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Randy Barnett,"Cronyism," Wall Street Journal, 4 October. In re: Harriet Miers, Barnett asks:"What would Alexander Hamilton do?" The contrast of her legal experience with that of John Roberts is dramatic. In 20 years of private and public legal practice, he argued 39 cases before the Supreme Court. At Is ThatLegal?, Eric Muller reports that, in 30 years of private and public legal practice, Miers was the attorney of record in 0 cases before the Supreme Court. She was the attorney of record in 3 cases in the Fifth Circuit Court of Appeals; all 3 cases were lost. She was the attorney of record in 4 cases in Texas state courts; 3 of 4 cases were won. So, her paper trail may be thin, but Richard Jensen at Conservativenet points out that, as president of her Dallas law firm in 2000, Miers paid out $22 million to settle claims that the firm had helped a client defraud investors in a Ponzi scheme. Here's the documentation on that (scroll down to LOCKE LIDDELL).
Seems to me there are two factors involved -- how much merit a person has, and how sure one is that one's perception of the merit is correct.
When I practiced law I was involved for many years in hiring. My hiring decisions were based on merit and the firm's needs. But I never was "sure" about any candidate. On the other hand after I had worked with the new hires for a couple of years I had a pretty good idea of how good they really were.
Had I been required to recommend to you a young lawyer for something very important, I probably would have chosen one of the associates, even if I thought we had just made a great hire. I knew how good the associate would be, whereas I only thought that a new hire would be exceptional.
Maybe "comfort zone" is your way of saying that?
John H. Lederer -
10/5/2005
Other than indicating that other lawyers were willing to put their trust in him, no, I did not consider it a significant factor. I just do not consider appearing before the Supreme Court a significant qualification.
To a small degree, I would regard it as a disadvantage, because it creates a clubbiness that is to be avoided, and a lack of appreciation for practicality.
But I don't think the question is merely one of an isolated "how will this justice do as a justice".
My two favorite Justices are John Harlan Marshall II and Hugo Black. Two more disparate justices would be hard to find. Marshall was a patrician of impeccable credentials. He brought to the court an intellectual integrity of reason in his own opinions and in his dissents that raised the standards of the court. If a justice reasoned sloppily, Marshall, politely, courteously, but with precise logic would call him on it.
Black came from a sordid background, his only real basis for being on the court was his solid support of Roosevelt. But Black had one big simple minded idea -- the constitution meant what it said. In pursuing that idea he showed that textualism could not only be a shield for conservatives, but could be a strong sword for personal liberty and civil equality. His one simple idea was never accepted by his brethren, but they had to confront it and in doing so their views chnaged. Black's simple "But it says.." made the court better.
The point is that there is a reason that the court has nine members, and the court as a whole can benefit from members that we might not want to make a court of one.
If I look at the present court one of its great failings is that its members are too committed to ideologies and theories and in the process of battling they are cheating. A court has real litigants before it, and, above all it should be deciding their cases on the merits. What is happening is that the justices in their ideological clash are sweeping under the rug inconvenient facts in the record, or pretending that factual findings are there that are not. This is very corrosive to justice.
One of the plusses to Miers, from what I have read of her, is that she is a detail person who tries to get a very firm grasp of the facts before opining. This court could really benefit from someone at the conference who would say "But look at paragraph 117 of the district court's findings of facts..." or would put in red ink on another justice's draft opinion "Controverted by testimony of police officer at p. 456 of the record...."
That may not be the mark of a great justice, but it is, in my opinion, something the court needs now to be a great court.
There is a second weakness in this court also related to its ideological clashes. Most lawyers don't litgate. Most clients of lawyers are not involved in court cases. By a ratio of thousands if not hundresd of thousands to one, disputes are settled because the lawyers and the parties can, with a reasonable degree of certainty, predict the outcome. Practising attorneys value clarity of law and decision a great deal. So ought society.
One of the jobs of the Supreme Court is to provide certainty. This court isn't doing that. Because the ideological clash of a pretty evenly divided court often results in compromised, circumscribed, and fogged decisions in order to attract a majority, uncertainty reigns.
