After weeks of trying to keep an open mind about the Harriet Miers nomination, I’ve concluded that the Senate should vote down Miers – if her nomination isn’t withdrawn first – and force President Bush to nominate someone else. Let me explain why.
Now, as you will recall, I was initially disappointed with this nomination, but then John Roberts wasn’t my first choice either. You need more than disappointment at the absence of better candidates to justify actively opposing the confirmation of the president’s chosen nominee. And there were some things I liked about Miers: I do believe that it would be a good thing to have a Justice who has practiced law at the trial-court level.
The Confirmation Standard
I started off with three big-picture questions about Miers, and five more specific concerns. The three big picture questions:
A. Do I believe Miers would be a good Justice in terms of things like legal skill, proper attention to relevant detail, and understanding of the need for clarity?
B. Do I believe Miers would be acceptable to me as a conservative, in terms both of following an acceptable method of deciding cases and generally acceptable results?
C. How certain do I need to be of #1 and #2 to support the nominee?
(B, of course, is shorthand here – if I accept the nominee’s philosophical/methodological approach, I’m willing to live with the possibility of some results that will make me unhappy. The more ad hoc or unpredictable the nominee’s approach, by contrast, the more worried I get about particular cases).
Question C is the tough one, if you think seriously about the question of what role the Senate – and those of us who comment on these things, who can (once the nomination is made) only look at this from the perspective of what the Senate should do – should play in the confirmation process. On the one hand, the Senate’s job is to decide if the nominee is acceptable and then vote on her – not argue over who might have made a better Justice. The president’s choice is entitled to some deference, as he gets to choose. On the other hand, appointments to the Supreme Court are enormously important, mistakes are impossible to fix once confirmed and can have consequences reaching decades or centuries into the future, and there is one specific area – the president’s choice of close personal friends – that warrants less deference, as it was a particular item of concern to the Founding Fathers. In light of that concern, I believe more scrutiny is required of Miers’ qualifications than would be the case if she were not a close personal friend of the president.
As to ideology, my feeling all along has been that presidents are entitled – indeed, obligated, if you take seriously the idea that legitimacy flows from the people’s approval of the principled positions taken during an election campaign – to nominate Supreme Court Justices who are consistent with the publicly declared philosophy of the president, and the Senate is justified in rejecting nominees on ideological grounds only if the nominee is far out of whack with what the people were entitled to expect from the president they elected. To give an example, Bill Clinton ran as essentially a social liberal – as far as the issues that are decided by courts are concerned – but with one significant exception, that being that Clinton supported the death penalty. There were a number of Supreme Court Justices in the late 80s/early 90s – I believe Brennan, Blackmun and Marshall all did this – who made a practice of voting to overturn all death sentences, to the point of dissenting from the Court’s orders denying certiorari in each and every death penalty case not taken by the Court. Clinton was entitled to appoint liberal Justices, as he did, and as were confirmed by the Senate with significant Republican support. But I do think the Senate would have been justified in rejecting a Clinton nominee who was, in the Brennan mold, a doctrinaire, no-exceptions opponent of the death penalty, because that would have been out of step with the philosophy the president campaigned on.
In Bush’s case, he unquestionably campaigned and has promoted himself in office as a social conservative – pro-life, anti-same-sex-marriage, in favor of an expanded role for religion in public life. He has also campaigned and governed, at least in terms of stated philosophy, as an economic conservative. There is no justification for rejecting a Bush nominee on grounds that the nominee appears to be pro-life or pro-business. And Bush touted his belief that he admired Justices Scalia and Thomas; thus the Senate should have no grounds for rejecting a nominee in that mold. On the other hand, a nominee who was a genuinely radical small-government conservative or libertarian – i.e., someone who wanted to bring back the rule of Lochner under which the courts make substantive judgments about economic regulations – might legitimately be rejected as out of the mainstream of the Republican party and the president who leads it. This is why I think that, of the frequently discussed potential nominees, Janice Rogers Brown is the only one who might legitimately be voted down on ideological grounds (although I understand the argument that the charges against her are overstated; I’m speaking hypothetically here).
The flip side of that is that the president’s own supporters do have an obligation, I believe, to reject a nominee who is dramatically inconsistent, in terms of judicial philosophy, with the president’s own stated philosophy. And that has been a big concern with Harriet Miers.
The Trouble With Harriet
Turning to specific questions about Miers, I’ve raised a number of concerns about her – click here and scroll down. These boil down to five more specific questions:
1. Does her lack of grounding in constitutional law and theory, taken together with what we know of her temperament, indicate that she will drift from her moorings once on the Court?
