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Law Professors For the Supreme Court?:
Beldar suggests that some critics of the Miers nomination want the President to nominate a law professor for the Supreme Court. I haven't heard anyone clamoring for this, but it brings up an interesting question: Is experience as a law professor good training for service as a Supreme Court Justice?

  Here's my tentative thought, if you'll let me paint with a broad brush. As with any credential, the ultimate issue is the person, not their jobs. It's easy to read too much into any one experience: We naturally tend to assume that someone who has had a particular experience is "that type" of person. With that said, my instinct is that extensive experience as a law professor probably isn't very good training for service as a Supreme Court Justice.

  Here's my thinking. As most practicing lawyers know, academia can be a little bit, well, quirky. Law professors generally are rewarded for being clever, or for catching a wave of fashionable ideas and writing a lot about them. Within the academy, it's frequently better to be gloriously wrong than modestly right.

  In my opinion, the qualities of a good Justice are very different. I side with Learned Hand on this one: "The spirit of liberty is the spirit which is not too sure that it is right." Being fashionable, exceedingly clever, or gloriously wrong aren't assets for judges. The case of Yale Law professor William O. Douglas illustrates the problem. Douglas was brilliant, and a very successful academic as an important figure in the legal realist movement of the 1930s. But those qualities didn't translate well into being a good Justice. His opinions are bold, but also sloppy and frustrating; If you're trying to make sense of an area of law, you hope that the key decision in the field isn't a Douglas opinion.

  That's my tentative reaction, anyway. As always, actual mileage may vary: As I said, what matters is the person rather than the credential. Some academics are influenced by this environment more than others, and some have made terrific judges and Justices. But as a rule, I'm not sure that lots of time in academia is the best credential for a Supreme Court Justice. (Oh, and for any law professors reading this, please understand that I think you would make a simply wonderful Justice. It's the other professors that make me worry.)
JayJ:
To make a brief comment: Perhaps a bottom line point that can be made is that being a great law professor does not automatically mean you will be a great Justice. And as is pointed out in the original post, it all comes down to the individual: there are plenty of law professors who, if nominated to the Supreme Court without any interim job, would make excellent Sup. Ct. Justices (just as there are plenty of Federal Appeals Court Judges who would not make excellent Sup Ct. Justices).
10.8.2005 5:51pm
Jacob:
Orin's description of law professors (which he admittedly takes effort to qualify) doesn't seem to apply to anywhere near the majority of law professors I've met. It seems to most accurately describe the most notable professors well, but falls far short of applying to most others (not all law professors study/teach fun, hot topic con law courses). In fact, I'm not sure most law professors aren't as "unqualified" as Ms. Miers- having an expertise in a particular area of law, but nothing so relevant to work on the Court.
10.8.2005 6:15pm
Medis:
I'd tend to disfavor nominees whose ONLY qualification was being a distinguished law professor. But if they were also, say, distinguished practitioners, government officials, or judges, I would consider extensive academic work in an area relevant to the Court's work a plus.
10.8.2005 6:16pm
david blue (mail) (www):
Orin, what do you think of Breyer and Scalia? They are probably the two most prominent ex-professors in the judiciary, and most would say that they're also pretty good at their current jobs. Of course, neither went directly from academia to the Supremes, and maybe that's the critical point. I do think that Scalia's effectiveness as a Justice has suffered considerably from being too sure that he is right, and maybe this is left over from his academic days. Or maybe it's just him.
10.8.2005 6:18pm
Joel B. (mail):
Whoa! So now being clever is a negative for the Supreme Court huh? What seems to be the real complaint about Miers? That's she's not who the complainer wouldn't chosen. Gee whiz.

"The spirit of liberty is the spirit which is not too sure that it is right." Huh Interesting, why one might think that wasn't the person who had gone on to credential themselves with all sorts of heavy degrees and publish all sorts of articles, in fact that kind of sounds like what one might expect from an individual who worked hard through life to acheive and didn't trouble them too much with gassy publications.

