Practical Experience is Not Enough
The 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.