Regarding the Miers nomination, a few days ago I wrote, parenthetically:
(A reply, I suppose, could argue that with such chiefs as Roberts, Scalia, and Thomas on board all the court needs is another Indian.)
Now I see that this may actually be the White House’s position. According to James Taranto today:
… The White House position seems to be that Bush gave the Supreme Court an excellent leader in Chief Justice John Roberts … , and that what the president was seeking in his second pick was not someone with “sharp elbows” but a reliable “conservative” vote.
Hmm. So the president picked a nice dutiful little lady who, he assures us, will follow demurely several steps behind wherever the big boys lead, voting right but ever mindful of her role as spear carrier (“minor actor in crowd scenes”).
I’m sure the feminists will be impressed and shower the president with affection for picking “a woman or minority” (also here).
I am a retired lawyer. I have argued three cases before the U.S. Supreme Court, two of which are usually at least footnotes in most Constitutional Law texts.
I do not want a “great” Supreme Court Justice. I want a “great” Supreme Court. No single justice decides a case before the Court, the Court as a whole does.
Though I tend conservative, my “great” Supreme Court is not necessarily conservative. A great Supreme Court is one that has an open mind — one that sees each case not merely as the stuff to be pressed into another brick in a long running ideological argument, but as an individual question with its own facts and peculiarities of law. A great Supreme Court is one that has intellectual integrity — its decisions are defensible as logical honest outgrowths of the facts and law in the case. A great Supreme Court is one that decides matters clearly and forthrightly and thus provides guidance for lawyers and inferior courts.
What do I mean by an open mind and intellectual integrity? In one of my cases the concurring opinion starts off :
“I join the opinion of the Court, but I add these comments to emphasize the narrow scope of today’s decision.”
and ends with:
“…..the Court has been presented with another of those cases – “few in number….”
Those words are a tribute to the then existing Court — the four judges who concurred were ideologically opposed to the result. Unwillingly, but honestly, they nonetheless reached it. I do not think that such opportunity for success is as open in today’s Court.
In my opinion the present Court has two great failings. I suspect these are the result of the present near equal ideological split.
First, it cheats. It fails to discuss or consider facts that are inconvenient to its decisions. It silently ignores or redecides the trial court’s findings of fact. This corrodes justice.
Second, it lacks clarity. Perhaps in order to attract a swing vote in the middle, its majority opinions are often vague, muddled, and internally contradictory. It is all too fond of various forms of “balancing” tests. Most disputes are settled because the lawyers and the parties have a fair idea of what the result would be if they litigated. Losing that certainty exacts a serious and real cost in uncertainty. It also gives increasing scope for unjust causes of outcome — which trial judge was drawn, where the case was brought, what the decision of the U.S. Attorney was. Uncertainty does serious harm to justice.
I know very little about Harriet Miers. What I have read, however, suggests that she would bring several things to the court. First, she seems a detail person with a strong desire for to grasp all the facts before deciding. Good for her. This court badly needs someone who could say at conference, “But what about the district court’s finding at paragraph 113?” or would put in red ink on a circulated draft, “Contradicted by testimony at page 456 of the record”. Attention to detail can both force the court to a greater intellectual rigor and to a more open mind.
Miers background suggests to me that she will also recognize that certainty, by itself, has a value to law that may be greater than ideological victory. The present court lacks this apprecition.
My two favorite modern justices, John Marshall Harlan II, and Hugo Black, were not themselves great justices. But both made the courts they were on better courts. Harlan forced intellectual honesty of his brethren. Black forced them to come down from the towers of reasoning and look at what the Constitution said. He also taught that a straight reading of the Constitution was not only a shield for conservatism, but a sword for personal liberty and civil equality.
As to qualifications : Harlan was a patrician that would meet every requirement of even the snootiest law school professor. Black was an ill educated Roosevelt political crony of sordid and despicable background. Both became superb choices. They made the court better.
I think Miers will make this court better.