Essentially, all this complaining by many about Miers is just silly. I understand she hasn't wrote treatises about Con Law? But that's a bad thing?
10.8.2005 6:18pm
Richard Riley (mail):
I personally am warming to Harriet Miers. Admittedly that is because I am a moderate Democrat and I think she'd be a hardworking moderate Justice with a pro-business bent, and thus be my representative on the Court in Hruskian sense. I think she would wiggle and waffle and in the end vote not to overturn Roe, probably with a sorrowful, not very analytically sound concurring opinion.

So I am sympathetic to Beldar's summary of her qualifications to which Prof Kerr links - although Beldar phrases them tendentiously and overstates things in at least one place. She was not an editor of "the top journal at her law school." The top journal at her law school is the Southern Methodist University Law Review. Miers was on the editorial staff of the Southwestern Law Journal - a perfectly good journal, but not the flagship journal at SMU.
10.8.2005 6:26pm
Igglephan:
Felix Frankfurter's opinions, too, tend to be very didactic. He was a difficult person to work with, too, so I think Orin's point about the person being the most important thing is right.
10.8.2005 6:32pm
A Blogger:
Richard,

Actually, I think the SMU Law Review and the Southwestern Law Journal are the same thing:

"The SMU Law Review, formerly the Southwestern Law Journal, is published four times each year and reaches law schools, attorneys, and judges throughout the United States and abroad."

http://www.smu.edu/lra/Journals/SMULR/Overview.asp
10.8.2005 6:33pm
Richard Riley (mail):
Blogger -

Thanks for the info on the identity of the Southwestern Law Journal and SMU Law Review. Which raises her another slight notch in my estimation. (I speak as one who did not make law review.)
10.8.2005 6:46pm
David M. Nieporent (www):
I'd tend to disfavor nominees whose ONLY qualification was being a distinguished law professor. But if they were also, say, distinguished practitioners, government officials, or judges, I would consider extensive academic work in an area relevant to the Court's work a plus.

Medis is of course correct when he writes the above, but I think he glosses over a key point in the rhetorical campaign against Miers. It's not simply that being a law professor plus judge makes one more "qualified" than someone with Miers' background, although I think it does.

It's that being a law professor plus judge allows us to evaluate the nominee. We simply know nothing about Miers. Not about her philosophy, her views, her approach to judging, nothing. Not even her politics, although I would assume she's conservative. A professor has writings that let us know what -- and more importantly, how -- he thinks. A judge has writings that let us know what and how he thinks, and more importantly, how he judges. Miers has nothing.


Beldar is doing yeoman's work in his attempt to refute the allegation that Miers isn't qualified because she's dumb; the problem is that this is the easiest, and least compelling, argument to refute. There has been some unfortunate hyperbole questioning Miers intelligence, but most people have not been making the argument that she isn't smart. The claim that she isn't "qualified," for most people, refers not to her abstract intelligence, but to her specific intellectual views.
10.8.2005 7:03pm
Medis:
I'd agree that academic work is a useful indicator of views, but I'd also say that doing academic work over time can be a useful experience. In other words, to me this is not just a question of whether Miers believes certain things ... I want to know that she has thought about those views, tried to apply those views to particular problems, been challenged by other to defend her views and applications, and so on. In other words, I want someone with experience, not just the "right" views.
10.8.2005 7:16pm
AF:
I agree with Orin's points, but he overlooks a key reason why law professors might be good candidates: they are just about the only people, besides the Supreme Court justices themselves and maybe some Supreme Court litigators, who are experienced in interpreting federal law without being bound by the precedents of the Supreme Court.
10.8.2005 7:54pm
magoo (mail):
Law professors no, Sunday School teachers yes. Oh my.

Shumer's first question: Ms. Miers, what are your views on Darwin's theory of evolution? Should be interesting!
10.8.2005 8:33pm
Willard:
People, including some of the bloggers here, who claim that a S.C. nominee needs to have a publicly expressed philosophy of constitutional adjudication are definitely restricting the field to law professors (and perhaps a few judges). How on earth would a lawyer in private practice have such a thing?

