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So What Is Really Important in a Justice, and How Do We Measure a Nominee Against Those Requirements?

Here's a fairly obvious starter list that we'd like to see in a nominee (let's set aside the attribute many of us especially want, which is a willingness to decide cases the way we think they should be decided, since it's hard to come up with a real consensus about how that is to be implemented):

  1. Intelligence.

  2. Ethics.

  3. Thoughtfulness.

  4. Willingness to consider the possibility that one is wrong.

  5. Ability to work effectively on a multi-member Court.

  6. Ability to set aside one's personal annoyance with or hostility to particular colleagues, lawyers, or litigants, even when the annoyance or hostility is justified.

  7. Understanding of the world and of the likely practical effects of various legal rules.

  8. Clarity and precision of thinking, and ability to write clearly and effectively (or to edit subordinates' work well).

  9. Creativity in thinking up (within the permissible legal boundaries) solutions that accomplish the goals that one is (properly) trying to accomplish, for instance in crafting a common-law rule, or an interpretation of a statute that's consistent with the text yet likely to accomplish the statutory goals.

  10. Willingness to subordinate one's views to the legal commands. (I recognize that there may well be disagreement about the terms of those legal commands -- for instance, how important text or original meaning may be -- but I think most observers would agree that once a judge concludes that some legal rule is binding, the he should comply with it even if he doesn't like the result.)

  11. Willingness to work hard.

  12. Ability to work efficiently.

  13. Good judgment in what to delegate to subordinates.

I'm sure there are other items, both obvious and nonobvious, that I missed.

But my point here isn't really to look for an exhaustive list, or to rank the items. Rather, it's to ask a few related questions: If we come up with a fairly well-understood list, how do we judge nominees -- and of course right now we're talking about Harriet Miers -- against it? If the President's explanation for selecting someone he knows very well is that he has a much better sense of how she fares in these categories than he would about a stranger (even an illustrious stranger), should we be impressed by this explanation or dismiss it? Are some of these attributes more important than they at first appear to many, and others less important?

Jeremy (www):
I think #10, willingness to subordinate one's views to legal commands, is by far the most important attribute. In my opinion, an activist judge is one that does not have this quality.
10.4.2005 7:43pm
lucia (mail) (www):
f the President's explanation for selecting someone he knows very well is that he has a much better sense of how she fares in these categories than he would about a stranger ....?


This would be an excellent reason if the President were picking his own personal advisor, employee, friend or confidante. In that case, the person taking the risk is him.

It's rather unsatisfying as an argument for why others should pick the candidate to work for them. If I were a Senator, I'd take this type of endorsement as simply saying "Trust me; you don't need to know any thing else."

The fact is, I'd generally want to know the track record of the roofer I hire to build my house, and I would think the Senate should want to know a bit about her track record before voting to approve.
10.4.2005 7:46pm
Justin Kee (mail):
This item may subsumed within the category of ethics, but a sense of being just, e.g. being honorable and fair in one's dealings and actions, should be enumerated. Some might argue that this item is implicit within the law, but it is reasonable to include it as a base criterion nonetheless.
10.4.2005 7:47pm
Shelby (mail):
Knowledge of the law
Knowledge of relevant history

Regarding your last points, I'd like to see the explanation you posit, rather than just "I know her well, she's conservative, she's the best qualified." An old rule of writing applies here: Don't tell, show. Give me some instances, or some writings, that exemplify the appropriate traits.

If the president were appointing someone by fiat, or simply to serve in his administration, I'd give more credit to personal judgment. (Not that I've been impressed by Bush in this regard.) However, he's appointing someone to a different branch of government, with lifetime tenure. That greatly reduces or eliminates my deference to his personal judgment.
10.4.2005 7:47pm
WB:
As I read the objections in the conservative blogosphere, the critics seem to think that Harriet Miers does not possess #1, #7, #8, #9, and possibly #12 to the extent that one should expect of a Supreme Court Justice. 7-12 would come from experience dealing with the types of questions that the Supreme Court faces and thinking about the questions on a regular basis with the sophistication that the current Justices must. Another possibility is that she lacks the experience or intellectual wattage necessary for #4 (e.g. ability to respond to/consider sophisticated arguments to the effect that she's wrong)

As I read President Bush's endorsement of her in the press conference, he emphasizes #2, #6, #10, #11, and #12, and says that the critics would be pleasantly surprised at the extent to which she possesses #1, #3, #7 and #8. His endorsement of her resolve and the idea that she won't change in 20 years could be spun as a negation of #4, but I don't think that's accurate.



