The Supreme Court and Constitutional Theory:
Ann Althouse offers some thoughts on the Miers nomination:
  [Miers'] lack of interest in theory has bothered a lot of lawprofs, including me. Conlawprofs are biased in favor of theory. If you are going to devote your life to the subject of constitutional law, as an academic subject, you are probably the sort of person who is attracted to abstractions, theories, and larger patterns and aspirations. . . .
  Thinking about it that way has begun to thaw my opposition to Miers. Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk? Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer's methods to resolve the problem at hand. What is wrong with having that style of analysis in the mix? We need a safeguard against the excessively theoretical.
  This brings up two interesting questions: First, how many of the sitting Justices are constitutional theorists? And second, how do we know that Harriett Miers lacks an interest in theory? On the latter question, it seems to me that we don't really know enough to say.
Dan Schmutter:
>Why is it not a good thing to have one person on the Court who >approaches constitutional decisionmaking the way a lawyer would deal >with the next legal problem that comes across the desk?

The reason that immediately comes to my mind is that a lawyer concerns himself only with that client and that case when dealing with a legal issue that come across his desk. This is largely true for most judges as well.

Decisions of The United States Supreme Court, however, have implications well beyond the facts of the case being decided. As a result, the Justices must be able to think in far broader and more theoretical terms when rendering a decision.
10.11.2005 12:20pm
Tom11 (mail) (www):
Third question:

Even granting Ann Althouse's assumption that Miers is uninterested in theory, does it necessarily follow that she would be a 'practical constructionist' (for lack of a better term)?

It's not a huge stretch to imagine a hypothetical person who has no interest in Constitutional theory and would simply use the position of Justice to advance his/her own views.

For me it's the unknown/unproven quantity that is a problem. I'll just have to wait and see since caller ID indicates W has not yet called.
10.11.2005 12:22pm
Anderson (mail) (www):
I'm not terribly concerned that Miers allegedly has no "theory" or "judicial philosophy."

The reason she's unqualified is that she has no experience in constitutional law. She has no practice handling cases of constitutional import. She has not spent any part of her career thinking about the Constitution for a living.
10.11.2005 12:27pm
Unnamed Co-Conspirator:
Althouse must be chanelling Diane Feinstein. The approach that she for some reason thinks would be a refreshing change is exactly what Kennedy, O'Connor, Breyer, Souter, Ginsburg and Stevens have been giving us. More adherence to a system of interpretation and less result first-reasoning as an afterthought jurisprudence are what we need.
10.11.2005 12:37pm
What is wrong with using the standard lawyer's methods to decide issues involving circuit splits, disagreements between federal and state courts on issues of federallaw, and important questions of federal law that have never been and should be decided by the Supreme Court?

Because those are the cases where standard lawyer's methods can lead to either outcome!
10.11.2005 12:47pm
Roach (mail) (www):
If one really wanted a practical intellect on the court, then one would have a distinguished district court judge, which is waht I would favor. Judging is different from advocating; as others have pointed out, one must consider not just how to advance one's position but of the secondary adn tertiary effects on the law as a cohernet body. In other words, one must be wise and knowledgable of all of the related cases, which one's law clerks and the advocates cannot typically compel one to do.

There will be two problems with her lack of intellect and experience. First, she'll be isolated from the other Justices and will become close to her fawning law clerks. Second, these law clerks will push her in random directions that she won't have the intellectual or moral wherewithal to resist. Finally, she'll likely make decisions not for her preferences, but out of concerns for respectability and going with the middle path, which seems to have characterized her whole career. Conservatives think that something is definitely wrong with the Court and its jurisprudence and that one needs to bring to bear a coherent and controversial philosophy to the table to recognize the problem and have the moral courage to fix it. Because to fix it will require unpopularity, death threats, castigation in the NY Times and a lot of other experiences that Miss Congeniality seems to have studiously avoided in her career, in part as the epitome of the nicey-nice and anti-intellectual atmosphere of Dallas, Texas.

(Before you knock me as a blue-state snob, understand I practiced commercial litigation in Dallas for 5 years).
10.11.2005 12:58pm
PG (mail) (www):
On the latter question, it seems to me that we don't really know enough to say.

On almost any question regarding Harriet Miers, it seems to me that we don't really know enough to say. Those who attempt to criticize her as a lightweight are scolded by those who wish to extrapolate from a thin public record to exalt her.
At times like these, it may be wisest not to spout opinions but to demand that the White House release information so that we can have informed judgments. Otherwise it'll just be more back-and-forth with very little real basis except in imbecilic items like personal correspondence.