What's funny to me is the divide in the legal community: most of us lawyers think of academics and judges as drones, probably incapable of holding jobs in the private sector, and infinitely lower in prestige than the managing partners at large law firms. Obviously that isn't the prevailing view here.
10.8.2005 8:48pm
Cornellian (mail):
Having a stint as a prof on one's resume (from a reasonable law school) is an asset as it suggests a certain minimum degree of brain power, and that one has devoted a certain amount of time to thinking seriously about a particular area of the law. Going directly from prof to Supreme Court justice probably isn't a very good idea. Besides the reasons in the post, it's been my impression that many profs have surprisingly little clue how the law works in the real world and writing law review articles is no way to gain that knowledge. I'd prefer a candidate to clerk, then work in government for a few years, do litigation in private practice for five years, then be a prof for a few more years, then get appointed to an appellate court, then get nominated for SCOTUS.
10.8.2005 8:55pm
OpposeMiers (mail) (www):
It is not only "constitutional law" -- in the sense of Brown v. Board of Education -- that a potential nominee should be familiar with, but also "constitutional law" in the sense of federal courts, federal litigation, and administrative law (which deals extensively with separation of powers concerns and the relationship between Congress and federal agencies).

The potential benefit of a Miers-type is that she may have litigated regulatory matters. In other words, she may have familiarity with administrative law, formulating federal questions, or a good working understanding of how federal courts work.

Problem: she was not a federal litigator. She did not do trials in federal district courts or try cases before federal regulatory agencies. So all of her experience in practice is not relevant to the Supreme Court. (She clerked, but simply being a clerk is not a per se qualifier for SCOTUS.)

To those who say, well, she was a great litigator in the state of Texas; well, then appoint her to a federal district court in Texas. Or put her on the Supreme Court of Texas. Or elect her to be the head of the Texas Bar. Or, frankly, if you get into the White House, have her serve as your counsel. But that doesn't mean she's qualified for the Supreme Court. Not by a long-shot.

Someone on here attacked the notion that Senators aren't per se qualified for SCOTUS. But Senators, even if their resumes are unimpressive before being elected to the Senate, once elected are actively engaged in the drafting of legislation, which requires constitutional interpretation. They gain an institutional understanding of Congress (a federal body) that is valuable on SCOTUS in deciding questions of federal law. Miers does not have a Senator's experience with federal law, so she isn't qualified in the way is the most idiotic Senator.

She's a state lawyer. Note that were she a state judge or a state legislator, then she would have experience dealing with federal law -- either writing laws that implement federal policies in your state or interpreting federal law when federal questions are raised in state court.

The fact that she "grappled" with Jones v. Bush is not really that big of a deal. The question -- as many here have asserted -- is a simple one for someone who has a working understanding of rudimentiary federal questions. I doubt that any 1L could handle the question; but I do believe that any law school graduate who clerks for a federal district court judge could win the case.

So my question to those who support Harriet Miers is this: Do you believe that a federal judicial clerkship is a per se qualifier for nomination on the Supreme Court of the United States? If not, then how is it relevant that she won Jones v. Bush?

It cannot be true that being a law professor is necessary to serve on SCOTUS; it also cannot be true that a district court clerkship is sufficient. I don't see a persuasive case for Miers, other than that Bush really, really, really likes her. Bush likes Laura Bush too, but she ain't qualified, neither.
10.8.2005 9:18pm
Tanya:
RAISE YOUR PRAYERS FOR PRESIDENT BUSH WITH OTHER AMERICANS OF FAITH – CALL THE PRAYER LINE TODAY (800) 759-0700/ or visit http://www.cbn.com/contact/prayer-form.asp?topic=Other.

When President Bush nominated John Roberts for the Supreme Court, I was excited. Finally, a pro-life nominee at a time when we controlled the Senate and could assure his confirmation!

But then, John Roberts, now Chief Justice John Roberts, failed to meet my, and I expect your, expectations. He had no record on the life of the unborn. I thought this was cowardly of Bush who had told us all that he would nominate Justices in the mold of Thomas and Scalia and then when he had the chance, did not do that.

Or maybe he did. I don’t know about you but this “you’ll be impressed with him” wink, wink business isn’t nearly as bold as I expected.