To answer Prof. Volokh's questions more directly, I think that #5 is the least likely to be problematic with any of the names out there, and the least important to the extent that it is separate from #6. Justices can get the job done even if they're not on speaking terms. #1, 8 and 10 are probably the most important. The ability to discern the law, the integrity to apply it properly, and the skill to explain it to the public and to the litigants is a nearly-complete description of what makes a good judge. The other attributes are desirable, but ultimately useless without 1, 8 and 10.

#13 can be learned quickly on the job.
10.4.2005 7:52pm
erp (mail):
Eugene, by intelligence do you mean high IQ? Not many of the uber-brains I've met would make good justices. A justice must rule according the existing law and that would difficult for those convinced they always know best.

It'll be an interesting hearing.
10.4.2005 7:54pm
stevesturm:
Professor: as I posted, aren't the qualifications for the Supreme Court really in the eyes of 52 beholders... the President and the 51 Senators who have to back him up?

And isn't your list, or any list of qualifications, for that matter, merely a surrogate for asking what the public would really like to know... how a nominee intends to vote on the issues that matter to us? Would anybody really care how a nominee delegates if they knew that nominee was supportive of their position on, for example, abortion?
10.4.2005 7:59pm
Anderson (mail) (www):
Erp has a good point, one which goes far to explain why Posner and Easterbrook should not be on the Supreme Court.
10.4.2005 8:00pm
A Guest Who Enjoys This Site:
I think your last set of questions is the real crux of the issue. How do we judge nominees on the critiera you suggest if the appointment process is allowed to completely degenerate into the President, no matter which political party is in power, saying - "It would be inappropriate for Senators to probe the nominee's thinking enough to personally, or for the edification of the public at large, understand how well the individual meets the criteria of a Supreme Court Justice. Trust me. You're gonna like 'em." In effect, such a degeneration is what we have seen with the so-called "Ginsberg Rule."

Short, personal meetings between Senators and the nominee, behind closed doors, may not be sufficient in establishing the nominee's bona fides. To appropriately judge nominees in a representative democracy, we, as the voters and the public, must make the decision that we sufficiently trust our leadership enough to make an "informed guess" or we must demand public demonstration of the nominee's judicidal philosophy through extensive publication or specific, detailed, public response to legitimate inquiry or both. If we decide the former, then we accede to the President's wishes as presented above. If we demand the latter, then we must compel Senators to appropriately demand, exercise, and reinforce their role of "advise and consent" for the enlightenment of the public, not for the consolidation of partisan power or hegemony.

Call me disillusioned, cynical, realistic, or resigned, but somehow, I don't think that either scenario is realistic.
10.4.2005 8:01pm
Guest2 (mail):
I'd be interested in knowing what Eugene means to encompass with "ethics." I might even be tempted to replace it with "appearance of ethics." It's important for people to believe that justice is being done, and if a justice has a poor sense of what looks bad, he can undermine the people's sense of finality in the Court's decisions. Or maybe this quality comes within no. 7, understanding of the world?
10.4.2005 8:04pm
Silicon Valley Jim:
Not many of the uber-brains I've met would make good justices. A justice must rule according the existing law and that would difficult for those convinced they always know best.

Well, not many of the people I've met, of any intelligence level, would make good justices. My own experience doesn't imply that "uber-brains" are the ones most likely to be "convinced they always know best." I don't know that they're less likely, but they're certainly not any more likely than those of simply higher than average intelligence, or less.

I do find that those in the legal profession cultivate the air of being convinced that they're always right, and frequently use it to bluff people. I find that far less often in, for example, physicists. The fact that Professor Volokh doesn't display that air on this blog is something that I find quite refreshing.
10.4.2005 8:13pm
WB:

Not many of the uber-brains I've met would make good justices.


