Strengthening Constitutional Self-Government

No Left Turns

More Miers

I have been trying to keep an open mind on Harriet Miers, in large part because I fear that a confirmation failure will make it much harder for the President to put forward a distinguished nominee in its aftermath. But the signs out there are not good. As I noted earlier, evangelicals are not exactly rallying behind her, rightly preferring to see her show her stuff. It’s also quite clear that Republican Senators and their staffers are not exactly solidly in her corner. The two Judiciary Committee Senators most closely identified with social conservatives, Tom Coburn and Sam Brownback, are, according to the NYT, among the most skeptical. If they live up to their advance billing in the press (not a totally reliable source, I’ll concede), the hearings could well be a bloodbath, with Miers essentially facing difficult and/or hostile questioning without much assistance from anyone on the other side of the table. I hope Mier has the resources to take it or the realism to recognize that she can’t.

And the sherpa Dan Coats--who is supposed to be helpful--has resorted to the Roman Hruska defense:

"If great intellectual powerhouse is a qualification to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole," Coats said.

Leaving aside the fact that representation is supposed to provide for leaders who deserve it by being in some respects more able than their constituents, Coats misunderstands the Court’s principal constituency, which is not the people simply, but the "constitutional people," whose wishes are embodied in the document. If the Court is supposed to be a representative body in the sense that Coats suggests, then we might as well just abandon the Constitution altogether and let the elected representatives duke it out.

Discussions - 6 Comments

First of all, I agree completely that the role of the judge is not the representation of the "people." The fidelity of the judge is not to the popular will but to the regime and its spirit, which I assume is what you mean by the "constitutional people." But do I detect some recognition here that the judge cannot simply be a positivist or textualist, whole normative legal vision is completely bounded by the written text of the constitution?

Secondly, and I suppose this is a statement against class interest coming from someone like myself who is an "intellectual" teaching in one of America’s leading, "elite" law schools, to be a great lawyer or a great judge does not necessarily demand the bent of an "intellectual." There have been many wonderful lawyers and judges in American history who were streetwise people, "country lawyers" with modest origins and very basic booklearning. I would not be doing what I am doing for a living if I didn’t believe that liberal education in the law could not contribute to the making of better lawyers and judges. But to be honest, one has to admit that there are other routes to excellence, and it is better not worse in an egalitarian polity that they remain available. Miers is far from a political hack who has never made her mark in the law--running a major law firm and leading the state bar association are surely signs of achievement and respect in the profession that even us "elite" academics ought to recognize.

This is getting really embarrassing. Bush should pull the nomination NOW!!! He damn well better apologize for the ridiculous "sexism" and "elitism" attacks too. I sure as hell didn’t vote for this guy so that he could appoint his friend and then knee-cap anyone who had a problem with it.

The Coats-Hruska view that we need a Court that looks like America--especially intellectually--is silly. Nonetheless, we would actually be more faithful to the Constitution if our courts did (a lot) less and our elected representatives duked it out a lot more.
The key FEDERALIST papers--10 and 51-- show how the Constitution protects us effectively from majority faction, demagogic ambition, and all that with no contribution at all from judicial review. Unfortunately, I think that Miers is finally an establishment type who wouldn’t work (with Scalia etc.) to keep the Court from meddling in what are fundamentally controversial policy questions. If she were some very smart "outsider" country lawyer, I’d probably be for her.

I often agree with Peter, and this case is no exception, at least with respect to the respective roles of the "political" branches and the judiciary. My doubts about Miers have grown with each Administration attempt to defend her and/or justify her nomination. She has a genuinely impressive resume and is by no means a "mediocrity," but at some point she has to demonstrate that she is "up to speed" on matters constitutional and judicial in ways that inspire confidence in her and do not rely on confidence in the President. A stellar performance--against all odds--in the hearings will silence all the critics, at least those ordinarily in the Bush camp. (By the by, I wonder whether the usual suspects on the other side of the aisle are being as zealous in their research, or are relying on conservatives to do all the damage for them.)

Yes, of course, she should not be named to the Court if her answers at the hearings suggest lack of competence or familiarity with constiutional law. This is a good reason for hearings. I am sufficiently un-cynical to believe that the interest in making sure that someone incompetent in the law (including especially constitutional law) not be appointed to the court is a genuine, bipartisan one. I also would find it surprising that Miers, given her professional background, would get into this if she felt there was a real risk of embarassing herself by lack of knowledge or jurisprudential nimbleness in responding to questions at the hearings. I ask myself: what if my own name were being considered? I definitely wouldn’t accept that the nomination be put forward because I know that I don’t have the required mastery of US constitutional doctrine. I wouldn’t want the job, because there’s a side of it that is very important, nay crucial for the country, where I couldn’t really be sure that I could rise to the required standards. It is hard for me to believe that Miers would be so vain and foolhardy to think differently. Anyhow, if it is the case, she will have her comeuppance soon.

I agree with Dan Coats. What we really need on the court are less qualified people. In fact, unlike Miers, I have never even been head of a bar association. Under Coats logic, doesn’t that mean I should have been picked before Miers?

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