Tuesday, October 25, 2005


From what we see in the papers, Harriet Miers is qualified to be on the Supreme Court. She obviously is not the most qualified person, but since when is that a reason to reject a nominee. Some Democrats plan to oppose her because they fear she would vote to overrule or limit the rule of Roe v. Wade. This is not a case where we are picking a representative to vote on whether the law ought to guarantee that a pregnant woman has an absolute right to end her pregnancy by abortion in the first trimester. We are picking someone to be a judge. If we believe she would be a good judge, we have nothing to fear, because a good judge will not let her own personal views interfere with her obligation to follow the law without fear or favor.

It has been said by many that she is not qualified because she is not well versed in federal constitutional law. That is not a big problem. She has not argued 39 cases in the Supreme Court, as Chief Justice John Roberts had. But how important is that? How much did John Roberts, lawyer, learn after the first or second appearance he made in the United States Supreme Court? What did he learn about? Sure, he learned some of the idiosyncrasies of the individual justices (from listening to them in oral arguments which were held in relative secrecy, no live audio nor video). Perhaps Roberts was there when Chief Justice Rehnquist in open Court reprimanded the lawyer who, while arguing his case, made the mistake of addressing the Chief as “Judge,” instead of “Mr. Chief Justice.”

What do you learn in oral argument before a Court where the justices interrupt the lawyers and talk down to them and otherwise treat them with disrespect? You learn what you are up against, and that is all. It is like talking to an audience; you learn what the audience is like and you try to please without being obsequious. Whatever constitutional law, or other law, you learn, you learn in reading the law and doing the brief. I doubt that the justices often ask questions and make comments to the arguing lawyers, in order to learn. I believe the questions that the justices ask (in the United States Supreme Court oral arguments) are often for the purpose of expounding the preconceived opinions of the one asking the questions.

A good example is that (it is reported) the new Chief Justice, at his first oral argument, interrupted the arguing lawyer during the lawyer’s first sentence, with a question which began with words to the effect,”But doesn’t that do thus and so, etc.?” What does that say about the Chief Justice? Would Harriet Miers have done that?

The Justices do not read all of the petitions for hearings; there are thousands each year. They do not even claim to read the one-paragraph summaries contained in the petitions. They delegate this task to clerks or committees of clerks. They may tell their clerk to keep on the lookout for a case which will allow the Court to take up such and such an issue. We do not learn about this, because of the secrecy of the proceedings of this branch of the government. How would we feel if a general jurisdiction trial judge (say District Court, in New Mexico; or Superior Court, in California; or Supreme Court, in New York) were to tell her clerk, “Be on the lookout for a case that we can get assigned to hear, and that raises the issue of thus and so?” How would we feel if we were a party on one side or the other of a case involving just that issue?

If Harriet Miers is a good lawyer, with decades of experience as a lawyer, and especially if her experience has been varied, then she is qualified to be on the Supreme Court. She no more needs a cram course in constitutional law (read that federal constitutional law) than she needs one in the law of crimes, or the tax code, or the United States Code, or any of the other numerous fields of law that come before the Supreme Court. A good course in statutory construction would be helpful. A good course in American history would help. Latin would be a relative waste of time. A good grounding in law school, and experience, are enough.

It is not necessary that she have been a judge; there is always the first time when a lawyer becomes a judge. If you insist on a judge, at least insist on a trial Court judge.

If Harriet Miers is an honest person and a fair-minded person, and if she has the professional qualifications, then let her have the job. Let President Bush have his choice if we can be satisfied that Ms. Miers is honest and fair-minded, and experienced as a lawyer for decades. How would Chief Justice Roberts have done if given a job as a federal prosecutor, or a State public defender, or second chair in the defense of a medical malpractice case? Probably, very well; but that is because he is bright, not because he argued almost 40 cases before the Supreme Court.

The Supreme Court requires you to file an application to have your case heard; and if you are lucky enough to get a hearing, you will spend many days on the research and several days writing and editing your brief for the Court. You will then get 45 minutes to orally argue; big deal. So Chief Justice Roberts stood in the Supreme Court for 30 hours over the time of his career. I do not minimize that; I respect his abilities and reputation. But the lawyers who make oral argument before the Supreme Court seem to me to be like a specialty team (say kick-off) in football. We want industry, patience, good will, courtesy, integrity; and considerable experience as a lawyer in a wide variety of jobs.

If you personally had a very important case, one that affected your life or the lives of your family, would you want it tried to Judge Roberts, or to Judge Miers (sitting as a solo trial judge)?