Bench Memos

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I fear that my friend and former colleague Doug Kmiec is coming down with a mild case of Hruskaism. “Hruskaism” is the diagnosis whenever the apologist tries too hard to turn a candidate’s weaknesses into strengths. Hruska tried to do it for G. Harold Carswell, Nixon’s ill-fated nominee for a high Court seat for which he previously nominated Clement Haynesworht. Roman Hruska was a Pepublican Senator from Nebraska for thirty-two years. He did not secure his place in American political history, however, until 1970. That is when he rose to defend Carswell against critics who said he was a “mediocre” judge (which Carswell undoubtedly was). Hruska exclaimed that many people are mediocre, and that they deserved to be represented on the Court, too.

Kmiec tries too hard to make a virtue out of what appears to many of us to be a weakness in Harriet Miers’ nomination: her lack of discernible philosophical commitments, both substantively (what does she think about the justice of affirmative action or abortion?) and more strictly legally (what is her theory of constitutional interpretation?). This might not be so bad if we could count on hearing a lot about both at her upcoming hearings. But we won’t.

Kmiec would make a virtue even out of Miers’ innocence of almost all things constitutional. Her “hard work” will make up for it, and maybe it is better to have some from outside the “judicial monastery” anyway. Must be; even Pat Leahy suggested it. But perhaps it would have been better still to pick someone who was both worldly and constitutionally sophisticated. Like maybe even a law professor, or a Senator.
“Conservatives” are “whini[ing]” on the blogs, Doug reports, about how little Ms. Miers knows of constitutional law. That this will make her even a better Justice, Doug holds. Why? Because then she will be all the more an impartial judicial “umpire” — here citing John Roberts’ ironic description of what judges are called upon to do in constitutional cases. But what if the umpire for today’s game should be heard to ask the batboy, “Where is home plate”?

Doug explains further just how it might be that a Justice without a philosophy is a better Justice: no justice “is invited to propound a personal philosophy on the great issues of the universe: abortion,
affirmative action, assisted suicide, religion in public life”. A
“personal philosophy”? No. But what if abortion or affirmative action is
required by objective norms of justice — or prohibited by them? The
judicial “umpire” has no need of such convictions. In fact, having them is a liability. For to have them is to be tempted to act on them. And then we would have the Mother of All Judicial Sins: “a judicial ethic of [] personally imposed views”. Better, it surely seems, to be more of a blank slate. Maybe Chance the Gardener (Peter Sellers’ character in the movie Being There) deserves a spot on the Court, too.

There is of course nothing new, or distinctly conservative, or even remotely helpful in this way of thinking. Besides, we already have plenty of Supreme Court Justices who think as Professor Kmiec recommends. As recently as 2003 a majority of the Court subscribed to this job
description: “Our obligation is to define the liberty of all, not to mandate our own moral code”. See the majority opinion by Justice Kennedy in Lawrence v. Texas, citing the opinion of the three Republican “centrists” who affirmed Roe v. Wade in 1992.

Almost forgot. Hruska did not save Carswell’s nomination, which went down in flames. Harry Blackmun got that seat on the next go-around..


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