Why Judicial Qualifications Matter:
There is a nice column by Dennis Coyle on the Miers nomination entitled Dubya Closes a Door? What Harriet Miers may mean for constitutional law. While the whole column is well worth reading, one passage in particular succinctly explains why it is ever so realistic to demand a certain kind of qualifications for a Supreme Court justice:
Perhaps President Bush was conflating liberal dominion over constitutional law and activist courts since the New Deal with intellectualism. That is easy to do, given the pervasiveness of liberal ideology in legal scholarship and academia more broadly. It is tempting to blame the root for the branch. If the liberal jurisprudential establishment emerged from elite schools and journals and spoke in large words and grand theory, the thinking might go, it can only be tamed by reaching outside the Washington-New York intelligentsia to let some Texas common sense cut them down to size.

But law, unlike politics, is inescapably an intellectual exercise, and reason is the bedrock of the rule of law. It is about the careful articulation of principles and nuanced applications, made persuasive by a compelling understanding of the constitutional order and the role of courts. Law is not molded simply by the votes of judges and justices, but in the power and cogency of written opinions and the philosophy they express, which become the fodder of law-review articles, commentaries, and conference panels, and eventually permeate the classroom teaching that forms the next generation of judges, lawyers and scholars. To bypass the opportunity to strengthen a conservative intellectual core — an elite — on the Court is not to make it a populist protector of freedom, but to abandon the field to the liberal elite.
He concludes on a note of semi-dispair:
The nomination of Harriet Miers is another chapter in the lost promise of the Reagan revolution. From the heady days of the 1980s, there have been so many missteps, perhaps including the selection of the current president's father as the custodian of the Reagan revolution. The judicial legacy of the Bushes has been raised hopes and dashed expectations: The father left us Thomas, but also Souter; the son brings Roberts, but now Miers. This may be Bush's last opportunity to make an imprint on the Supreme Court, unless health forces Justice Stevens off the bench. The next resignation may well be that of Justice Scalia, fleeing in frustration.

The Republican hold on the presidency is razor thin, control of the Senate uncertain. There could well come a day, possibly sooner rather than later, when a Democratic president places a nominee before a Democratic Senate, and there will be little talk of keeping a balance on the Court. The Court will resume its leftward march, occasionally staggering back to the right. Conservatives slowed, but did not reverse, this trend.

The moment has passed; unless this nomination is derailed by the oddest of bedfellows, it would seem that this is, as Jim Morrison intoned, the end.
This summarizes better than most that has been penned on the Miers nomination why so many of those—perhaps all—who have devoted their time and energy to this matter are reacting to this decision as they have.
Perseus (mail):
But law, unlike politics, is inescapably an intellectual exercise, and reason is the bedrock of the rule of law.

Since when is politics not an intellectual exercise? I thought that "it is the reason, alone, of the public, that ought to control and regulate the government." (Fed. 49) That includes all 3 branches of government to varying degrees. One could try to distinguish between theoretical wisdom and practical wisdom, but all politics--including Constitutional law--because it deals with things that change rather than the eternal, inhabits the realm of practical wisdom.
10.18.2005 1:32am
A. Rickey (mail) (www):
More to the point, why is a practitioner not an intellectual? There's been a lot of character assassination from the anti-Miers camp (would anyone here really like to be judged on the quality of comments left on silly birthday cards?), but nothing that indicates Miers isn't an intellectual. She's merely not a judge, a law professor, or someone who's set the world of judges and law professors on fire.

As someone who would like to be a practitioner someone, I'd like to think that a lifetime of service in the trenches isn't going to mean that I can't be an "intellectual" or somehow engaged with constitutional thought.
10.18.2005 1:55am
Daniel Chapman (mail):
A. Ricky: It's true that no one's really provided evidence that she's NOT a soft-spoken intellectual, but our main complaint is that questions aimed at her qualifications have been diverted towards her likeable character and the glass ceilings she's broken.

If she's got the capacity to argue constitutional theory with Souter and Stevens, we'd like to see some evidence of it. If it's left up in the air, I've got to lean towards not confirming her. I suppose we could all wait for her to dazzle us at the hearings, but by then it's possibly too late. We need to have this discussion now.
10.18.2005 2:03am
A Guest Who Enjoys This Site:
It is the closing note of despair that indicates the damage done by Bush's choice. For nearly the last generation, conservatives have lived with the hope given to them by Ronald Reagan that the country could be returned to a culture more ensconsed in traditional values and a positive view of the future. They were then forced to watch the lassitude of Bush the Senior's lip service to 'Reaganism.' (Remember, Bush and Reagan were one-time competitors.) Meanwhile, the senior Bush went about his attempts to implement his views of a 'New World Order;' views that had little to do with Reagan's vision and actually ran closer to traditional, Democratic doctrine.

