The Harriet Miers Pick

I emerge from the weeds of a tough week practicing law to have some opinions about the nomination of  Harriet Miers to the Supreme Court.

The story since the nomination, of course, has been the fury on the Right over what many people see as a mediocre pick.   Opponents complain that Bush has chosen an undistinguished crony, from a second rate law school who has never written or said anything interesting about anything.   Miers supporters (what there are of them) hurl counter-charges of elitism, and say that Miers should be lauded for her career in the private sector.  Other conservatives hope that she "won't be that bad".  And the liberals get plenty of free targets and are sniping away.

My problem here isn't where Ms. Miers went to school, or the fact that she has spent her career in private practice.  My problem, like Peggy Noonan's, is that we really have no idea what she thinks about the important issues she is going to be deciding (or even if she has ever thought about them at all).  And we really don't know what she will be thinking about those issues ten years from today.

Because, you see, many (read most) judges appointed to the Court shift left over the years.  It happened to Kennedy, it happened to O'Connor, it happened to Blackmun and Souter and on and on.   It happens (or so I think) because the people paying attention to what the Supreme Court does on a day to day basis--the cheering section, as it is--is made up of lawyers, law professors and law students.  This bunch is far more liberal than the citizenry at large, and is far more likely to see the law as an instrument that can be used to "fix" society's many ills.  And the cheering section can be counted on to reliably yell "boo!" every time a conservative, right wing justice acts like, well, like we thought he was going to act when he was confirmed.  But every time that same conservative strays just a little bit from the fold, the cheering section goes "yea", he will be feted the next time he shows up at a law school to make a speech, and the NYT editorial page will laud him for "growing" on the bench. 

Justices are only human, after all, and just like the rest of us they would rather be cheered than vilified.  And a lot of them get worn down over the years by this sort of thing.  I mean who wants to be the Scrooge all the time?

The answer to this, of course, is to pick someone whose belief in his opinions has been tested.   The best picks are conservative law professors from elite (read leftist)  law schools, like Scalia.   You know that someone who can maintain his conservative principles in an environment like that isn't likely to change because the Harvard Civil Rights-Civil Liberties Law Review really hated his last opinion.  And the worse type of choice is a politician, like  Earl Warren, because politicians are used to serving the will of the public.   If the "public" all of a sudden becomes extremely liberal, well, there goes the neighborhood.

And what about Miers, an attorney in private practice?   Bush says he "knows her" and that we should "trust him".   I am sure that she has zealously fought for him and his interests over the years.  But this is what lawyers are supposed to do.   Over the years I have known ACLU liberal types fighting tooth and nail for police officers accused of beating homeless people.  And I have known zealous right wingers representing a guy on death row, who got there by torturing little girls to death.   Maybe this is one of the things that people hate about lawyers, but this isn't a flaw, we are supposed to be able to do that sort of thing (although I myself drew the line at the death row guy).

So, is Miers a true believer who came to represent George Bush because they are soul mates who share the same view of the cosmos?  Or is she just a very good lawyer who has tried to make every one of George's tiniest little whims a reality because it's what good lawyers do for their clients?  I guess we are all just going to have to wait and see.

Comments

[Beldar]

Bork was a conservative law professor turned circuit judge. Lifetime Supreme Court voting record: zero majority opinions, zero concurrences, zero dissents.

Some of the problem with the current Court is that it's full of prima donnas who won't just concur, but have to write their own opinions -- 10 from 9 Justices on one day to explain why the Ten Commandments are constitutional in Texas but not Kentucky. Liberal and conservative law professors have something in common -- they think they're God's gift to mankind and of unique and precious insight that must be shared on every case.

Nobody on this Court has met a payroll or run a business. Nobody on this Court has picked a jury. This is a Court that lives in Cloud Coo-Coo Land (except for when Scalia descends to go duck hunting with Cheney). This is a Court that can blithely overturn the entire sentencing schemes for all state and federal courts with a flick of the pen, and figure, "Well, we'll clear up any problems that causes next Term."

We need no more philosopher-kings on the Court. Bless his heart, I think John Roberts realizes how narrow his career has been -- he's been doing something functionally indistinguishable from moot court almost his entire career, hasn't he? (except during the Reagan Administration) -- and he's an improvement, but far from the cure.

O, ye of little faith. Take heart. Or at least don't pee on your friends' pants legs.

[Roscoe]

Hi Beldar, thanks for stopping by.

I don't disagree with hardly anything you said about the detached nature of the present court. I also don't think it would hurt to have someone up there with some "real world" legal experience (although last time I checked, there wasn't a jury box at the Supreme Court). But, as I hope I made clear in my post, I don't have any problems with Ms. Miers' resume. The problem I have, basically, is that I don't know if she is a conversative.
As for keeping faith, as the man said "there's the rub". After the drug bill and the highway bill and McCain Feingold and our current efforts to turn Iraq into a Jeffersonian Democracy, I am not sure how much faith I have left.

[sandy]

I'm not a lawyer or judge, but I thought the Supreme Court is there to uphold the Constitution and not legislate as they seem prone to do lately. Are they not suppose to interpret the law and not make law?