Bench Memos

Bankrupt Arguments

This morning Kathryn quoted the last paragraph of an op-ed in today’s Wall Street Journal by Ronald Cass and Kenneth Starr (subscription-only access, but maybe we can cajole OpinionJournal into posting it in coming days). It strikes me that Cass and Starr do the case for Harriet Miers’s nomination to the Supreme Court no good at all; in fact they probably harm it.

There seems to be a lot of connective tissue missing here. The column begins by noting that while the focus of the Miers debate has been on constitutional questions, the business community homes in on other cases on the docket. The column ends with the paragraph Kathryn supplied below, remarking that the U.S. Chamber of Commerce and other business groups “have praised Harriet Miers’s nomination” and that Cass and Starr join them in applauding her “significant experience in business law.” In between are sixteen paragraphs–constituting the bulk of this 1,500-word filibuster–that review a number of business-related case-law trends on the Supreme Court in recent years. The column as a whole operates as a great big non sequitur, for it does not follow from the manifest importance of the cases reviewed by Cass and Starr, and from the “experience in business law” of Harriet Miers, that she would make a positive or notable contribution to the resolution of the business-related legal conundra the Court regularly faces.

The body of the piece begins with this sentence of pure buncombe: “As teachers and writes on constitutional law, we would not for a moment downplay the importance of constitutional issues.” That begins a sixteen-paragraph effort to do just that. But worse, the effort to put this over all but concedes that Ms. Miers is not ready for prime time in constitutional law.

Anyway, Cass and Starr can’t manage to talk about their chosen subject of business law without regularly straying into the constitutional dimensions of the relevant case law. Whether high punitive damages violate due process, whether the recent extension of copyrights by Congress was within its constitutional authority, whether last summer’s Kelo ruling on eminent domain rested on a good or bad reading of the takings clause–these are the sorts of cases where Cass and Starr think Miers will bring some expertise to bear. (Perhaps they really believe this guff–they construct one of the weakest arguments I’ve seen against the Kelo decision, precisely because they approach it from an economic perspective, not a constitutional one.)

So the realms of “business law” and constitutional law are not so distinct. What about other, non-constitutional problems in law? Cass and Starr cite some other dimensions of “business law,” like jurisdictional questions and telecommunications, where the relevant skill of the judge is his well-trained eye for statutory construction–a subject-neutral form of legal acumen that is more likely to be developed by deciding or at least arguing many federal appellate cases than by representing businesses in their everyday affairs. Here a John Roberts would be a much more high-value appointee from a businessman’s perspective than a Harriet Miers.

All that is left for Cass and Starr is to dwell at length on antitrust–an area of law that has practically devolved back into wholly judge-made common law, thanks to congressional indifference to meaningful statutory contributions to this area for decades now. Here and only here, one might prize an experienced business lawyer’s understanding of the way markets operate. I know of no evidence that judges with business experience or who have studied economics make more sensible rulings than judges who lack those qualities, but such evidence might exist. And Harriet Miers does have some antitrust practice in her background.

Distilled to its essence, then, the best case Cass and Starr can make is that Miers will be the Court’s resident specialist on antitrust and one or two other business-related matters. So will she recuse herself from constitutional cases until she has studied up? That seems to follow as easily as any other conclusion that can be derived from this poor excuse for an argument.

Nor should it count for much that the Chamber of Commerce likes her. Even country-club Republicans can see that, as much truth as there is in saying that the business of America is business, there is none at all in saying that the business of American jurisprudence is business.

Whether they like it or not, Cass and Starr have made the case against Miers stronger than the one for her.


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