Earlier, i posted my preliminary opinion on the Miers nomination. At the time i fully expected the controversy to die down, although i was mildly disappointed with the choice. Or rather, i was more disappointed with the fact that Bush had chosen not to nominate one of my preferred candidates, instead opting for another apparent stealth nominee.
Over three weeks have passed, and i've watched and listened as the controversy refused to die. This story has had "legs," in the news parlance of the day. And the more i learned about Miers, the less willing i have been to close my eyes and hope for the best. Now, i am ready to commit to a side in this debate. It shouldn't be a surprise, given my background as a conservative with a history degree, that i have decided to oppose the confirmation of Harriet Miers as Supreme Court justice. My reasons have little to do with ideology.
Many reasons to oppose her confirmation have been proffered by conservative pundits much more knowledgeable than i am. These reasons seem to fall into a few broad categories. One group is mad because she isn't a big name judge. These folks are mad because they expected Luttig or Brown or Pryor. i can understand this criticism. i wanted McConnell or Brown. i still don't understand why Kozinski's name wasn't batted around more often. But i could have lived with my disappointment if Miers had been a good choice, and i think most conservatives feel the same way.
Another group is mad because Miers lacks a clear "judicial philosophy." The most articulate spokesman for this point of view is Mark R. Levin, who's turned the phrase " . . . but what's her judicial philosophy?" into a kind of mantra. This criticism has a lot of merit, in my view. i think it's fair to suspect that a person who has shown no evidence of having a coherent underlying approach to constitutional issues probably does not have such an underlying approach. At age 60, it's a little late to expect Ms. Miers to start developing a useful judicial philosophy if she hasn't given much thought to it before now.
Still, i'd be willing to give Ms. Miers the benefit of the doubt on the judicial philosophy question if that were my only objection. It's quite possible that despite the scant evidence of any coherent philosophy, she might actually have one. The trouble is, we don't know what it is. Larry Tribe and Erwin Chemerinsky have coherent judicial philosophies, but woe unto us if they were ever placed on the court. At least Tribe's and Chemerinsky's viewpoints are well known, as are their towering intellects. Which brings me to my next point, which is the clincher.
i'm not saying that Harriet Miers is not smart. Her background, education and experience proves to me that she is. But the position of associate justice on today's Supreme Court is not a job for just any smart person. It's a highly specialized occupation, and those who say it's not a place for "on-the-job training" have it absolutely right.
i am certainly no expert on constitutional law, although i have studied it in more detail than most people my age, both as a law student and in undergrad and graduate history courses. i know enough to know what i don't know. It is perhaps the most difficult area of law, not because it surpasses the intricate detail of a subject like tax or securities law, but because it is so malleable and its standards can be so hard to define. Con law is the "big leagues" of the legal profession. And doing con law as a Supreme Court justice is like being in the World Series. You have to be on your game at all times. You have to be the best of the best to do it right, and if you're not, it will become painfully obvious to knowledgeable observers very quickly.
i think that is the problem when non-lawyers like President Bush try to make decisions concerning the legal world. Most non-lawyers i've met seem to think that all lawyers know everything about all fields of law. No one would think to ask a dermatologist questions about spinal surgery. Yet Miers supporters are quick to assume that a corporate lawyer could easily slip into the role of constitutional scholar overnight.
i don't care that Miers has been at the White House for almost five years. That's not the same thing as spending a lifetime thinking about constitutional issues and the development of precedent from year to year and case to case. That's what con law is all about. It's analyzing precedent, history, argument and policy, then trying to extrapolate the potential reverberating effects of a ruling on future transactions, often for generations to come. Con law is to regular legal practice as Chess is to checkers.
Think about a guy like Mike McConnell, for instance. i've spent many hours this semester dissecting his various Establishment Clause articles, most notably his William and Mary Law Review piece (44 Wm. & Mary L. Rev. 2105), which is heavily footnoted, dense and unquestionably essential reading no matter what side of the religious argument you are on. i'm nowhere close to getting a handle on the subject. Here's a guy who's thought about this shit for years. He likes thinking about this shit. You could say the same thing about Prof. Tribe, if you're a liberal. Is there any evidence that Ms. Miers is similarly up to speed on even one subject of constitutional law?
So what if she's not up to speed? Why does that matter? i'll tell you why. An effective Supreme Court justice must have the power of persuasion. If the other justices do not have confidence in her mastery of the subject matter, in her authority as an analyst of the case law in question, they will eat her alive. At this point, i see no evidence that Ms. Miers has the kind of background that will give her that kind of persuasive authority. In fact, i have seen discouraging murmurs that she lacks just that.
How many Supreme Court opinions has she read top to bottom, and understood? It's hard to believe, with her busy career, that she's had the time for that kind of recreational study. If she's confirmed, when is she going to find the time then? i remember my first month of law school. In my nightly reading, i came across so many unfamiliar words and concepts that i was constantly going into Black's Dictionary to look things up. It was a nightmare. i've since learned how to skim the cases just to get through the reading, but that's not something i want my Supreme Court justices doing.
Oh sure, she can have her clerks do the heavy lifting. But in this day and age, i don't want unaccountable idealistic twenty year olds who were basically the best ass-kissers in law school leading around the new justice by her nose. There are plenty of historical examples of Supreme Court justices who relied overly much on their law clerks, but that was never a good thing. And today, the scariest issues are much scarier than they ever were back in the day. Terrorists who can blow up entire cities, scientists who can condemn millions more unborn lives to death, those are just two examples. This is a game best left to the pros.
i'm planning to watch the confirmation hearings, assuming she doesn't withdraw before then. i'm willing to keep an open mind, but unfortunately Ms. Miers has an even tougher job than Justice Roberts had. She must be absolutely stellar at the hearings, because she has to change minds. i know the White House has been working hard to prepare her, but i'd be very surprised if she can pull it off. Very surprised.
[cross posted at annika's journal]