That said, I'm interested in the Supreme Court history that's been thrown up with the recent nominations, and wonder if anyone can think of a justice who did "approach constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk"? Has this been considered a successful method in the past?
10.11.2005 1:01pm
This reminds me of Keynes' quote that (to paraphrase) people who claim to prize action and despise theory are merely in the grip of some much older theory. Someone who unknowingly holds onto such a theory, without being able to express explicitly what it is -- much less analyze it or defend it -- can be especially dangerous.
10.11.2005 1:30pm
Houston Lawyer:
The "lack of interest in theory" is just another way of stating that she is a blank slate. I suspect law profs, like many conservatives, wanted a nomination of someone with an established theory either (a) to assure themselves that she is on the right side or (b) to give themselves ammunition to attack her nomination. I suspect we would have heard a lot fewer objections from the right regarding her qualifications if she were a known quantity. Getting the results you want from a nominee is a necessary, but not a sufficient, justification for a nomination. The "trust me" strategy deprives us all of critical information.

That being said, I believe that most attorneys that have survived partnership track at a large firm have enough book smarts to be a justice on the supreme court. Whether you trust their judgement on any particular matter is a completely different question.
10.11.2005 1:34pm
Why is everyone talking about constitutional law? The Court decides a lot of non-constitutional cases too...
10.11.2005 1:42pm
Drew (mail):
Dan writes: "Decisions of The United States Supreme Court, however, have implications well beyond the facts of the case being decided. As a result, the Justices must be able to think in far broader and more theoretical terms when rendering a decision."

As a practicing lawyer (who is lukewarm on Meirs), it is a regular occurence to be faced with "bad facts make bad law" as the only explanation for the holding of a particular case. Someone who practices has to evaluate appellate opinions from a broad range of practical factual scenarios, judges are more often wearing the blinders. Whatever you may think of them philosophically, one only has to look at the enormous amount of litigation and uncertainty in the "Terry stops" area to realize that some judges have no ability to draft opinions thinking about implications beyond the facts of the case.
10.11.2005 2:46pm
Unnamed Co-Conspirator:
zzyz, Constitutional law deserves more attention because when the Court decides a case on grounds it identifies as constitutional, it claims to be the last word on the matter, sometimes removing the issue from legislative action altogether. This isn't always the effect, particularly if the resolution of the constitutional controversy is to uphold government action (as in Kelo or Grutter) (Roe, of course, did remove an issue from the possibility of legislation). One argument favoring reluctance in exercising the power of judicial review, even if it appears that the exercise of government power goes beyond what is appropriate, is that the power to correct the excess remains in the legislature. That's two strikes against a decision like Roe. Contrast the activist approach with the reluctance of say, a Felix Frankfurter, to declare legislation unconstitutional. Frankfurter certainly wasn't a political conservative in his day, but his judicial philosophy could be described as a conservative one.
10.11.2005 2:46pm
Dave Hardy (mail) (www):
Also, most other legal matters (contract, torts, corporation law) will be settled in state court and, when brought as a diversity issue, rarely get to the Supremes. So Con law is a major component of the Court's workload. Its remaining docket is, oh ERISA cases and now and then a securities case, stuff like that, where if it fouls up it affects fairly narrow areas of the law. In the obscure area where I practiced -- Endangered Species Act -- I don't think the Court has taken a case (other than dismissing one for lack of standing) in 20 years.
10.11.2005 3:00pm
arbitraryaardvark (mail) (www):
I agree with Althouse. I've made similar comments at catallarchy. Several people have been appointed to the court because of work they did as lawyers - Thurgood Marshall and RBG. Being a lawyer isn't inconsistent with an interest in constitutional law or the big picture. Bar association presidents tend to look at the big picture. When you run a good sized law firm and have clients like microsoft and disney, the objective is not to win lawsuits but to avoid them by thinking long term. That said, she's clerked in federal court, won a constitutional case at the high court, and has solid credentials and experience most of us don't have. She's a hard worker, said to be tough as nails. Can we realisticly expect Bush to do much better? She's no Sherman Minton. She'll hold her own and pull her weight. What she stands for , we don't know, but Bush does - advantage him.
10.11.2005 3:57pm
David Sucher (mail) (www):
The Miers' nomination raises two issues:
1. Is it appropriate to have a "general practioner" as a Justice? i.e. someone without a deep immersion in the fine points of Constitutional Law?
2. If so, does Ms. Miers make the grade?
Two distinct questions.
10.11.2005 4:13pm
Anderson (mail) (www):