I’m inclined to give Bush some benefit of the doubt on the temperament issue, as he knows her well, but the lack of experience with constitutional law worries me, and worries me all the moreso as she seems to be fumbling her way through meetings with senators and botching her questionnaire by giving, at best, opaque answers about constitutional subjects. As I’ve explained here, and as Justices Scalia and Rehnquist explained here, while we certainly do not need nine constitutional law professors on the Court, it is simply not acceptable to have a Justice who is a completely blank slate as far as her experience with the constitution. In fact, this goes to Question C above: with John Roberts, even though we had to take on faith to some extent his philosophy of judging and of the constitution, there was no doubt from his resume and experiences that he had had more than ample time and opportunity to think deeply about those issues, and thus the likelihood is much less that he would find himself adrift (or overwhelmed, like Lewis Powell) once on the Court.
And yes, this ties into the question of ideology. A Justice who is a known quantity, to herself and to the world, is far more likely to be predictable in how she approaches the law, and conservatives have labored too long and too hard to reclaim the judiciary on behalf of pro-democracy judges to entrust the job to a complete cipher.
2. Does she understand the body of constitutional law well enough to anticipate how the drafting of her opinions will affect cases not before the Court?
I’ve covered this point before. To use a football analogy, I want a Justice who can see the whole field, not a hedgehog who burrows into one narrow issue and loses track of how it fits into or affects the next case. I’m deeply skeptical that Miers has the breadth of understanding to do this.
An example of what I’m talking about is a specific case I’ve blogged about before here, and which is on this term’s docket: FAIR v. Rumsfeld, the Solomon Amendment case. The case will determine whether the lower court properly issued a preliminarily injunction against the enforcement of the policy of denying federal funds to universities that do not allow military recruiters equal access to that provided to civilian employers. Just in this one case, we have issues of the proper standard applied to compelled speech, freedom of association (the Third Circuit claimed that its decision in favor of the law schools was compelled by the decision holding that the Boy Scouts couldn’t be forced to hire gay scoutmasters) and the role of academic freedom, which the Court has treated very inconsistently (recall the distinction between the VMI case and the Michigan affirmative action cases); to what extent the War on Terror makes military recruiting a compelling public interest; to what extent the Court should defer to legislative judgments about the needs of military recruiters; and whether Congress can do indirectly through the Spending clause what it might not be able to do directly, as well as whether the particular program is rationally related to the spending at issue. (This is aside from the procedural issues like standing and the standard applied to an appeal from an order denying a preliminary injunction). And that’s just one case. We need Justices who can not only resolve a case like this but do so in a way that makes more rather than less sense of the existing constitutional framework of these various doctrines. And this leads us to my third question, the one that is the deal-breaker.
3. Does she have the intellect and writing chops to understand the torrent of complex issues the Court needs to resolve and produce clear opinions that lay down workable rules of law?
Here’s what I, as a practicing lawyer, want, as far as qualification and competence: a brilliant or, at least, a clear and incisive legal mind, someone who can grasp the many, varied and often complex issues – constitutional and statutory – that come before the Court. I want someone who can write opinions that are internally coherent, make sense, and reduce rather than multiply litigation over their application. I want a Justice who can consider and reject the best arguments against the Court’s ultimate disposition, rather than dodge, sweep aside or leave unsettled alternative arguments for the opposite outcome. I want someone who understands that, because the Court takes but a small fraction of the cases raising a particular legal principle and sometimes takes years to revisit an issue, the Court’s job is to settle unsettled questions of law.
Now, when we are discussing Miers’ qualifications, it is sometimes objected that critics of Miers are being elitist. But let us make one thing perfectly clear: I’m not looking principally for credentials, I’m looking for skills and a base of substantive knowledge. The credentials are just markers that help us determine how sure we are that the nominee has the skills needed to do the job. As I’ve discussed before, no one of Miers’ credentials, or omissions from her credentials, is the problem; the problem is that taken as a whole, her experiences provide no guarantee that she possesses the necessary intellect and the ability to write with clarity and decisiveness sufficient to give meaningful guidance to litigants and lower courts.
One of the chief lines of argument made by Miers’ defenders goes like this, from Thomas Sowell:
The bottom line with any Supreme Court justice is how they vote on the issues before the High Court. It would be nice to have someone with ringing rhetoric and dazzling intellectual firepower. But the bottom line is how they vote. If the President is right about Harriet Miers, she may be the best choice he could make under the circumstances.
Miers is headed for SCOTUS, guaranteeing decades of anguished posts by members of the Bos-Wash Axis of Elitism on why her votes don’t count as much as their long ago criticisms.
I understand full well the desire to get the votes we want on our side. But the Supreme Court is about more than just votes. This is not the House of Representatives, where you just shut up and vote; it’s about the Court’s written opinions. Of course, writing style and ability matters. Because words are the Justices’ only weapons.