Presumably this is why Prof. Volokh lists 12 other factors. Pursuant to #12 (willingness to work hard), not many of the coal miners I've met would make good justices either, but that's beside the point.
10.4.2005 8:24pm
Shelby (mail):
Stevesturm:
Would anybody really care how a nominee delegates if they knew that nominee was supportive of their position on, for example, abortion?

Actually, on this blog I'll bet a large portion - maybe a majority - of readers would care. I know I would. Abortion, or any particular issue that will come before the court, is of much less significance than the Court's ability to competently and fairly evaluate legal issues and render useful decisions. The Senate may not agree, but we work with what we've got here.

Feel free to tell your senator how to vote, using Eugene's criteria or your own, but don't think the Senate operates in a vacuum.
10.4.2005 8:25pm
alkali (mail) (www):
1) I would add to the proprietor's list, per Dean Pound:

Noli quaerere fiere iudex nisi valeas virtute irrumpere iniquitates. "Seek not to be made a judge unless thou have the strength to take away iniquities." (Ecclesiasticus VII, 6)

2) Shelby writes:

Abortion, or any particular issue that will come before the court, is of much less significance than the Court's ability to competently and fairly evaluate legal issues and render useful decisions.

I do not believe that anyone who thinks that abortion is always murder could hold that view.
10.4.2005 8:47pm
ak3515 (mail):
How about knowledge of the subject matter - federal law, constitutional law; and experience related to the subject matter?
10.4.2005 8:55pm
Simon (391563) (mail) (www):
There are always two important questions to ask:

1. What is the legal rule?
2. Who decides?

Eugene has done a good job laying out some of the substance to question one. What I'd like to know is why the answer to the second question should be President Bush. Why shouldn't we want -- or demand -- nominees who have been vetted by tens if not hundreds of people (prior Senate confirmations, elections, &tc) and whose work is well-known and high-profile enough to be easily evaluated?
10.4.2005 9:09pm
SimonD (www):
Two words: Antonin Scalia. ;)

But seriously, I don't think I disagree with anything on that list except point 9. The questions I would ask of a candidate would all relate to what they feel that the constitution is, what do they feel the role of the judge is, whether they believe any unenumerated powers doctrines and if so how they believe those doctrines limit the scope of judicial action, questions like that. I want to know whether they are process-oriented or result-oriented.

(Incidentally, regarding Miers and that last point - the news keeps touting that she's been a lawyer. But what is a lawyer if not result-oriented? She has twenty years experience of thinking in terms of results and how to justify them, and none of having been led by process to the correct result; she has no documented strong theory of the constituion or approach to Judging, and so is it really unreasonable to suggest that she will fill that gap with what she does know - figuring out the best result and then fitting the available facts to it?)

So yes, essentially - a Scalia or a Thomas type. The President has thusfar nominated two candidates to the Supreme Court, and I would not support either.
10.4.2005 9:56pm
Guest from Colorado (mail) (www):
Changing the subject.
To Eugene Volokh- what is it about Alex Kozinski that no one even mentions him except perhaps maybe you? Is he that far from the mainstream? I know that he supports the Bill of Rights, probably more than anyone else. Is he just too bizarre in personal style to be mentioned? I'm sure the media would love him especially if he got in front of his desk at a future Senate hearing and showed them how his father smuggled potatoes. Do you have to be born in this country to be a Supreme Court Justice? Would three Jews on the Supreme Court be too many? For what little it's worth I wrote a letter to the White House supporting the nomination of Alex Kozinski.
10.4.2005 10:06pm
Jeff Leyser (mail):
One item strikes me as missing from the list, altough one could argue it is implied:

A history of previous, notable, accomplishments

By this I do not mean a record of judicial thought. Rather, I mean that the Supreme Court should be viewed as the pinnacle of one's career, not an entry or mid-level position. Any nominee should show that he/she has a track record of making deep, meaningful, elite-level contributions. This is one area in which I find Ms. Miers to be demonstrably, and severely, lacking.
10.4.2005 10:45pm
Murph (mail):
The item striking me as missing is judicial modesty. With a government wherein Senators call hearings on baseball and SCOTUS mandates PGA rules regarding golf cart usage, a modesty which clearly states not all disputes are either federal or judicable trumps many of the attributes listed.
10.4.2005 11:29pm
murky (mail) (www):
You left out knowledge of the law, judging and how it works. I wonder if Bush has ever read a judicial opinion.
10.4.2005 11:34pm
david blue (mail) (www):
A couple of possible additions to the list:
1. Relevant job experience.
2. The ability to be independent of, to the point of ruling against in an important case, the President who nominated the Justice to the Court.

#1 is to a significant extent in the eye of the beholder, but some (Randy Barnett, for example) have argued powerfully that Miers lacks it. I do think there is a serious question, objectively speaking, as to whether Miers has qualification #2.
10.4.2005 11:57pm
Bezuhov (mail):
"And isn't your list, or any list of qualifications, for that matter, merely a surrogate for asking what the public would really like to know... how a nominee intends to vote on the issues that matter to us?"

No.

"Would anybody really care how a nominee delegates if they knew that nominee was supportive of their position on, for example, abortion?"

Yes.
10.5.2005 12:39am
murky (mail) (www):
We need a theory of judging. I suppose there aren't any textbooks, and that all judges are auto-didacts with regard to forming a judicial opinion or ruling, because even though most go to law school none go to judge school. It's disturbing, since it's supposed to be an intellectual enterprise.
10.5.2005 12:53am
SimonD (www):
I suppose there aren't any textbooks [on Judging]
Oh, I don't know.
10.5.2005 1:27am
cfw (mail):
Age seems relatively important - one who has a good bit to learn should be young enough (or young at heart enough) to learn quickly and gracefully what one must know.

The brain ages at different rates in different people. If HM as the brain of an average 40 year old, she may be fine. If she has the brain of an average 60 year old (in terms of ability to learn new doctrines - such as the intricacies of death penalty cases since 1976), she could end up being carried by clerks and other justices a bit more than one would like.

I am not too concerned about her ability to vote intelligently on opinions offered by others, but the ten opinions (or so) she may be asked to draft each year could end up looking like Roe v. Wade (sort of cobbled up and not tied securely to existing doctrines). I worry about the "loose cannon" problem.
10.5.2005 1:40am
guest from TX:
I suspect that if Harriet Miers had gone to Yale/Harvard/Stanford and perhaps had clerked on the Supreme Court, but then had the exact same career she has had, then most of the naysayers would be solidly behind her. It seems as if her real problem in the blawg-world is that she doesn't have the resume of a law professor.

Chief Justice Roberts did not have a very long judicial career before his nomination, yet look at the support he held on this board. While he had a stellar career in his chosen milieu, so did Harriet Miers. Yet it seems so easy to discount this success because it was gained in Dallas rather than DC (even though she has had phenomenal success in DC as well - last I looked White House Counsel was a hard gig to get).

I take comfort in the fact that every person whom she is compared unfavorably to (Luttig, McConnell, etc) fits that academic mold.
10.5.2005 4:45am
Medis:
guest from TX,

I think you are wrong. There are many people who went to those law schools and clerked for a Supreme Court Justice and who are not qualified to be a Supreme Court Justice. And the obvious reason in most cases is a lack of relevant experiences and accomplishments, just as the case with Miers.

Roberts, of course, is distinct in that area as well. The point about Roberts is not just that he was a success in his "chosen milieu." The point is that his career was in fact focused on litigation before the Supreme Court, and as a result he had a great deal of relevant experience and accomplishments.

Miers, in contrast, has done almost nothing that would prepare her for the Supreme Court. And no, you don't have to be a law professor or a judge, but you could look at people like Roberts who were Supreme Court litigators, or maybe specialists in Con Law (like Rehnquist, who headed the OLC), or people who headed federal agencies with law enforcement responsibilities (like Thomas and the EEOC).