Then there were the Clinton years. Oh what a painful time. Conservatives managed to ignore Clinton's emphathy with 'your pain' and push through a guiding principle of their ethos - i.e., fiscal responsibility. The problem is, that for every gain in conservatism, the credit was lost to a President who either claimed credit or distracted the public's view through scandal. Aided by a media determined to blatantly steal Reagan's legacy (an obvious example of which is their attempted transposition of Reagan's nickname of 'the Great Communicator' into the Clinton iconography), conservative gains were either overshadowed by liberal hypocrisy or outright stolen as liberal achievements.

Enter GW Bush. Conservatives were once again forced to sublimate their wishes to the pragmatic reality that they did not, could not, see Al Gore or John Kerry with the reins of presidential power. But, the very fact that Bush's 'moderate' position allowed him to win, has been the very factor which has led to his rejection of conservative agenda.

In a sense, Bush has now stepped in and taken the bullet intended for liberals. By not allowing conservatives to confront liberals on the issue of using the judiciary to circumvent legislative powers through an obviously conservative nominee, he has caused the conservative community to redirect its energies against him. Even if Miers is confirmed, there will be a price Bush may not be willing to pay.

We already see it starting with a new 'awareness' regarding illegal immigration among Republicans on the Hill; i.e., a 'pet' issue with Bush and critical in his relationship with Fox. We see it in the conservative backlash regarding fiscal responsibility related to the monies Bush has 'promised' Katrina/Rita damaged areas. We see it in Republicans now beginning to appear on the news programs with an 'ultimatum' of sorts as regards elections in Iraq; i.e., the beginnings of a 'timeline' instead of Bush's 'stay the course' rhetoric. And, we see it in how conservatives are beginning to speak of the "Bush Legacy."

As I've said before, this does not bode well for the next three years. It also does not bode well for the '06 and '08 elections in that the electorate dislikes obstructionism. If Bush and Republicans are fighting with each other, they run the very real risk of one or the other actually siding with Democrats; either through the veto or by a supermajority. And, if Republicans and/or conservatives are siding with Democrats, what are the choices left to the electorate?

Instead of Reagan's 'morning in America,' conservatives were forced to endure the siesta of Bush the Senior's tepid afternoon; Clinton's hedonistic, evening repast; and, now, they see that rather than being close to the dawn, conservatives are beginning to feel as though GW Bush has been the midnight and is experiencing the disreality felt before 'closing time.' In short, we seem farther from the promise held in the energies of 'morning' and closer to the angst associated with a sleepless night.

The shame of it is that GW Bush had the chance to make the morning coffee. All he had to do was plug in the maker, conservatives would have done the rest.
10.18.2005 2:37am
A. Rickey (mail) (www):
Mr. Chapman:

First of all, in what sense are the hearings "too late?" Are we saying that the hearings are a formality in which no one will ever be taken from consideration? How does one then explain Bork?

On the other hand, such a statement is typical of the histrionics that have accompanied the anti-Miers protest. Slurs about birthday cards and hyperventilating accounts that someone, somewhere might have had the unmitigated gall to say something less than admiring of the Federalist Society have been the order of the day. Miers supporters, such as Beldar, have trawled through Westlaw, looked up articles, discussed personal experiences, and done real heavy-lifting and research. The anti-Miers posse seems willing to state that if they don't already know her reputation, she's not good enough.

This is preposterous, and more than a little elitist. Such qualifications mean that someone who isn't a judge or a law professor will have a very difficult time making it onto the Court. After all, judges and law professors leave paper trails to be observed because they are life-tenured (or at least tenured) and specifically protected from much of the harm that can come from trumpeting their views to all and sundry at any given occasion. A practitioner or a person more interested in how law interacts with politics, someone whose knowledge is from the trenches or administrative work, does not benefit from those protections. Practitioners--particularly those who will have practical political experience--tend to have greater requirements of circumspection.

But of course, we can't wait for the hearings: we must cast judgment now. We can't gather more information, or consider such things as: if we were to appoint a practitioner, what would we like to see? (Note: very few of the alternate candidates listed at places like Volokh are practitioners. Is this because they're all too intellectually inferior, or because the things that some look for as indicia of excellence aren't set to pick up the work of fieldworkers?) And if we wait for the hearings... oh heavens no, we can't wait for the hearings because then--when we might have more information, or at least be certain more isn't forthcoming--it will be TOO LATE.

Forgive me if I can't jump on this particular bandwagon. I feel I have nothing to lose by patience, except perhaps the "pleasure" of learning that I rushed to judgment about someone I didn't know, and later turned out to be wrong.
10.18.2005 2:58am
Daniel Chapman (mail):
I think from now on, if you want to have a serious conversation about Miers, don't use the words "elitist" or "sexist." They're almost debate-stoppers at this point.

