Bench Memos

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Of Precedents and Presumptions


Over at RealClearPolitics, Ronald A. Cass of the Committee for Justice (but not claiming to speak “for anyone other than [him]self”) has a defense of Harriet Miers’s nomination that is more than halfhearted but not that enthusiastic–call it three-quarters-hearted. Cass summarizes what he sees as the “two legs” of conservative opposition to the nomination, the first of which “is based on a singular a-historic vision of Supreme Court appointments” as requiring either prior judicial experience or evidence of scholarship engaging the issues of constitutional law. Case notes that Louis Brandeis, Robert Jackson, Earl Warren, Byron White, William Rehnquist, and Lewis Powell didn’t come to the Court with these credentials. This is true, but I haven’t heard conservatives argue that only prior judicial experience or scholarly activity will do. A history of responsible public officeholding or political engagement can also equip someone for the job in interesting ways. Almost everyone on Cass’s list exceeds Miers in having devoted himself to public service in ways that permitted others–aside from the appointing president–to see his merits for a Court appointment. The exceptions, interestingly, are White and Rehnquist, who both had relatively brief stints below Cabinet level at the Justice Department before going to the Court, but whose prior careers would not have brought them much notice. For those two examples, maybe we can give this argument to Cass.

Then the question would become, have circumstances changed since the White and Rehnquist appointments, such that those nominations would look risky today? Maybe they have. Maybe if a a White or a Rehnquist were nominated today, we could reasonably demand more information about their views on the law than seemed necessary in 1962 or 1971. Perhaps we would even insist on quizzing a Lewis Powell in a more serious way.

This is where Cass’s account of the ant-Miers case’s second leg comes in. He says the “other major line of attack on Miers” comes from those who want evidence that she “shares their beliefs.” Here’s the trouble with that, says Cass:

But conservatives repeatedly have asserted that judges shouldn’t make commitments in advance to particular positions. We can ask that they commit to a vision of judging, a way of interpreting the law, an understanding of constitutional interpretation. We shouldn’t ask their positions on particular matters that are likely to come before the Court. That was our answer to liberals like Chuck Schumer who want judicial confirmation hearings to focus on ideology. It should be our answer to ourselves.
I am probably in a minority here (though I know Gerry Bradley and Ramesh Ponnuru are with me), but this has not been my view all along. I want the hearings to consist of more than the usual blandishments about (in Cass’s words) Harriet Miers’s “approach to interpreting the Constitution, her understanding of the broad contours of the law, her view of the judge’s role.” I want “the focus on ideology” that Cass rejects, in order to rid the Court of any kind of ideological judging, of left or right.

One last thing. Cass describes the hearings as having “a limited role–to serve as a check against the appointment of unqualified individuals nominated out of personal attachment or political pressure.” Translation: presidents deserve deference to their nominations, with the presumption in their favor as the Senate takes up its function of advice and consent. But whatever might have been the deferential posture of past Senates to past presidents, there is simply no persuasive ground for such a practice in a plain interpretation of the Constitution. What has been done before–think of the “Ginsburg precedent”–should not be considered binding.

Cass says Harriet Miers could lose his support depending on her performance in the hearings. She could gain mine, for whatever that is worth. But I see no presumption working in her favor at this point, and I see no compelling reason why her hearings should be conducted with the kid gloves on.


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