Again, the bottom line is that simply being a success as a lawyer hardly makes one qualified for the Supreme Court, as most successful lawyers would be willing to admit. You should also have relevant experience and accomplishments, and that is where Miers is clearly (and in my mind, unexcusably) deficient.

Incidentally, that White House Counsel "gig" was not exactly given out on a nationwide search either--as we all know by now, Miers was brought into the White House as Staff Secretary and simply worked her way up inside the White House. It is also not particularly relevant to Supreme Court practice, so even if it did count in favor of calling her a success as a lawyer, it is once again not particularly relevant experience for being a Supreme Court Justice.

Finally, I think Volokh's idea is to try to reduce the benefits of experience to a list of attributes one might possess, and then ask if we could ascertain that someone had such attributes without requiring that they have the experience. I do not think that is a promising project: experience is such a fundamental component in our development, and so comprehensive in terms of the attributes it shapes, that trying to replace an experience requirement with this list of attributes seems pretty foolish.
10.5.2005 7:51am
Phil (mail):
guest from TX wrote, inter alia, "While [Roberts] had a stellar career in his chosen milieu, so did Harriet Miers. Yet it seems so easy to discount this success because it was gained in Dallas rather than DC (even though she has had phenomenal success in DC as well - last I looked White House Counsel was a hard gig to get)."
I have asked three times now on various strands, so please will someone tell me: exactly what has Miers done as an attorney. I am not picky, a cite to her big case in the 5th Cir. or TX Sup Ct, some amazing trial she did, heck, even a big transaction that was materminded by her. As I have written elsewhere, I am not especially opposed to her but when someone's major qualification is 30 years as a "practicing attorney", we really need to know exactly what she did.
10.5.2005 8:56am
cfw (mail):
In assessing practices, one can properly compare a firm of state-wide renown, that HM managed, to a more nationally known firm, such as Latham &Watkins. L&W in DC these days generally draws bigger, better, harder cases.

Also compare the practice of a Maureen Mahoney, at L&W in DC and the SG office, distinguished by arguments she got to make to the USSCT, with HM, who had 1 paid appearance at a fed appeals court, and 4 in Texas supreme court. (What was the problem with Mahoney - too centrist or unknown to WH?)

I would also distinguish a lawyer at a firm who has developed and maintained a multi-million dollar portable book of business (my perception of Lewis Powell) to a lawyer whose forte is managing a firm for those that bring in the big clients. Law business management is perhaps less of a qualification for the USSCT than drafting briefs and important legal memos, or articles and books, and defending those writings in battles with peers.

HM had great success (from her perspective) with one client (Bush et ux) but not so much that I have seen with other clients. She has not had a long run as WH counsel, and appears not to have been asked to grapple with torture/coercive interrogation issues.

On the plus side, she made law review and rose to distinguished lawyer status as a woman in Texas during a time when women lawyers were not routinely trusted with big cients. If she had married and had children, I doubt she would have had the succss she had. Powell did not have the same sex barriers HM had to overcome.

I would also ask about how the lawyer gets her jobs done. If her practice as a fully-trained lawyer has been to start work at 4 am and simply log more hours than anyone else around - using a sort of brute force approach - I wonder about a) a possible lack of cleverness or b) a lack of work/life balance that points toward possible bouts of depression.
10.5.2005 9:41am
CJ:
How about dedication to upholding the Constitution rather than the governmental status quo?
10.5.2005 10:01am
A.S.:
"Again, the bottom line is that simply being a success as a lawyer hardly makes one qualified for the Supreme Court, as most successful lawyers would be willing to admit."

No, I completely disagree. While success as a lawyer alone does not make one qualified for the Supreme Court, it most certainly is evidence in support of many of the qualities to which Eugene (and others here) refer.

