Miers Supreme Court Nomination

George W. Bush’s most recent nominee for the Supreme Court, Harriet Miers, is getting criticized from numerous quarters, including his own conservative constituency. Mostly because no one knows much about her. Also perhaps because she doesn’t have the gold plated, East coast law school background that many today expect from a Supreme Court justice.

Joe Knippenberg at No Left Turns has some useful information on her religious background. Some have suggested that Bush is “rewarding” his Evangelical constituency with a nominee from that background. Knippenberg has some comments on how her background might inform her judicial decisions here and here. The Washington Post provides more background.

Republican Senator John Cornyn adds a different dimension to the debate in today’s WSJ. He observes that Miers possesses something that really none of the members of the Supreme Court possess: actual experience at representing people in court. Even Roberts only represented people at the appeals level:

Harriet Miers’s background as a legal practitioner is an asset, not a detriment. She has spent her career representing real people in courtrooms across America. This is precisely the type of experience that the Supreme Court needs. The court is full of justices who served as academics and court of appeals judges before they were nominated to the bench. What the court is missing is someone who understands the consequences of its decisions on the American people.

Cornyn’s point is a good one, and it isn’t simply populist pandering. The Supreme Court in the past 50 years has lost contact with the way the law affects people in their daily lives, and this is a big problem.

Stuart Taylor in a recent Atlantic documents the ways the Supreme Court has lost touch with those down below in the legal system. Lacking such knowledge, its decisions necessarily become more abstract and divorced from the regime in which it operates. Here are some snippets from Taylor’s article:

Over time the justices have failed ever more conspicuously to understand what messes their decisions might make. In 1997, while forcing Bill Clinton to give a sworn deposition in the Paula Jones sexual-harassment lawsuit, the Court stunned litigators and trial judges by predicting that this was “highly unlikely to occupy any substantial amount of [President Clinton's] time.” Only Justice Stephen Breyer seemed to appreciate that the realities of modern discovery practice “could pose a significant threat to the President’s official functions.” Sure enough, the district court ordered Clinton to answer detailed, tangential questions about his relations with various women. The rest is history.

In a string of decisions since 2000 the Court has thrown the criminal-justice system into utter confusion by repeatedly changing the rules on the roles of judges and juries in sentencing, while providing minimal guidance on how the new rules should be implemented. In response to the rulings, thousands of current inmates have requested re-sentencing, to the consternation of federal trial and appellate judges, who are all over the lot on how to handle these requests. (The judges also have major differences of opinion on how much weight they should now give sentencing guidelines in new cases.) We’ll be hearing more about this confusionâ€???it’s a clear recipe for an onslaught of additional appeals down the road, which will further tax our already overburdened criminal-justice system.

Then there’s the Court’s recent Janus-faced pair of rulings on governmental displays of the Ten Commandments. The gist: recently installed, framed copies must be stripped from courthouse walls; forty-year-old, six-foot-high monuments can stay on the grounds outside. The logic: well, for that you’ll have to read ten separate opinions totaling 140 pages. In announcing part of this mess, Chief Justice William Rehnquist said, “I didn’t know we had that many people on our Court.” Chief Justice John Marshall once observed (in Marbury v. Madison) that “it is the province and duty of the Judicial Department to say what the law is.” Government officials and lower-court judges often find the law difficult to ascertain today. But at least they do knowâ€???in minute detailâ€???what each justice thinks it ought to be.

As our Supreme Court justices have become remote from the real world, they’ve also become more reluctant to do real workâ€???especially the sort of quotidian chores done by prior justices to ensure the smooth functioning of the judicial system. The Court’s overall productivityâ€???as measured by the number of full, signed decisionsâ€???has fallen by almost half since 1985. Clerks draft almost all the opinions and perform almost all the screening that leads to the dismissal without comment of 99 percent of all petitions for review. Many of the cases dismissed are the sort that could be used to wring clear perversities and inefficiencies out of our litigation systemâ€???especially out of commercial and personal-injury litigation.

Traditionally the Court decided major questions of federal commercial law, adapting to the changing nature of business and the increasing complexity of litigation. Yet according to Michael Greve, the head of the American Enterprise Institute’s Federalism Project, this Court has “resolutely refused to tackle the inconsistencies and absurdities that, after decades of neglect, afflict nearly every area of commercial litigation.” One reason, Greve argues, is that with the exception of Justice Breyer, “the Court has absolutely no idea what business litigation in America now looks like.”

If Miers is so “connected”with the legal profession, the ABA, and the ways the legal system actually operates in its day-to-day operations, then that expertise is the strongest case for her nomination. Unfortunately, George Will, who’s usually solid, misses this completely when he attacks her for her lack of expertise. He overlooks just what kind of expertise one needs on the Supreme Court, and the possibility that the Court needs different kinds of expertise found in different personalities and backgrounds.

Nothing I’ve read so far suggests she is a bad choice. But we’ll only know with more certainty when the nomination hearings begin.

UPDATE: The New York Times reports on Miers’s religious conversion. Ken Masugi comments over at Claremont.