And now he gets another chance to nominate a pro-life Justice and again, he goes for a weak option in Harriet Miers.

This “trust me, wink wink” business isn’t going to work. Is President Bush ashamed of being pro-life? Why does he nominate Justices that are clearly too ashamed to be honest with the public.

Clearly, President Bush has waned from his faith and he needs our help. Please pray that President Bush finds the courage and conviction to show the liberals that he is boldly pro-life and confirm to us all that Harriet Miers is pro-life.

CALL THE PRAYER LINE TODAY AND RAISE YOUR PRAYERS WITH OTHER AMERICANS OF FAITH - (800) 759-0700. You can also submit your prayer to http://www.cbn.com/contact/prayer-form.asp?topic=Other. Tell the wonderful and faithful volunteer on the line to pray with you for Bush’s soul, that he should not be punished for misleading us all to believe he is a man of faith.
10.8.2005 9:30pm
Dave Hardy (mail) (www):
In my experience, Senators do precious little statutory drafting -- and that, usually badly. Their staffs handle most of the grunt work.

I agree with the concern that, while Ms. Miers is an experience litigator, most if not all of that comes in areas that generate very few Sup. Ct. cases.
10.8.2005 9:33pm
E S Cioe (mail) (www):
All this railing on Douglas? The man was a genius and a good justice. In his middle years, he tended to go a bit overboard (or underboard), but viewed as a whole, I think he was one of the stronger members of any of the various courts he sat on. It's a shame that the only thing we have resembling a judicial maverick these days is Thomas.
10.8.2005 9:35pm
OpposeMiers (mail) (www):
Dave Hardy:

I didn't say they did "statutory drafting" -- I said they were "actively engaged" in it. I don't think we disagree, depending on what actively and engaged mean.

But I will say that a Senator would probably understand Breyer's arguments about Congress's institutional capacities or the value of legislative history or committee reports, which David Frum argued (rightly or wrongly) on C-SPAN that Miers would not.
10.8.2005 9:44pm
Rhadamanthus (mail):
I also think that people underestimate the importance of having a cool name- especially the Chief Justice. Can you imagine the Hand court? Or even better the Judge court for Chief Justice Judge!

ES Cioe- the idea of comparing Douglas to Thomas is dangerous. You should lock the doors to prevent the ghost of the late Justice Douglas breaking in and firmly kicking you.

Seriously I would prefer all of the top tier judges to have a stint on the lower courts if only to get an idea of teh administrative work needed. I accept that history is full of people with no experience doing great jobs and vice versa. However, I stick with my analogy that promotion from within the system is better than changing someones job description totally.
10.8.2005 10:15pm
appellate lawyer (mail):
Some profs would make great judges, but most -- esp. most Con Law ones -- would be horrendous. Most Con Law profs (the ones on VC being notable exceptions) are the most blatant results-oriented types around, with everything else as window dressing.

Aside from that, I have seen pretty many profs jump into appellate briefing on their pet issues. Most stink. Many just like to cite their own articles, and their friends articles, as if that were legal authority.

If I could pick 9 profs from the rare minority of profs, then I could make a Court of them. But if I had to pick 9 random Con Law profs from the top 20 law schools, or 9 random managing partners from the top 20 firms, I'd take the firm crew, with no doubt.

In other words, I may prefer Roberts or a Prof. Volokh to a Miers, but I darn sure prefer a Miers (from what I can tell) to a Tribe, Dworkin, etc.
10.8.2005 11:15pm
Frank Drackmann (mail):
Personally, I would like to see a nominee from outside the legal profession such as a physican,scientist,nurse,pilot etc.
10.8.2005 11:30pm
Bill Dyer (mail) (www):
How am I supposed to do my job as a McBushRove flak, using psychologically tested words like "professoriat," if you guys keep being so reasonable? Sheesh. Rove's going to stop payment on this month's bribecheck!
10.8.2005 11:39pm
stealthlawprof (mail) (www):
Certainly the person is more important than the resume as such, but it is rational to expect the resume for a Supreme Court nominee to include experience grappling with some aspects of Constitutional Law. That experience could come from the federal bench; work in the DOJ, Congress (member or committee counsel); significant federal appellate litigation; or academic work. It would be inappropriate either to require one of these experiences exclusively or to eliminate people with only (or primarily) one of them. There are examples of solid Justices from each of these backgrounds, and there are examples of weak Justices from each as well.

