Bench Memos

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Disagreeing (for a change) with Randy Barnett


Randy Barnett is an intellectual hero of mine, so I’m reluctant to disagree with him. Still, I do not agree with some of what was in his recent WSJ editorial. He writes:

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered “judicial philosophy,” by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate.

Nothing in Harriet Miers’s professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people.

Now, I voted for Bush (largely) because of the Court, and I was rooting for Judges Alito, McConnell, and Luttig. Still, what Randy writes here seems wrong to me. The job of White House Counsel carries with it one of the most diverse and challenging portfolios in all of government. I would think that a stint as White House Counsel would be much more valuable — dramatically more valuable — than a few years on an appeals court, toiling away on Social Security appeals, appeals from suppression motions, and (until recently) Sentencing Guidelines appeals. Randy also writes:
It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.
Certainly, I agree with Randy here. And again, Justice Alito (or Barnett, or
Bradley?) has a wonderful ring to it. Still, unless I’m misinformed, the job of White House Counsel provides a wonderful opportunity for precisely this kind of “wrestl[ing].” Some might think that Ms. Miers got the White House Counsel job just because she is loyal to Bush, but there’s no avoiding the fact that she is White House Counsel, as in . . . the lawyer who has to investigate, understand, analyze, and present to the President every facet of pretty much every conceivable legal issue. That ain’t nothin’. Randy continues:
Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.
This — all due respect — is a cheap shot. I’m sure folks said it about
Rehnquist. And besides, where is the evidence that, in fact, the Court is the
“big league”? (I wish it were! But for every Rehnquist, there’s a Blackmun).
It has, for the most part, been stocked with unremarkable folks. Chief Justice Roberts (like, to be fair, Justice Ginsburg) makes it easy to forget this fact.
In any event, I do not agree that years wallowing in the details of “Acronym v.
Acronym” on the D.C. Circuit is obviously better preparation for the work of the Court than, say, serving as White House Counsel.

To be clear, I am *not* making the argument that some are making, namely, “isn’t it great to have someone from outside the judiciary who is unfamiliar with constitutional law?” To use Gerry’s word, I abhor Hruska-ism. And, I *do* prefer nominees who have been judges. Still, I cannot say that Justice Kennedy’s years of unremarkable work on the 9th Circuit, or Justice Souter’s utterly forgettable tenure on the First Circuit, better prepared them for the work of the Court than did Miers’s work in this White House.

We’re all constitutionalists here. For now, I’m going to hope — and, actually, I’m reasonably confident — that Ms. Miers is, too.


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