The Supreme Court decides, if I recall correctly, something like 90 cases a year. Most of those cases, standing alone, don’t matter much to the rest of us – who cares if Norma McCorvey couldn’t get an abortion, or Jennifer Gratz couldn’t get into Michigan Law School? With the exception of the occasional Bush v. Gore, Watergate or Pentagon Papers case, the Court’s decisions matter because of the way its opinions govern the thousands of similar cases that don’t come before the Court. And the way in which the opinions are written matters very much to how broadly or narrowly the Court’s decisions are written, or whether those decisions are persuasive to future Justices. So yes, Miers’ writing style is in fact an essential job requirement.
Now, like the questions about Miers’ knowledge of constitutional law and her judicial philosophy, my initial inclination was to wait and see. We knew that Miers had been a successful commercial litigator, and many (though not all) successful commercial litigators are indeed brilliant and persuasive writers. So, I’ve been waiting on the evidence.
I’ve finally reached the point where I can wait no more. First, we saw that Miers had a fairly thin record (see here and here) of actually litigating, on appeal or to other published dispositions, cases raising the kind of issues that I and other lawyers grapple with on a much more regular basis. I don’t care that she hasn’t tried a ton of cases, a point Beldar has aptly rebutted, but the notion that Miers has been out there litigating cutting-edge legal issues as her bread-and-butter for years and years seems inconsistent with her record.
And there was also the issue of the near-complete absence of observers who could testify with any kind of superlatives to Miers’ intellect and writing. Just look at Beldar’s glowing assessment of two of his mentors in practice. I can certainly think of lawyers I’ve worked with and observed that I’d describe in similar terms. And there was no shortage of people willing to step up and not only say, but say with extensive supporting specific examples, that John Roberts was a man of great intellect and talent, a clear and persuasive advocate. By contrast, Miers’ defenders (see also here) always seem to describe her as “competent” or “well-prepared” or “ethical” – all wonderful qualities in a lawyer, but they keep leaving me wondering, is this the best anyone can say? And aren’t there hundreds, maybe thousands of practicing lawyers about whom you could much more easily find judges, colleagues and even opposing counsel to speak in far more glowing terms? (Where are Miers’ old partners in this? We’ve hardly heard a peep from anyone who knows her work really well other than Nathan Hecht).
Then, we started to get a glimpse of Miers’ actual writings, discussed here. And that was the last straw. Maybe it’s just that I have very high standards, but as I’ve said before, I’ve encountered successful lawyers before who just weren’t clear and persuasive writers, or who were sloppy thinkers and interpreters of the law. And so far, everything we’ve seen of Miers’ writings suggests that the woman simply is not the kind of writer I would consider a good summer associate at my law firm, let alone a Supreme Court Justice. And that can’t stand. The Court is too important to the system of justice to let someone in the door who lacks the minimal competence to do the core part of the job: explaining the law.
In short, I can no longer maintain anything but the most hypothetical hope that she would blossom into, say, another Clarence Thomas on the bench. The evidence is now clear that Harriet Miers would be, at best, a good follower on the Court, a person who brings some practical perspectives to some of the issues before the Court, but exacts a price in the quality of the opinions she would write and – as happens with these things, when opinions must meet the approval of all the Justices who join them – perhaps in the quality of opinions she would agree to join as well.
(And for those of you who compare her to Bush: don’t. Verbal intelligence and the ability to write persuasively are not essential job requirements of the presidency. They are essential job requirements for the Court. The president can order soldiers into battle, and they will go. When the Court says “jump!” nobody jumps unless it is clear what they are being told to do and how high to go. Written opinions are the only soldiers the Court has at its disposal.)
4. Is Miers too close to Bush to rule against his Administration when – as all governments are wont to do, even good ones – it exceeds its legitimate authority under the Constitution?
5. Will Miers have to recuse herself in too many cases?
I’ll skip over these questions because I came to my conclusion based mainly on the evidence of her qualifications for the job. But these are also legitimate issues with Miers, especially #4, and I will no doubt return to them as we go along.
You will note what I have not even discussed here: the politics of the nomination and the consequences of rejecting Miers. Yes, those are important. But Miers simply does not meet the minimal standards for confirmation to the Court. And as a practicing lawyer who will have to live with the consequences of this nominee if she is confirmed, I can’t support that, no matter what the judge’s party affiliation or her presumed ideology. President Bush should withdraw this nomination. And if he doesn’t, the Senate should vote NO.
PS – Another one off the fence against Miers.
UPDATE: To make sure NZ Bear picks this up: I oppose the Miers nomination.