Tuesday, October 04, 2005


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?


Blogger Crank said...

I agree that Miers' experience is valuable - I weep at times for the lack of practical experience the Court sometimes show - and I haven't entirely made up my mind yet, either. But given her lack of academic pedigree and her lack of demonstrated expertise or even interest in the field of constitutional law, on which the Court obviously has an outsized and non-correctible influence, I'm very uncomfortable with considering her qualified based solely on years of private practice.

12:17 PM  
Blogger JACK said...

I agree with your post, Stuart, but the real problem is a lack of information. If these hearings weren't so much a charade, it might be possible for people to gain comfort about the jurisprudential approach an "unknown" quantity would use when on the Supreme Court. But we don't get that from these hearings, typically. So if you don't get answers to questions, and you are not going to get her writings from the White House (because of A/C privilege) and she hasn't published, we are left with trusting a president's predictive powers. The track record isn't very good on that.

7:26 PM  
Blogger Stuart Buck said...

Bush's track record in other regards may be dubious, but doesn't he have a virtually unblemished record in putting solid conservatives on the bench? Well, I actually don't know about all of the district court nominees, but think about McConnell, Jeff Sutton, Bill Pryor, Janice Rogers Brown, Leon Holmes, Paul Cassell, Miguel Estrada, Jay Bybee, Priscilla Owen, Michael Chertoff, Claude Allen, Brett Kavanaugh, Steven Colloton, Mark Filip, etc. And as shown with Pickering and Pryor, Bush has been willing to go to the mat, i.e., to use the recess appointment power.

8:43 PM  
Blogger JACK said...

Stuart, you are right, about those other appointments. But are they truly analogous? Meaning, did you not have other information than the president's endorsement of say, a McConnell, to know something about his jurisprudence and what type of judge he would make? Similarly, although we've seen a new level of politicalness to even district court positions, isn't part of the reality of the situation that Supreme Court nominations receive a different level of scrutiny and those nominations were made by the president with a far different public approval rating and political capital? When it comes to questions of moral certainty -- which this is one, how confident are we that the nominee is worthy of serving as a judge -- one wants to see a convergence of all sorts of indications in a given direction. I think you had far greater chance of that with the other nominees you have mentioned than this one.

12:17 AM  
Blogger Thomas said...

Stuart, my understanding is that Kennedy and Rehnquist both practiced a bit of criminal defense work. See this month's Atlantic, letters section

4:31 PM  
Blogger HR said...

I don't think the question ought to be whether she is qualified, but whether she is the most qualified.

Bush (41) claimed Thomas was the most qualified person he could find for the job, as did 43 with this nomination. We know that is not true (it wasn't true in 1991 either), and that is what some of us find irritating.

Most of the people that Stuart mentions who were appointed to the lower courts are more qualifed than this nominee. And this nomination is a slight by the WH to those highly qualified people

6:31 PM  
Blogger Osvaldo said...

Your CEO analogy misleads you, I think. What we want there is what the Founders called "Energy in the Executive," which is why focusing on credentials and intellecutal achievements is such a bad idea when it comes to electing a president. But being a Justice involves almost no leadership whatsoever. The job is intellectual and ought to be technocratic.

6:59 PM  

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