Sheridan: Con-Law

DAMNED BY FAINT PRAISE

Much of the criticism of Harriet Miers as a candidate for the Supreme Court has been unfair and beside the point.  The editorial below, of the Seattle Post-Intelligencer, is more to the point, and seems apt, sad to say.  Sad because we shouldn't have nominees about whom this could be truly said:

NO RESPECT GIVEN MIERS

I took exception to the way Harriet Miers was being treated after being nominated to the position of Associate Justice of the Supreme Court. 

The email I wrote to the Conlawprofs listserv, with some of the earlier email on the subject is here:

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Granted that conservatives and libertarians are getting a pig-in-a-poke, probably because neither the president nor professional vetters have questioned Miers on all the issues of interest to date; she could be another Blackmun or Souter, which may help explain the silence from the Dems or the left as they watch this nomination tear apart the right.

The one thing Miers has been smart enough to do is NOT to have left a paper trail by which she can be torn up.  The pap she submitted as Texas Bar president is consistent with this.  She had to write something and not offend thousands of Texas lawyers, so she fed them pablum.  If she'd actually expressed herself on an issue, she'd have driven half off the reservation.  That's not the Bar president's job.

As far as expressing herself on a real issue as a prospective justice, my guess is that Miers can probably do that without too much difficulty.  SC opinions are corporate products, which is why they look better than what students write in blue books, or professors in the manuscripts they hand in to lawbook publishers.  Years ago, waiting for bar results, I worked as a checker for the California C.E.B. (U.C. Berkeley's lawbook publishing arm) where I had the dubious pleasure of reviewing law professor submissions, which weren't pretty.  They were returned with innumerable post-it notes challenging this and that.  The editorial staff helped plenty.  I doubt the Texas Bar letter she wrote enjoyed such a process, or needed to.  Miers' intent was probably to offend no one by taking no side except what all could agree on, which explains why she blunted every point.  That kept her out of trouble in Texas, but hurt when David Brooks held it up to ridicule.

Let me state, since it seems to be easy to mistake posters' positions on a list, that I'm not a fan of either this administration or this nominee.  My position is that much of the criticism of this nominee doesn't strike me as being particularly fair in any neutral or objective sense.  As political polemic for partisan purposes, one way or the other, it may be telling, but hardly fair or impressive otherwise.  There seems to be a view that justices need to be cut of better cloth than the rest of lawyerkind.  I doubt that's true.  Miers passed the bar and practiced with some success; a lot in fact, as lawyers go.  So, as long as the gene pool for justices is restricted to lawyers, she seems to meet the qualifications.  As to what her general predisposition and attitude are on the issues of the day, she's so in Bush's camp that it's probably correct that he couldn't have found a better nominee for his purposes than Miers.

Miers is being condemned for not having left a paper trail on which to be hanged, whereas if she had made the political mistake of having left such a trail, she'd be condemned for that, with much better reason.  I don't think the right or the left is entitled to have it both ways, to condemn those who had the temerity to take positions, and to condemn them for when they didn't.  It seems the ultimate cheap shot, not improved by dressing up the critics as national columnists, organization leaders, or law professors.  All either side is left with is the hearings at which, as Chief Justice Roberts recently demonstrated, the best position is to leave things as mysterious coming out as they were going in; otherwise you don't get confirmed.

Which is it, left and right, damned if you do and damned if you don't?  No wonder the game playing in the hearing.  First we force it, and then we condemn the player for playing it.

I say the blame is on the observer, not the player in a rigged system such as this.

People like Roberts and Miers then bear the brunt while others opt out of the game entirely.

The rest of us have a choice.  Given the lotto-like chances against ever being in the position to have to appear before the SJC in the first place, the choice is to use the FA to speak up on issues, and reveal oneself as a  person with views on issues, or to play the milktoast role out of fear that if tapped, one will have self-disqualified by having spoken out.

This is a helluva stacked game.

I'm not impressed by Miers, but I give her credit for having avoided self-disqualification by ever having publicly taken a position on anything other than being identified with GWB, which wasn't exactly an unintelligent choice in terms of professional advancement.

rs
sfls

i.s. wrote:

I'm skeptical that Bush has over the years discussed the full range of key con law issues with Miers and learned her views on them. Just being vaguely conservative in overall ideology is not necessarily enough. After all, that could be said of Blackmun, Souter, etc. at the time they were nominated.

I don't agree that voting is all that's really important in the job of Supreme Court justice. It also helps to be able to justify your decision in a way that will constrain lower courts and create a persuasive precedent.

But even with respect to voting, Miers' record raises troubling questions for conservatives and libertarians, as others on this list have detailed.
I.S.
Assistant Professor of Law
Subject: Re: Vetting process on Miers

i.s. wrote:

"...