I say the confirmation hearings are "possibly" too late (please drop the theatrics... I said possibly) because this nomination poses the unusual situation of being opposed by the same party that made the nomination. If we don't express doubts early (completely different than "casting judgment" mind you), there is a very real chance she will be confirmed by default. The republicans won't have a reason to oppose their own nominee, and the democrats could follow Harry Reid's example of taking her because she's the best they're likely to get. (She probably is)

Notice, this is a HYPOTHETICAL that supports the position of remaining SKEPTICAL until at least some plausible argument is made that she isn't a crony appointment. I havn't seen any evidence that she'd be better than countless other smart lawyers if she wasn't good friends with the President.

The post lays down the gauntlet nicely. We want a nominee who can write an argument that will still be convincing 50 years from now. Not even President Bush has claimed Miers is the one who can do this best. Do you have evidence that she is? Until I see it, I remain vocally skeptical, and I hope my senators are listening.
10.18.2005 3:20am
Terry Jay (mail):
As the debate over intellectual qualifications continues, where is the observation that if you continue asking for the same qualifications, you will continue getting the same results?

Is there room on the Court for someone who sees the phrase "Congress shall make no law..." and regards it as unambiguous? Plain words have meaning, and consequences. But, if you write for the law review sit on the Court or have a really wierd client, you get to argue "novel" theories about what the meaning of 'is' is. Or where 'penumbras and emmanations' emmanate from

The abundance of hyper-qualified law school graduates with appelate court experience have goten us where we are. What is the logic of demanding more of it? Is it time to demand a plumber or electrician?

I care not about Meirs, but the pontificating is wearing thin.

Commercial law is crucial to the economy, but is being sacrificed on the alter of abortion. Anyone want to estimate the economic impacts?

There may be reasons to support or oppose, but the 'qualifications' argument is pathetic.
10.18.2005 3:49am
Bezuhov (mail):
"We want a nominee who can write an argument that will still be convincing 50 years from now."

Then you'd do better to get to work making sure those who will need convincing 50 years from now are at least aware of, if not controlled by, conservative criteria than trying to "legislate from the bench" today while liberals continue to dominate the institutions forming the minds of those who will matter most in 50 years...
10.18.2005 4:19am
Daniel Chapman (mail):
We keep demanding the same qualifications, but we keep getting disappointed!

To your question about a non-hyper lawyer on the court... I can live with that. Any evidence she'd be better than Scalia because of her "non-hyper qualified law school graduate" status though? Lincoln wasn't formally educated, but that guy could sure make an enduring argument. Is Harriet Miers really the best we could do? Could you show me why?

All I'm asking for is a little evidence that she is worthy of the position aside from Bush's personal relationship with her. I don't think that's "pontificating," I think we deserve that much. All I've heard so far is that she'll either vote in lock step with Scalia/Thomas or worse yet that she'll vote reliably in some laundry list of issues that conservatives are fired up about. Neither of these arguments warrant the nomination... in fact, they are a disservice to the conservative legal movement.
10.18.2005 4:21am
People keep suggesting this argument that a lack of experience in Con Law (as a professor, judge, or even practitioner) is more likely to make you a plain textualist or originalist, or otherwise a contrarian with respect to the Court's constitutional doctrine. I just don't see the foundation for this argument. Empirically, it doesn't seem right: you have the likes of Scalia on one side, and the likes of Powell on the other, and that comparison hardly supports the thesis.

Even theoretically, it doesn't make much sense. Sure, people without experience in Con Law tend to think being a plain textualist or originalist must be pretty easy. But what they lack is precisely any familiarity with all the problems and arguments that have led the Court's doctrine away from plain textualism and originalism over time. Once they are exposed to those problems and arguments, what guarantee do you have that they too won't move away from plain textualism or originalism?

Again, the history of the Court is littered with Justices who have come to the Court without much experience in Con Law and who have subsequently been persuaded to accept many of the Court's evolving constitutional doctrines. This fact should indicate that without prior experience articulating, applying, and defending a contrary view of the Constitution, your views are more likely, not less likely, to converge on the Court's existing doctrine over time.

