Bench Memos

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Harriet Miers, Pragmatist?


Two think-pieces on the implications of Harriet Miers’s nomination were published in major Sunday newspapers. In the Washington Post, Lorraine Woellert of Business Week suggested that the business community is quietly welcoming the pending arrival of Miers on the Supreme Court, since she comes from a corporate-law background and because of her record of backing such causes as tort reform in Texas. Better still from the business standpoint, Miers may turn out to be “pragmatic.” Woellert writes: “Corporations worship pragmatism and don’t give a whit about judicial philosophy.”

If Woellert is right, then businessmen may not be as smart as they like to think. For “pragmatism,” often praised as a form of flexibility or realism about the practical consequences of judicial decisions, is really just another word for “willful unpredictability.” A prudent flexibility in the business world, an ability to change course just as quickly as market conditions dictate, is certainly a virtue. In the judiciary, it is more likely a vice, since it means essentially government by judiciary, without the guidance of principle. The praise of “business execs” for Justice O’Connor for her “practicality” and her ability to evince awareness of “real-world situations” is surely selective at best, for the hallmark of O’Connor’s jurisprudence was its emptiness of principle. If she was more often friendly to business than not, that pattern was altogether contingent–a matter of O’Connor’s preferences, not of any enduring principles that could be identified with the rule of law. (See her opinion in the Michigan affirmative action case, which business executives, bizarrely, appear to have liked, according to Woellert.)

In the long haul, that decision-making approach cannot be friendly to anyone’s economic interests. And if Miers is like O’Connor in these respects, as Woellert suggests (or rather speculates, since her evidence is thin), her nomination is not good news for conservatives, business leaders, or anyone else.

The other article is by Jeffrey Rosen in the New York Times Magazine, discussing the phenomenon of the apparent “Woman’s Seat” that the O’Connor vacancy turned out to be, thanks to President Bush. Along his way through an interesting piece, Rosen writes this:

If Miers is confirmed by the Senate, it remains to be seen if she will turn out to be a lawyerly pragmatist or an insecure, clerk-driven justice who has trouble seeing the forest for the trees.

Presumably he thinks the former represents virtue in a judge. For it’s striking that Rosen does not even consider a third possibility: that she will turn out to be a confident, principled constitutionalist who recognizes that “pragmatism” is the province of legislators and executives. Rosen wants to know if she will become another O’Connor (“pragmatist”) or another Blackmun or Whittaker (in over her head). But the difference between these two possibilities is one of degree, not of kind, more psychological than anything else. The neurotically insecure justice who was never ready for the Court’s responsibilities may become a “clerk-driven” ideologue seeking lionization from the legal elite, like Blackmun, or may simply implode, like Whittaker. But the “lawyerly pragmatist” is simply the same creature with an unearned confidence. Justice O’Connor, as far as the rule of law and principled jurisprudence are concerned, was in over her head too. The difference is that she has never known it.

So which is Harriet Miers? Another undeservedly confident O’Connor–a “pragmatist”? Or someone who is neither intellectually nor psychologically up to the job? Let us hope Rosen is wrong, and she is neither one. In her hearings, we should look for the third possibility–an able, sturdy reasoner about enduring legal principles.


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