The Miers' nomination raises two issues:
1. Is it appropriate to have a "general practioner" as a Justice? i.e. someone without a deep immersion in the fine points of Constitutional Law?
2. If so, does Ms. Miers make the grade?
Two distinct questions.
Right, and if we were going to list the top 100 "general practitioners" around the country, before the Miers nomination, Miers wouldn't have made that list either. (She did make someone's "top lawyers" list, but because of her White House influence.)

Btw, I've been rather impressed by how many conservative pundits have shown some intellectual conscience on this nomination, tho it only makes the holdouts even more distressing.
10.11.2005 4:38pm
Unnamed Co-Conspirator:
Fine points of constitutional law exist only for someone seeking to construe the language so that it produces a result other than one that can be reconciled with the language's original meaning. That doesn't mean that anyone can do the job, but it does means that the job doesn't require a supernatural ability to see emanating penumbras, for example. It helps if a justice is smart enough to cut the Gordian knot -- in other words, smart enough to understand when one of his or her colleagues on the court is conjuring such imaginary penumbras or inverting the equal protection clause. Rehnquist would be a good example, and his dissent in Roe demonstrated his ability to see clearly through Blackmun's sophistry.

There's no reason why a general practitioner can't be a good justice. Robert Jackson was a tax lawyer before joining FDR's administration, but certainly his being SG and then AG provided him the opportunity to consider constitutional issues. Miers' role in the WH may have given her this opportunity also, but the positions taken by the Administration on constitutional issues doesn't inspire confidence in the person the President has said "shares his judicial philosophy."
10.11.2005 5:20pm
Bruce Hayden (mail) (www):
Well, I am finding this whole thing interesting to say the least, more about those opposing her, than really about her.

Somehow, someone like Chief Justice Roberts is ok because he has spent a year or so on an appeals court, when that is probably 5% of his entire time in practice, but missing that 5% is crucial for her. On the other hand, those judges with significant experience as appeals judges are usually not considered because they have a judicial record. So, we seem to be at a place where a nominee for the Supreme Court needs to have spent, say, 5%-15% of his career on an appealate bench, no more, no less.

Frankly, I think that statutory interpretation is probably as important, if not more important, esp. to me, than being a cracker jack constitutional law scholor. The recent SC case that has the most effect on my life, as a patent attorney, is the Festo patent law Doctrine of Equivalents case. I have to deal with its ramifications every time I deal with patents and patent applications. Then there is the Lotus v. Borland software copyright (non) decision. That mess is still not cleaned up.

Arguably the average Con Law prof isn't going to have even 10% of the practice that she has had in statutory construction. Most of what normal lawyers deal with is how to interpret statutes, and not the precise limits of, as one suggested above, Terry Stops.
10.11.2005 6:12pm
David Sucher (mail) (www):
So if a "general practioner" could be suitable Supreme Court material, then how would one go about determining if a particular GP was suitable?

I guess in the rough justice of the world, a record of climbing up the greasy pole and receiving accolades of various sorts from peers and the boot-above does indeed indicate a fair talent. (Similar to law school grades , which may not really indicate who will be a good practioner but, in the absence of anything else, is a reasonable proxy.) So for the GP is it # cases won? size of firm managed? $$$ recovered for clients? number of committees chaired? peer-group ratings as an attorney? what? etc etc.
10.11.2005 6:19pm

I don't think Roberts would be OK if he had only had a brief time on a COA. It was his long time practicing before the Court that made him well qualified.

Anyway, I actually think it would be good to have a distinguished former trial attorney on the Court. As others have pointed out, however, Miers was not a sufficiently distinguished trial attorney. Moreover, having been a distinguished trial attorney is not incompatible with also spending some time as a judge, or taking a high position in federal law enforcement, or writing several important articles, and so on.

So, my complaint is not with the "type" of attorney Miers has been. My complaint is that she is not a particularly well-qualified version of that type.
10.11.2005 6:29pm
Goober (mail):
First, how many of the sitting Justices are constitutional theorists?