Personally, I don't really mind this effect, so I am fine with a few practitioners like Powell getting on the Court (I'd also demand they be one of the top practitioners in the country, and no one has seriously claimed that about Miers, which is an independent and sufficient reason to oppose her confirmation). But I am baffled by those who support Miers on the ground that practitioners like her will be more likely to have strong contrarian views with respect to the Court's existing constitutional doctrine.
10.18.2005 5:59am
Steve Harrington (mail):
One point I don't get in this discussion is this part of the original text: "The Court will resume its leftward march, occasionally staggering back to the right. Conservatives slowed, but did not reverse, this trend." Can some one decode what this this directional analogy means in rule of law or constutional law choice points? Is there one fork in the road here -say abortion, or a whole interchange of constutional choice points, a demand to validate conservative heros to a pecular hall of fame, a strategy of certitute based on textual epistomology, a return from some 1937 new deal policy desert, a post Regan end of times eschatology? What really is the left/right point here? All of the above? A colapse of conservative view into victimhood? From my point of view, resort to coded statements doesn't cut rational mustard.
10.18.2005 8:29am
dk35 (mail):
The problem of the commentary Randy posts here, in my opinion, is found in the phrase "reason is the bedrock of the rule of law."

Maybe it is, maybe it isn't....however, reason has nothing to do with the fundamentalist Christian conservative movement that has propelled Bush to the White House. By definition, religion is not based upon reason. It is based upon "faith," which is the opposite of reason.

One of the problems with this debate is the confusion of religious fundamentalism and libertarianism. The reason for this confusion in this blog is largely the continued persistence of the libertarians running to blog to adhere to the naive hope that they will find success for their own results by clinging to the modern day Republican party. Some may be doing so because they are in fact fundamentalist judeo/christians in libertarian clothing, but not all.

My suggestion to the true libertarians would be to open your minds a bit and embrace other points of view. In the end, Breyer/Stevens might not be so bad after all, and in the end have more in common with you than you are willing to admit.
10.18.2005 10:21am
Jeremy Pierce (mail) (www):
As I read Coyle, he betrays a fundamental misunderstanding of what the elitism charge is actually saying. It's not claiming that intellectualism is bad. It's not claiming that intellectual standards should be thrown out. It's not claiming that we should abandon principles for practicality. It's not claiming that intellectualism is responsible for liberalism. What it's claiming is that the intellectual standards we need should be much broader than the elite ConLaw specialists think they should be. The work of the Supreme Court involves ConLaw, and it involves difficult and crucial questions about ConLaw. Someone appointed to the SCOTUS ought to be competent in such matters. There's no evidence that Miers isn't, however, and all claims to the contrary are impatient and premature. There's a process for figuring that out. If she is incompetent about ConLaw, that will come out at the hearings. It will be obvious. We may not be able to tell where she stands within the realm of competency, but that's fine. If she's competent, she can do the job. That's all senators are supposed to be deciding anyway, according to the usual conservative view.

The main point of the elitism charge is that ConLaw specialists are arbitrarily selecting ConLaw as the only important part of what SCOTUS does and expecting any nominee to be a cream of the crop expert on that one area. She should have intellectual excellence, but it doesn't need to be top expertise in that one area of law. She clearly has expertise in law in general. There's no question about that. She clearly has top intellectual ability. All the information we have suggests that she could easily have gotten into an Ivy League school and chose to remain in Dallas for family reasons, choosing the best law school there. All the information we have suggests that she's mastered the kinds of law she has handled almost all her adult life. What's elitist about the opposition to her is that it assumes ConLaw is the most important, and really the only, kind of law to evaluate her by. She ought to be competent in it, but it really is elitist to expect that she's going to be as good as any of the current specialists in ConLaw who make up the current SCOTUS. Somehow we've gotten away from wanting people expert in the law in general on SCOTUS, and we've moved to a point where we expect just this one small but important subfield of law is the only important consideration for SCOTUS nominations.

That is indeed elitism, and making that claim does not amount to anti-intellectualism. I write this as a Ivy League graduate who very much enjoyed and appreciated my time at an Ivy institution. I write this as a Ph.D. student in philosophy, arguably the most intellectualized of all disciplines.
10.18.2005 10:57am
eddie (mail):
This discussion reeks of bad faith; the intellectual/qualifications critique is merely a respectable front for what is bothering most conservatives: We want a sure thing. Despite all the talk about pure orginalist judicial philosphy and not legislating from the bench, the bottom line is that there is a very well articulated agenda of results that are wanted from the "new" court. "We've been waiting for 'our' moment." So let's be honest about what's going on. This is not about the constitution, not about the court not about the law. This is pure power politics: President Bush owes us "our" man and he has given us a cipher. We've been training zealots for years and he did not have the decency to suggest any one of a score from this select bull pen.

Ironically, the nomination of Roberts should have tipped off true believers that another blank slate would be nominated. So he get's a free pass (in fact there was consternation at anyone questioning his lack of answering) because of his pedigree, but Ms. Miers doesn't. Please spare me the professorial indignation at a lack of reason.

Who is he to snub the providers of his political capital?

Funny how these tactics are only criticized by those who feel the brunt of the "attack".
10.18.2005 2:52pm