But people have to put real effort, real money, and real time into building things that require certainty that isn't there. Doubt me? Ask your university counsel if your university's admissions program corresponds with the constitutional requirements of the two Bollinger cases. Then ask the counsel if he is sure.
There is a reason for "bright lines" in the law. Balancing tests, the appellate court's legal equivalent of a punt, cost society. They are the antithesis of law. When asked for a decision the court decided to wash the windows. We have heard a lot about balancing for the past two decades.
Apellate lawyers, and I was one, tend to be a little too removed from practicality. So do appellate judges. The distance serves some purposes, but it hurts others and it needs to be leavened with practical people. Practical people value clarity.
I would hope that Miers might put a greater value on certainty than the present justices do. . There is little in most of the justices background that would drive home the necessity of it as opposed to academic debate.
Am I saying that Miers would not be, or would be, a great justice? No I am not. I truly don't know. I am going to be very interested in watching the hearings.
Of course I suspect that my end conclusion after the hearing will be the same as it was going in .."Darned if I know" That is also my conclusion about Roberts. Told you I was once an appellate lawyer.
Ralph E. Luker -
10/5/2005
Except, of course, for the fact that John Roberts had argued 39 cases before the Court in 20 years was considered, I dare say, even by you, a significant factor weighing in his favor.
John H. Lederer -
10/5/2005
I did not mean to suggest that argument before the Supreme Court was your only criterion, only that it was a bad one.
Jonathan Dresner -
10/5/2005
and anyone who is hasn't been paying attention. This president, for better or worse, has a really narrow circle of trust and rarely ventures outside of his comfort zone without extreme pressures. The Roberts nomination was more surprising, in this regard, but the idea that he'd make two appointments solely on merit, or even on political concerns like base support, was implausible on the face of it.
Ralph E. Luker -
10/5/2005
Had you bothered to read my post, you'd have noted that it wasn't limited to a point about numbers of cases argued before the United States Supreme Court. It makes a larger point that, in addition to having no judicial experience, for someone who has practiced law for 30 years Miers has very limited experience in litigation. If you look at her career, in fact, she's experienced as a staff manager, really -- experience that would qualify her in the executive branch, perhaps, but not for the bench. If your trial by ordeal criteria prevailed, I suppose that Bork and Thomas would be the best justices of the 20th century. I don't recall any of its truly noteworthy justices having faced such an ordeal.
John H. Lederer -
10/4/2005
Number of cases argued before the U.S. Supreme Court simply is not a good criterion for whether someone is qualified to be a Supreme Court judge.
Very few lawyers have argued U.S. Supreme Court cases -- there are not many cases, and there is an unfortunate modern tendency to hire one of the few private practitioners from a big Washington law firm that specialize in this.
I clerked for a widely admired trial court judge -- Walter E, Hoffman of Norfolk (not the Hoffman of Chicago fame!)-- most known for his statement when dealing with inflammatory integration cases in Norfolk "I will do my duty if it cost me my last friend on earth". Hoffman did and it did -- memorably when he and his wife entered his country club for dinner at the height of feelings all the other diners got up and left. They ate alone.
Hoffman insisted that the experience that best prepared him to be a judge was having refereed college football. Making your best call as a judge, he claimed, was always simpler than making it as a referee.
I suspect that only a small minority of supreme court justices ever made an argument to the court. It would be foolish to make it a criterion.
But like Hoffman, I think that character matters a great deal. The character needed is not that displayed in great black and white issues. neither is it the flash of a brilliant scholar.
It is that which carefully nurtures an honest attempt to determine the truth, in fact and in logic, uninfluenced by one's own desires and
the gentle insistence of family, friend, colleague, and press that one ought think this way or that.
Does Miers have that character? I don't know. I look forward to the hearings in the hope that they might reveal that. There is something to be said for being under stress in front of a bunch of egotistical horses asses for days as a means of revealing character. It might though, more simply and cheaply be done with the rack or ravenous fire ants.
