act or Robinson-Patman or the Sherman Act. Hardly anyone -- least of all constitutional theorists -- is experienced in all of these areas of law. What's important is whether a judge can pick up the basics of a new area of law quickly. While I don't know for sure what area(s) of law Miers focused on, many practitioners also have to pick up new ideas fairly quickly, particularly when lawsuits involve many different areas of law. Perhaps the antitrust suit turns out to involve a constitutional issue over punitive damages. Perhaps the breach of employment contract case also involves six different laws governing employment. Perhaps the tax case also involves questions of due process and how to construe the statutes governing civil appeals.

Another substantial portion of the Supreme Court's docket involves criminal law, but Miers isn't unusual in having no experience in that area. As far as I know, none of the Supreme Court's sitting Justices (except for possibly Souter) had any experience either as a prosecutor or defender. (Souter had been Attorney General of New Hampshire.)

Another thing to think about: Who makes a better CEO of a company? Someone who went to the top schools, got an MBA and a fancy consulting job, and was recruited right into the top ranks of management at an early age? Or someone who spent a good bit of time in the trenches, working her way up from the lower levels of the company, and getting a lot of first-hand knowledge of what the company really does on a day-to-day basis? Could be either one, right? Aren't both types of experience valuable in their own way?