We should not hold Bush's relative ignorance against him; a president should not be expected to be an expert on  con law. We should, however, expect a president lacking such expertise to to recognize this shortcoming and seek appropriate advice from those with greater expertise (to avoid misunderstanding, I emphasize that I don't necessarily mean academics). At least based on Fund's evidence, it would seem that Bush failed to do so here. "

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I don't quarrel with the point that Bush might've vetted further by consulting experts in Con-Law.  My question is, what would he expect to learn?  Is there a correct way to perform Con-Law at the Supreme Court level?  Wouldn't Bush be entitled to assume that if he nominated a loyal supporter with whom he worked and and knew well as a conservative in politics, religion, and law, a lawyer with some familiarity with the issues that exercise the left and right today, and have for the past thirty plus years, that she'd vote the way he and his supporters think right most of the time?  Byron White used to say that it took about five years for a justice to go once around the track.  In five years, why wouldn't an intelligent lawyer learn the ropes?  After all, she's got all these professors to tell her what she should do.  She can read the briefs, pick her outcome, and her reasons, and set them forth.  Between what she writes and the editing process, what will emerge is something that looks like the general run of SC opinions.  If she doesn't write like Cardozo, Holmes, Brandeis, or Jackson, so what?  None of the others do either.  All she has to do is vote, not make it look pretty.

rs
sfls

Well-connected conservative WSJ columnist John Fund recounts the      severely flawed vetting process that led to Miers' nomination:

   

 

I don't know, obviously, whether Fund's account is accurate. But     

if it is, I think it severely undermines claims that we should "trust" Bush's judgment on Miers' qualifications and how she will vote, as Miers was not apparently not vetted by anyone with expertise in constitutional law or other major issues the Supreme Court deals with. Instead, the decision was made primarily by Bush and Andrew Card, based on personal acquiantance with Miers.

Whatever we might think of Bush's ability to judge character (and     

given his remarks about the sterling qualities of ex-KGB honcho Vladimir Putin, I wouldn't be too confident even here), he is not an expert on constitutional law and is not qualified to assess Miers' abilities in this area without at least some expert assistance.    

We should not hold Bush's relative ignorance against him; a     

president should not be expected to be an expert on  con law. We should, however, expect a president lacking such expertise to to recognize this shortcoming and seek appropriate advice from those with greater expertise (to avoid misunderstanding, I emphasize that I don't necessarily mean academics). At least based on Fund's evidence, it would seem that Bush failed to do so here.    

I.S.
Assistant Professor of Law

HARRIET WHO?

When I saw a list of potential nominees to replace the retiring Sandra Day O'Connor, all women, last week, one of them was of the president's in-house counsel.  The others all seemed to be judges on various courts around the country, most of whom had drawn fire for being bizarrely originalist, on the order of Clarence Thomas, that is out-of-the-mainstream and likely to be filibustered by anyone living in the 21st century.  So I figured the most likely person on the list to make the cut would be the president's lawyer.  She has the advantage of proximity, and if he knows her, likes her, relies on her good judgment, and hasn't attracted fire (yet) because she's under the radar, she's most likely 'it.'

Good guess.

Early this morning the president submitted Harriet Miers to the Senate for confirmation and the response of the chattering class has been underwhelming.  Very few of the usual media suspects know anything about her.  So the race now begins to dig up her paper trail.  Hard-shell conservatives aren't happy either, because they wanted someone with a record of being hard-core conservative, which they're probably not going to get, not that Miers isn't hard-core conservative; it's just that she may not have a paper trail.  I don't see how you could be a GWB supporter for many years and work your way into his inner circle in the White House without out-Cheneying VP Dick Cheney.

I see Miers as stealth hard-core with a paper trail that'll likely be made on the high bench unless she gets filibustered off or voted down.

Meanwhile, Roberts, who made his first public appearance as Chief Justice this morning when the Court had a ceremony attended by the president, had the good sense to lose the admiral's stripes on the robe.

If you call yourself an originalist, it means that you want to try to understand how the Founding Fathers of 1787, when the Constitution was drafted, would have viewed today's questions.

I've got a better idea.

Why not cherry-pick the good ideas left to us by the Framers and lose the rest, such as slavery and its successor, Jim Crow.  The country has come a long way since 1787 and we've had experience with what works and what doesn't.  I think we have as much right to govern ourselves as the Framers had to govern themselves.  I don't think they have the right to govern us.  If we wish to maintain the structure of government and separation of powers, that's our choice, not just theirs.

What I'd like to see are justices willing to give healthy respect to what has worked and careful scrutiny to what hasn't.  This requires a decent sense of what has gone before.  I don't see turning the clock back as being a sensible solution.  So when I heard on the TV this morning that Miers claims to be an originalist, I figured she's in for a ride.

And so are we, if we don't look out.