Practical Experience is Not Enough

cornyn.jpgThe most generous way of describing my reaction to Harriet Miers’ nomination is to say that I am rather underwhelmed. So far, Bush’s two main arguments for Meirs seem to be “trust me” and “I know her heart.” Suffice it to say, I don’t find either of these particularly compelling. Senator John Cornyn (R-Tx), however, has advanced a more substantial argument in her favor. He writes:

Harriet Miers’s background as a legal practitioner is an asset, not a detriment. She has spent her career representing real people in courtrooms across America. This is precisely the type of experience that the Supreme Court needs. The court is full of justices who served as academics and court of appeals judges before they were nominated to the bench. What the court is missing is someone who understands the consequences of its decisions on the American people.

Cornyn’s argument echoes, in abbreviated form, that made by Stuart Taylor last month in the Atlantic Monthly. There is some real merit to the Cornyn/Taylor critique. The Court does, on occasion, tend to be rather oblivious to the chaos that from time to time its decisions can create in the lower courts. An experienced pragmatist who has duked it out in the trenches might be a welcome addition. After all, at the end of the day Supreme Court opinions are not written to provide grist for the law reviews, but rather to announce the law. Some familiarity with the law in practice is obviously a virtue.

The problem with this argument is that it proves too much. If a life time of duking it out in the trenches qualifies one for the Court then there are few senior practioners who are not qualified to be a justice. Perhaps this is the view of some, a legal iteration of Kissinger’s dictum about being governed by the Harvard faculty versus the first ten names in the Boston phone book. (“I would rather have a Supreme Court filled with nine names chosen at random from Martindale-Hubbel, rather than nine names chosen at random from the Harvard Law School faculty.”) I have to confess, however, that it is going to take quite a bit more than this to convince me. Extended practice experience may be a virtue, but it is certainly not a sufficient one.

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4 Responses

  1. KipEsquire says:

    It was William F. Buckley who said that, not Henry Kissinger.

  2. Huggy says:

    I would hope President Bush is communicating:

    > SCOTUS appointments are political.

    > Politics should be inclusive.

    It’s a gesture allowing the political war to end. Remember that the DEMOs are his friends and neighbors. It’s a grand gesture.

  3. Simon says:

    I don’t agree with Senator Cornyn’s assesment, although my reasons may well be naive, and I would welcome someone constructively tearing them apart.

    I am not so convinced that either her experience as a lawyer is a good thing, untethered from an intellectual counterbalance as a Judge or academic, or that her experience in the trenches is a good thing. I explained my concern on the first point here.

    To the other point, my concern would be that experience with the real-world consequences of one’s judgements is likely to make a Justice pause to consider whether a ruling which is constitutionally necessary should be made if it had far-reaching practical effects. In my view, a Justice should not entertain such concerns.

    For example, in Blakely, I do not think that Justices O’Connor and Kennedy were necessarily mistaken in their dire predictions. My point in rebuttal would simply be “so?”. The bill of rights was written to protect basic rights; in my view, it was not written to make government easy, it was written to make it hard. Justice Scalia’s majority opinion rightly point-blank ignores the concerns of the dissents, because they are immaterial to the point at hand.

    My concern is that Miers is too likely to be result-oriented; she has a background in a results-oriented career, without firm anchorage in constitutional theory, and her experience in the trenches may make her like the General who has grown too fond of his men to order the assult.

  4. Roach says:

    If Bush were serious about practical experience, he’d put a distinguished district court judge in place, like Lee Rosenthal from Houston. Practical lawyering and decionmaking from the standpoint of one who is not allied to one or another side or class of litigants is part and parcel of the requirement for “blind justice.”

    The kind of legal reasoning required to interpret complicated statutes, constitutional provisions, and the like is not something everyone has or that one can develop overnight. Mier’s penchant for firm administration and bar association glad handing suggests she moved away from the hard work of lawyering to the more inchoate world of business and politics.

    Her fondness for John Grisham doesn’t suggest she’s devloping these reasoning skills in her off time.