Thursday, October 06, 2005

Harriet Miers Is A Bad Choice For The Supreme Court

Hey there, kids! Long time, no post, and all that!

Anyhow. I posted the substance of this somewhere else earlier today, where it got absolutely no play whatsoever. On the off chance that someone else might be interested in what an undermployed California lawyer thinks of the goings-on at the Supreme Court these days, I offer the following critique:

I think we all ought to have some serious reservations about this particular nominee. Obviously she's a competent attorney with decent political instincts, or she wouldn't have been elected president of those bar associations or held a seat on the Dallas city council. And it's not necessary, as her defenders remind us, to have been a judge before becoming a justice, nor is it necessary to have clerked at the Supreme Court or to have graduated from Harvard or Stanford or Yale to get a seat. Objections based on those "requirements" are specious. But those aren't the compelling objections to her appointment, which her defenders really do need to address.

First, and most serious, is the fact that she owes her national political career and her appointment to the Supreme Court from near-total obscurity solely to her personal friendship with George W. Bush. The last justice with that kind of relationship to a President was Abe Fortas, who was not confirmed as Chief Justice and eventually resigned in disgrace despite a distinguished legal career. Miers, assuming she were to be confirmed, would necessarily have to address cases where the executive branch is a litigant, or offers an amicus brief. How can we be sure of her impartiality when she has a close friendship with one of the parties to the case? It violates a fundamental principle of jurispridence for a friend of one of the parties to be the judge in his friend's case. If she recuses herself from those cases, as would be proper, she leaves the court with only eight justices on a significant number of cases each term. Whether she would, in fact, be impartial is irrelevant - the court cannot seem to have a stake in the outcome of a case. This objection has nothing to do with her legal qualifications and everything to do with her ability to be an effective justice.

Second, although she probably is a competent attorney, she does not have any significant experience in the practice of Constitutional law. Since virtually all the cases that come to the Supreme Court are Con Law cases, that's a serious failing. It's not that she's not smart, or went to a bad school; it's that she's largely been a corporate lawyer and has never addressed kind of law the Court deals in. The Supreme Court is a bad place for on-the-job training because its decisions have wide-ranging effects.

Third, she doesn't bring any other govermental experience to the job that it would be valuable for the Court to have. It's true that you don't need to be a judge to become a justice, but if a candidate doesn't have that background, it's perfectly legitimate to question what other relevant experience she does have that might be valuable. And the answer here is "very little." Aside from a brief stint on the Dallas city council, she's never served in an executive or legislative capacity. Nor has she run for election - I think that she was appointed to the city council position and declined to run for reelection (if I'm wrong, please let me know). Contrast that with someone like, well, Sandra Day O'Connor, who had to run for office, was elected, and served in the Arizona legislature with distinction - aside from her experience as a judge. So Miers lacks some special background that would excuse or compensate for her inexperience as a judge.

Fourth, but related to the second objection, we know nothing about her judicial philosophy. People who focus on her political or religious temperament are, IMO, focusing on the wrong thing. It's irrelevant to the question of her competence as a member of the Supreme Court what her political or religious opinions are. What is important is how she thinks she's going to do her job. What theories of Constitutional interpretation does she follow? Why? What authorities does she see as legitimate sources for understanding the text of the Constitution? What's her opinion of the use of legislative history in interpreting law? Does she prefer to work with other people to form a consensus before delivering an opinion, or does she decide to do what she thinks is right regardless of who agrees with her? Does she regard previous decisions of the Court as binding on today's Court? We don't know; she doesn't have any record of deciding cases, or arguing Con Law cases, that would tell us; and it's highly unlikely that we'll find anything of the kind out at the confirmation hearings.

Fifth, it's not merely a question of "Is she competent to handle the job?" Probably, she is. But there are only nine seats on the Supreme Court. We ought to be putting people on the Court who, like John Roberts, are more than merely competent; we should be trying to put our finest legal minds - whatever their politics - on the court. Harriet Miers may be a wonderful person and a skilled attorney, but she hasn't demonstrated in any way that she's one of the very finest legal minds our country has. Bush can do better.


JG said...

Wow. Great breakdown on the selection of Miers and a cogent analysis by "anonymous" to boot!

Skipaway said...

Not really about Miers, but I believe the value of having no philosophy is under-estimated. Philosophies themselves are binding forces that restricted the flexibility. Law themselves are already a restriction force that's always lagging behind the society, and it's people with firm judical philosophies that'd make laws from the bench the most, and further hinder the progess of the society.

A. said...

I disagree. Judges who make it up as they go are, IMO, significantly more likely to judge inconsistently. Consistency and stability are huge advantages in any legal system. Predictability is almost as important as fundamental fairness in a legal system, because even if the laws are unfair, people at least know what the rules are and can plan their future actions accordingly. Having a judicial philosophy helps with predictability, and that's a Good Thing.

I'd also be very leery of assuming that a change in society is necessarily "progress." People make bad choices all the time, and holding back change is another virtue of a responsible legal system. One of the reasons that issues like abortion and gay marriage are so contentious in the US today is because the courts were too quick to allow a change that, however legally defensible, were too much for a significant portion of the country. We'd have been better served, I think, had the Court declined to address the Constitutionality of abortion rights and left it up to the states.

Skipaway said...

But that's simply the case where everyone is inconsistent. When there is only one judge, you'd have a extremely high need for consistency, but in the case of nine, it actually hurts when everyone is consistent. That's why I said the value of having no philosophy is underestimated by the emphasis on consistency and philosophy.

skipaway said...

Essentially, the way people are expecting each judge change to have significant impact just shows you you don't really have more consistency with consistent judges. You are just accumulating changes to specific time points where there is a judge change.

A. said...

I don't see why the number of judges changes the situation. An unpredicatble judge - particularly on a court that sets precedent for the entire American judicial system - is a bad thing. Maybe slightly less bad if she has eight other justices to work with who aren't inconsistent, but there's no way it's a good thing.

Skipaway said...

The benefit of having inconsistent judges: more willing to determine the case by what's really happening in the world, instead of acting by ideologies. The importance of that is increasing in a rapidly changing world.

You can argue that's not the job of the court, and there is nothing wrong for the court to be blind.

Still, you did under-estimate the value of not being consistent by claiming there is nothing good out of it.

Nobody is always consistent. I think you just want judges to be generally more consistent than elected officials or legislators.

A. said...

I may have overstated the case. It's true that nobody is perfectly consistent, and an inconsistent judge will sometimes come to the more just conclusion than she would if she were more rigorous in her interpretation of the law. But...

Inconsistency is a virtue in some cases, but not, IMO, for judges. A judicial philosophy isn't a straightjacket. It's just a consistent approach to judging. It's not necessarily an ideology - certainly, it needn't be a political ideology. That kind of consistency is a Good Thing, not least because it gives the judge a way of approaching new or unusual cases.

It is, as you say, true that the world seems to be changing at an increasing rate. That's all the more reason why a judge who has no consistent approach to deciding cases can be so dangerous. Not because he or she will come to the "wrong" answer - but because he or she will be unpredictable. And on the Supreme Court, that's bad. We're better off with someone like Scalia, who (even if I disagree with his politics) generally follows a coherent set of legal-interpretive rules, than another O'Connor, who (while I find her personally more appealing) has never been terribly concerned with applying the same set of interpretive criteria to different situations. That's made her an important "swing vote" on the court, but it's not at all clear to me that it's been good for the Court in particular or the country generally.