If I were a Senator, I would, based on what I know now and am likely to find out, vote to confirm Harriet Miers as a Supreme Court Justice. She’s no John Roberts, but, in terms of ability to perform the duties of the office, she’s more than a Sandra Day O’Connor and towers above Ruth Bader Ginsburg. (Why couldn’t Bill Clinton have picked Mr. Ginsburg, one of the great tax lawyers of our era, for the Court instead?) Having satisfied the criterion of competence, a President’s choice shouldn’t be subject to a great deal of second guessing by the Senate. Turning every Court nomination into an all-out battle won’t lead to a higher quality of Justice, just to a more thoroughly politicized appointment process.
Not being a Senator, however, I am allowed to second guess, and I have to agree with those who are “underwhelmed”. Miss Miers, after graduating from a good but not outstanding law school, compiled a solid record as a lawyer, but there’s nothing in it to distinguish her from hundreds of her peers. She isn’t among the first rank of advocates – on the level of Robert Bork or Ted Olson or Miguel Estrada or, on the other side, Robert Bennett – whom litigants seek out for earth-shaking cases. (Eugene Volokh has suggested that her background fits the mold of Justices White and Powell. I’m not sure about Byron White, but her stature falls well short of Lewis Powell’s before his appointment to the Court.) Her publication record is effectively a blank. (All that I can find in the Lexis database is a single, very short, non-technical article in Arizona Attorney. Dave Kopel has found another, more substantive though likewise non-technical, in Texas Lawyer.) Since 2001, she has held White House positions, in which she has reportedly been effective. She is also known to work grueling hours, have an excellent ability to comprehend detail and get along well with colleagues – qualities that a Supreme Court Justice can use. One of the less widely noted aspirations of the new Chief Justice is to get the Court to work harder at reaching agreement in more cases. He will doubtless find Justice Miers helpful in that regard.
That’s about the most that I can find to praise: hard-working, intelligent, clubbable – fine qualities all, but distinctly uninspiring. My lack of enthusiasm does not, let me asseverate, spring from worry about whether the prospective Justice will be a reliable conservative. Although I would like to be confident that she will vote the right way on politically charged issues, those are only a secondary part of the Court’s docket. As both Left and Right tend to forget, the Court is not a Council of Mullahs charged with conforming American law to ideological principles. It is our highest court of appeal, and its most important role lies in interpreting statutes. If it does that in a slipshod manner, law and the economy, which depends crucially on sound interpretation of the law, will fall into disrepair. It won’t then matter whether the Justices overturn Roe v. Wade.
From my perspective as a specialist in a narrow field of law (pensions and employee benefits), the Court has a less than stellar record. Its members, with the notable exception of Justice Thomas, seem to have made little effort to understand the statutes that they are called on to construe, often substituting ill-informed notions of “fairness” instead. If other areas are equally ill-served, the Court stands in need of an infusion of truly top-notch lawyers in the John Roberts mold. Harriet Miers is doubtless above the mean for the American legal profession; that is not, I fear, good enough.
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