I had this conversation yesterday in the comments to Randy Barnett's post on his WSJ column. I see a LOT of successful lawyers who lack the academic/Con Law/Appelate Court background that typical nominees have but who I think would make EXCELLENT Supreme Court justices. I mentioned, for example, yesterday, Marty Lipton and Joe Flom, among other transactional lawyers. I would venture to guess that Joe Flom has very limited background in Con Law, for example (yeah, my M&A practice doesn't use con law very much either). But his successful M&A practice indicates, to me, at least, that he has VIRTUALLY ALL of the 13 qualities mentioned by Eugene. And I think that is the case for many successful attorneys in private practice.
10.5.2005 12:05pm
A.S.:
"If we come up with a fairly well-understood list, how do we judge nominees -- and of course right now we're talking about Harriet Miers -- against it?"

Also, I wanted to comment on this point of Eugene's. I think it is extremely difficult to judge nominees on most of the qualities to which Eugene refers. Let's remove it from Miers. What about Roberts, for example. Can anyone point me to an example of evidence that Roberts has the following quality: "9. Creativity in thinking up (within the permissible legal boundaries) solutions that accomplish the goals that one is (properly) trying to accomplish, for instance in crafting a common-law rule, or an interpretation of a statute that's consistent with the text yet likely to accomplish the statutory goals."

These type of vague qualities are difficult enough to show evidence for. But I wonder how any lawyer who has practiced privately is supposed to show them, given the constraints of attorney-client privilege?
10.5.2005 12:20pm
SimonD (www):
It seems as if her real problem in the blawg-world is that she doesn't have the resume of a law professor. Chief Justice Roberts did not have a very long judicial career before his nomination, yet look at the support he held on this board.
Yes, that is something that I think is now becoming very difficult for a lot of Republicans. And I take no pride in saying "I told you so", but I opposed Roberts because I said credentials weren't as important as a solid and demonstrable commitment to process-oriented originalist judicial philosophy, so I feel very comfortable and consistent in saying exactly the same thing about Miers. :p
10.5.2005 12:37pm
SimonD (www):
A.S.-
No, I completely disagree. While success as a lawyer alone does not make one qualified for the Supreme Court, it most certainly is evidence in support of many of the qualities to which Eugene (and others here) refer.

I had this conversation yesterday in the comments to Randy Barnett's post on his WSJ column. I see a LOT of successful lawyers who lack the academic/Con Law/Appelate Court background that typical nominees have but who I think would make EXCELLENT Supreme Court justices.
I disagree, for the reasons given here.
10.5.2005 12:42pm
erp (mail):
Silicon Valley J, Don't be fooled by those physicists. My son is one of those critters, so I've been around a lot of them and any modesty displayed for public consumption masks fairly well developed egos. That said, their work isn't based on opinions.

My comment above was about those in the law biz, not scientists, and offer as a prime example of self regard played out to its furthest point is Lawrence Tribe, boy genius who will never be on the Supreme Court even thought he was thought by many as the brightest of the bright legal lights prior to the self-inflicted fatal error of distorting Bork's record during those long-ago hearings.

It was cathartic for this old party to see him on Fox News this morning commenting on soon-to-be Justice Miers, a women who went to SMU law school, oh it's quite unbearable. The established order of the universe has been upended by a mousy born-again! Quelle Horreur!
10.5.2005 12:42pm
Anand H (mail):
If we were defining a product and these were attributes to be considered, I would suggest a refining via "Kano Analysis":
i.e. how does satisfaction with a particular justice pick rise when you increase one of the variables? There are basically 3 answers: Linear satisfiers, where more of the feature creates increased satisfaction, dissatisfiers, where a decrease below a certain amount causes dissatisfaction, but incremental value beyond a threshold doesn't help much, and delighters: we don't notice the absence, but if present the quality adds a great deal.
From the discussion, it appears that intelligence is generally seen as a dissatisfier: we don't want a stupid judge, but beyond a point it doesn't add much. Good judgement in delegation, (13) strikes me as probably a delighter - presumably this makes a much more effective judge, but as long as the judge is willing to work hard, they might make up for not being a good delegator. I would consider "Understanding of the world" to be a linear satisfier.
Of course, this are all the possibilities assuming that we are agreed that the qualities Eugene has written up are positive ones. However, a small majority seem to understand judicial activism as "thwarting the will of the majority of people" rather than "willingness to subordinate one's views to legal commands". For them the latter is presumably a negative satisfier.
10.5.2005 2:41pm