Miers’s Experience

I have a quite different take than JPod on Miers’s questionnaire. That she’s only argued a handful of cases before trial or appellate courts is not particularly relevant. How often an attorney has stood in front of a judge or jury says very little about his or her qualifications. What matters is the type of issues that attorney has worked on, as well as the quality and depth of the attorney’s work. From that standpoint, the questionnaire should be mildly reassuring. Miers has worked on a wide range of complex legal questions – and has more practical legal experience (particularly on business issues) than most justices currently on the Court.

In a later post, JPod writes, “If the Miers defenders want to make the case that her experience writing briefs and billing hours and negotiating settlements has prepared her for the Supreme Court, they should go right ahead.” What does he think Supreme Court justices do? They certainly don’t preside over trials or deal with juries and evidence. They listen to arguments, read briefs, write opinions, and negotiate with their colleagues. Setting aside the subject matter, this is much more like the work that Harriett Miers has actually done than what JPod seems to want – courtroom experience defined as standing in front of juries and making oral arguments. Indeed, this sort of criticism of Miers is easy for her supporters to dismiss, as it betrays a degree of unfamiliarity with the practice of law. Miers may be a bad nominee, but that does not make every argument against her a good one. As I’ve noted before, Miers is “qualified” to serve on the Court, in that her qualifications and experience compare favorably with many justices who have served on the court in the last 50 years. Of course, as I’ve also noted, that’s not the issue. There are lots of people who are qualified that still should not have been nominated, and I’ve seen little reason to believe that Miers is not in this group.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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