The problem with the Miers nomination is that she has none of these experiences, and nothing indicates that she has grappled in a thoughtful way -- as judge, lawyer for the government, litigator, professor, or in any other capacity -- with the role of federal courts in American society, what it means to interpret a constitution, etc.

I have serious doubts about White House Counsel as applicable experience given that the role is as the President's lawyer not the government's lawyer. Regardless, the argument that being White House Counsel has engaged Miers on important Constitutional issues is a ruse in this case. She has been in that job for less than a year, and all the examples to which people point are issues that arose when Al Gonzales was White House Counsel.
10.9.2005 12:13am
UT Alum:
I'd love for Lino Graglia to be on the SCOTUS.
10.9.2005 12:27am
A Berman (mail):
OK, Here's a theory for why the Miers nomination is brilliant and Good For America:


Let's compare Miers to, say, McConnell. There are three main potential areas of difference between them. First, they may differ in their votes. Second, they may differ in writing ability. Third, they may differ in their ability to convince other justices or otherwise inform the process. Here's my view on all three:
1) Their votes may differ, but that will only matter in 5-4 decisions and it's hard to say who's going to be correct. Furthermore, this issue may be overwhelmed by # 3.
2) Suppose we take all the opinions written by Supreme Court Justice McConnell and say what would happen if we switched him with Justice Miers and let someone else write the opinions? There's plenty of people who would be voting with McConnell who could write excellent opinions. He won't be missed.
3) Who brings more to the court in terms of being able to inform the process with real-world experience? Miers for sure. How about ability to get along with people and convince them of something? Frankly, trial lawyers are very good at this, so all else being equal, I'd go with Miers.

In other words, their votes would be roughly the same, the written opinions will be just fine, but the court will reach better decisions due to Miers real-world experience and the ability she has of getting along with people.

How's that?
10.9.2005 1:04am
yclipse (mail):
My take on Beldar's commentary was that many of the critics seem to automatically assume that law professordom is one of the two career paths which will qualify a candidate for nomination to such a lofty position because it has given her the chance to grapple with Constitutional issues in a meaningful way.
10.9.2005 8:52am
DonL:
Regarding the rule of Law:
I'm not an attorney, so I take a perhaps broader(I didn't imply better) view of this issue. It seems that even law as constructed by man, is often flawed. We need to look to that moral law which is ingrained in each human at birth. Political law is subject to the lowest common denominator.(witness the legal definition of pornography)The battle about Miers, as well as the difference between liberals and (cultural?) conservatives is really about the recognition in everyday law and the courts of a higher law, that of our Creator.
10.9.2005 9:44am
not Hruska:
If we are to require SCOTUS nominees to have published legal analysis which reflects their own views, we have pretty well restricted ourselves to law professors. Most practicing lawyers will have a track record of legal analysis but much of it will be buried in various court files or in confidential files. Politicians are likely to have given us a public record of their views, but not in a form that reveals their analytical skills (or whether they have serviously grappled with the issues). Even Roberts, who has a very impressive record of legal analysis had not revealed much about his own views. Thus: Beldar's comment that many conservatives are seeking a law professor.
10.9.2005 10:40am
Medis:
Actually, it is not true that requiring legal publications would mean limiting the pool to law professors, because non-law professors can and do write and publish.
10.9.2005 10:54am
Hoosier:
Can we agree, for snobbery's sake, to exclude SMU faculty from SCOTUS?

Just curious.
10.9.2005 11:11am
David Sucher (mail) (www):
Do you remember what LBJ said (and I can't remember the exact context): "Hell! he ain't never even ran for dog catcher."

Justice Robets may in fact be a "brilliant" legal scholar but does he know how to find the Court House door? Has he ever had a real client? Not some Fortune 500 for whom his appearance before an Appelate court is a high-toned and abstract exercise? Let's hope he turns out to be in touch with the real world but what troubles me is that so few of you seem to think that practical experience dealing with real problems (hey! that's how things get to court!) has much to do with being a good judge. Maybe there are a few too many law professors here?