If by that you mean how many have a theory of what the Constitution means, all but Breyer.
10.11.2005 6:33pm
David Sucher,

Steve Susman's bio--of Susman-Godfrey, a Texas firm--was posted at confirmthem. I'm sure there are many equally good examples, but I'd say this gives you a starting point on an answer. In other words, it starts by claiming he is one of the best trial lawyers in the country, and by the end of it I am inclined to suspect that was not an overstatement.
10.11.2005 6:34pm
Houston Lawyer:
Let us please not have a discussion of how a great trial lawyer would make a good supreme court justice pick. Does anyone here want the guy who just convinced a jury of uneducated mullets to award $250,000,000 to his client just because his client's late husband once took Vioxx to be deciding any point of law for the rest of us? Think of John Edwards as a supreme court nominee by the next democrat president. [Picture a Lisa Simpson shudder here]
10.11.2005 7:33pm
So, do most of the commenters on this site find the questions posed to be too difficult, and they've decided to digress on their own tangents?

I think that the clearest examples of constitutional theorists are Scalia, Thomas and Breyer.

Scalia has his basic thoughts written in A Matter of Interpretation, he discusses originalism and textualism frequently on the lecture circuit, his Casey dissent is a classic on the role of judges, and through his opinions and other writings, he has established that he is, to some extent, a constitutional theorist.

Thomas's opinions, particularly his concurrences and separate opinions, likewise carve out a theory of constitutional interpretation that includes more forceful criticisms of stare decisis.

Breyer has his new book, which I have not yet read, but which is billed at least as a response to Scalia. He's given lectures and debated publicly on the merits of certain interpretive sources (most notably international law and legislative history) in statutory and constitutional interpretation. I think it's fair to say that he's a theorist in that he's gone out of his way to articulate a theory of how to interpret the constitution.

For the others, I don't know enough to say. This is the part where the comment breaks down into what might be parroting the platitudes of others.

Souter -- seems to be enigmatic in the sense of being difficult to pin down, but when he writes separate opinions critiquing Scalia and Thomas, he is often good at criticizing them on their own terms. Perhaps he hasn't put "vision" out there (or perhaps he has -- I really don't know), but he has shown himself to be adept at dissecting the visions of others and thoughtful about theory in general.

Ginsburg - I don't know enough about her opinions to say. Her switch in Booker was really strange, but of course she's written many other opinions. I don't know enough to say more.

Kennedy - his recent flaky opinions strike me as civics lectures rather than expositions of constitutional theory. He clearly thinks that the Constitution is alive, soft and fluffy and that international law is awesome, but I'm not sure that I'd describe him as a theorist. I'm a bit more familiar with his work than I am with Ginsburg's but still largely unqualified to comment.

O'Connor - too difficult to pin down for me. She's clearly a pragmatist in some regards, more interested in standards than rules, and thoughtful in general. I don't know if that makes her a "theorist" or not.

Roberts - of course, I have no idea, and CJ Roberts said in his confirmation hearings something to the effect that the Supreme Court seems to have different theories for different constitutional provisions and that, while he understands that some provisions require a theory to interpret (what does "equal" mean in the context of "equal protection"?), developing and defending an overarching philosophy is more appropriate for an academic than a judge. Time will tell whether his jurisprudence bears out this thought.

For Miers, I have no idea what the answer is to your question. It reminds me of lots of summer associate memos I did a while back, where I would say "I looked hard, I'm confident that I was thorough, and I haven't found a case that says X, but I'd still be wary of saying that none exists." The best answer so far to the "how do we know she doesn't" question is that "we've seen nothing to indicate that she does."
10.11.2005 7:49pm
Unnamed Co-Conspirator:
Actually, WB, Roberts' comments on constitutional interpretation, including his equal protection clause example, were very informative. If less attention were paid to irrelevant considerations such as whether a nominee (or prospective nominee, in the selection process) is politically conservative or liberal, or, even worse, pro-life or pro-choice, and more attention paid to the nominee's view of the judiciary's role (which is of course what Roberts emphasized over and over again, at least when he managed to get a few words in among the bloviations of the Senators), we would have fewer of the supposed left turns by justices after joining the court. The notion of a judge becoming liberal while on the court really is a silly one, demonstrating just how clueless conservatives are regarding what questions to ask before putting someone on the bench. Something went right in the selection of John Roberts. It's hard to imagine that a similar process was behind this pick, in light of Karl Rove assuring James Dobson that Miers is pro life.
10.12.2005 12:26pm