Baseball Crank
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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[.]

[snip]

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.

From this I especially dissent. Simply put: It isn't that hard. It is wrong to argue that it is so. It is anti-democratic to argue that it is so. The Left wants you to believe it is so, and the center-right should resist that.

[snip]

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.

Orin Kerr thinks this is a cop-out:

[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.

To be fair, I agree with Hugh that Supreme Court Justices don't need to be academic super stars. But they do need to be reasonably self-aware. And my guess is that self-awareness tends to come most often from the experience of testing and evaluating arguments again and again, whether as a judge or in some other forum.

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.

Posted by Baseball Crank at 11:15 PM | Law 2005 | Comments (6) | TrackBack (0)
Comments

Good points. Hewitt also calls for putting the discussion behind us for the sake of uniting the party for mid-term elections. As bad as Miers might be, it isn't worth fighting over, so accept her and move on.

This is severely off-base. Bush was wrong to nominate her and was more wrong to claim she was the best candidate he could find.

Party unity is not nearly as important as integrity. Putting forth a nominee who is part of his entourage is not something to go to bat for.

Posted by: Bob at October 10, 2005 11:42 PM

Doesn't Miers' looking for loopholes and circumventing the Constitution for the President count as experience?

Posted by: Mr Furious at October 11, 2005 11:50 AM

Frankly, I'm surprised by the discord, but Andrew Sullivan was correct...the neocons have spent years and millions building a bench of unquestionably qualified partisan true believers that intellectually can move the centrists justices to the right, not just vote with them. And Bush ignored those candidates for a crony who will be no more than another Thomas. But I had thought that many neocons had forgotten anything other than "Support the President" mantra, making it unpatriotic to believe the guy is the figurehead moron he truly is. And to attack on cronyism? C'mon...this is a crony capitalism theocracy going on here...it's like saying they're shocked that gambing is going on in Rick's...

Posted by: AstrosFan at October 11, 2005 12:48 PM

Please do not use the term "neocons" to refer to conservative approaches to Constitutional Law. That's just advertising ignorance of the subject. Neoconservatism is a specific intellectual movement that has little in particular to say - as distinct from any other branch of conservatism - about the courts. Unfortunately, since 9/11 we seem to have seen an upswing in using the term "neocon" to refer to any and all forms of conservatism a person does not like.

Posted by: The Crank at October 11, 2005 3:12 PM

Well said.

Just by way of example, the Courts' application of the dormant commerce clause has been limited and niggardly. It's application of the commerce clause authority of Congress has been expansive. Does Miers' think it's important these two definitions of commerce coincide, or is it appropriate that they diverge?

Posted by: Roach at October 11, 2005 8:17 PM

Neocons did, in fact, raise money for these movements, so I think your criticism is misplaced...lots of neocons in the Heritage Society/Federalist Society, etc. Do you deny that? Your so-called "conservative approaches" from the bench, I presume you mean originalists and, to the extent they disagree, originalists with respect for precedent (rolling originalists, I suppose). I understand that not all neocons are originalists, although they think they are. But I find it humorous that originalists even exist, as if there is any way to be an originalist in a modern society without constant revolution and violence.

And by the way, I've been using the term "neocon" for long before 9/11. I've been using it at least since Reagan "graced" our presence, which is the earliest I've heard the term. And if I use the term more broadly than you, well, then I guess that is my prerogative, ain't it.

Posted by: AstrosFan at October 11, 2005 9:23 PM
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