My own experience with professors is that while many are brilliant, they also often seem to be just a bit too removed from the real world situations which generate the cases.
10.9.2005 11:39am
John Lederer (mail):
"All this railing on Douglas? The man was a genius and a good justice."


And, if you did not think so, he would lie about his background until he convinced you.
10.9.2005 11:44am
John Lederer (mail):
Sadly, I think the probability of a law professor being a good addition to this Supreme Court is low. Another Court, yes, that could well be, but not this Court.


Law School faculties have become increasingly ideological, perhaps as the result of the modern academic understanding of how law develops. Adding another ideologically centered Justice to this Court would just be adding another log to the bonfire.

My own desire would be for a trial court judge or a practising lawyer (say, Miers is one of those, isn't she?). I think it would infiltrate some practicality, desire for certainty, and honesty, into a court that is a bit wrapped up over ideology.

As evidence I offer: the increased suicide and mental breakdown right of college admissions administrators attempting to comply with the Bollinger decisions while recognizing that the bureacratic machinery they build will end "as soon as practicable" but at least within 25 years unless O'Connor retires (ooops!); numerous boards of directors that when faced with determining minority employment policies have opted to go to lunch instead; the aberrations in the stone mason industry whose business making ten commandments monuments has picked up in some states, but died in others; strangled cries from trial lawyers who have just discovered that the factual records that they so painstakingly and expensively put together were overlooked by the Court in its rush to philosophical battle; and the dangerous and subversive determination by proctors in admiralty that they have no need for troublesome Supreme Court supervision.

Of course many law professors would not have any zest for ideology and would make fine additions.
10.9.2005 12:10pm
Medis:
David Sucher,

Personally, if a nominee was considered one of the top few trial attorneys in the country, maybe that should count as a notable qualification for the Supreme Court. But I find it interesting that on the one hand you think Roberts' time as a Supreme Court litigator doesn't count as "practical experience dealing with real problems," and yet on the other hand you want to see Miers put on the Court precisely because she does have such experience. In other words, it seems to me there is a real dissonance between how you view the Court's work when it comes to assessing Roberts' experience and how you view the Court's work when it comes to assessing whether Miers is suited for a position on the Court.

So, why not put her instead on something like a District Court, where her practical experience as a trial attorney would be more directly relevant? And I take it you would agree with me that there is nothing insulting about such a suggestion precisely because the work of the district courts is vitally important.
10.9.2005 12:16pm
Medis:
John Lederer,

Are you suggesting that any lawyer in practice would be equally well qualified?
10.9.2005 12:20pm
18 USC 1030 (mail):
First, I believe Chief Justice Roberts was an excellent pick. I'm not sure there is any question as to his intellect, and as to his experience, I believe he is well qualified. He has, though for a short period of time, sat on the bench, he has argued before the supreme court on numerous occasions, he has worked for the solicitor general’s office, he has worked in private appellate practice, he has served as a SCOTUS clerk, he has served in the justice dept., and, has defended a wide range of clients. He has defended the US government, he has defended policies while working in the executive branch, he has defended huge corporations (including work for state appellate matters), and perhaps most importantly: Roberts defended the little guy on a pro bono basis. This, in my opinion, demonstrates his knowledge and understanding of the pragmatics of the court. I am not yet convinced Miers possesses these qualifications.

Also, something that has yet to be said, and I’m not sure if I am being naïve; however, it seems to me that the main purpose of the court is to hear real cases, without issuing advisory opinions. It seems, one of the major requirements of a law prof is to deal in the quirks of the law, to point out the most unlikely of circumstances in order to say “what if?” I definitely agree that combined with other experience, especially a lower bench academia is a great resume builder so to speak. However, moving directly from classroom to court may bring some conflicting approaches to cases.
10.9.2005 6:17pm
Taimyoboi:
I would second Mr. Kerr's generalization.

Law Professors have a tendency to lose the forest for the trees.
10.10.2005 10:18am