Covering the Front and Back Pages of the Newspaper
October 10, 2005
LAW: Yes, It Matters Whether Miers Knows Constitutional Law: A Response to Hugh Hewitt
Does it matter that Harriet Miers appears to have almost no record of experience litigating, adjudicating, or otherwise staking out positions on constitutional issues? I say it does.
First of all, the Court's role in deciding questions of constitutional law is hugely important, the most important part of its job. Yes, as a practicing lawyer I am well aware that constitutional issues are actually a minority of the questions on Court's docket, and that the Court's constitutional decisions are at least arguably not the part of the docket that directly affects the most people (although many areas of law that have broad-ranging impacts, like criminal law, election law, abortion and the effect of racial preferences on employment and educational opportunities, are shot through with constitutional questions).
More to the point, as I noted with my "how hard is this to change" test, the Court's rulings on constitutional questions have outsize importance because they are the most difficult rulings to undo - especially rulings using the Constitution to take issues away from the democratically elected branches - and because they often involve directly overturning acts of the people's elected representatives.
Hugh Hewitt, who has been working as hard as he can to put back together the Humpty Dumpty of conservative support for Harriet Miers on the Supreme Court, argues that the thinness of Miers' experience as a constitutional lawyer is is not a problem:
The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task[.]
The other argument is a subdivision of the "not smart enough" argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.
ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observors.
[C]onstitutional law is a lot harder tha[n] . . . Hugh Hewitt will admit. It's easy to repeat platitudes about how a judge won't "legislate from the bench" or will just "follow the Constitution." But the hard part is sticking with those principles when they no longer comport with the results you really really want to reach.
The question of how "hard" Con Law is in the abstract is besides the point. While I have my concerns - which I'll discuss separately - over what exactly Miers' career tells us about her facility with arguments about the law, we can agree that smart people can learn the ins and outs of each issue before the Court as it comes up based upon the briefs. Much of the work of the Court is done by law clerks with minimal experience, after all - but they're smart people, and they learn the stuff.
No, the core problem with appointing a Justice who is - as Miers appears to be - learning Constitutional Law on the fly is not that it's too hard to understand the issue at hand in a particular case. The problem, as Hugh should know from teaching Con Law, is that there are connections between the various areas of constitutional law, ways easy and difficult to foresee in which a decision on one question can affect decisions in other areas, whether in terms of substantive doctrine, overarching philosophy, or the myriad issue sub-parts that cut across many different areas of the law: respect for precedent; deference to legislative facts, to state courts, and to findings of administrative agencies; the use of balancing tests and bright line rules; the uses and abuses of foreign law; the significance of the intentions as opposed to the effects of legislation and of popular referenda; the meaning of "rational basis" and application of varying levels of scrutiny; the propriety of exclusionary and other prohylactic rules; the role of horizontal federalism; the special roles (if any) of academic freedom and of the organized press; and many others. A Justice who decides today's case without regard to its broader place in the constitutional scheme is, in effect, a glorified law clerk, applying brainpower but not the wisdom that comes from seeing the whole field of constitutional law.
Indeed, the entire benefit that comes from appointing a Justice who has been a litigator, a legislator, the head of a business and an advisor to the President is supposed to be the nominee's ability to see beyond the individual intellectual issues in a case to how the result will play out in the lower courts, the broader legal profession, and the outside world, where it needs to be implemented. After all, as any practicing litigator knows, even an offhand footnote in a Supreme Court opinion can spawn a whole body of law in and of itself, one the Court might take decades to return to.
But if Miers is indeed as blank a slate on constitutional questions as she now appears, that benefit is significantly blunted as to the most important part of the Court's docket, because there is a real concern that, however smart she is, she could have trouble understanding - as someone experienced in the field would - how the reasoning of her decisions will affect the disposition of other cases on other days, in the Supreme Court and in lower courts.
Maybe Miers has a well-thought-out view of many aspects of constitutional law; maybe we will yet be surprised. But Hugh Hewitt's argument that it doesn't even matter if a new Justice knows the pre-existing 200+ year-old body of consititutional law is misguided, unrealistic, and detatched from the way in which the Court actually operates and in which its decisions play out in the real world.