One of the most wonderful things about our system is its provision for public dialogue on the issues of the day. The First Amendment guarantees our right to engage in such discourse and every one of the thousands of elections held nationwide provides an occasion for it.
The greater numbers of these elections are local and since, as Tip O’Neill famously observed, politics is local, most of the dialogue is itself necessarily about local issues. But every four years we have a presidential election and that national spectacle gives us an opportunity to debate the national issues and the great issues of the day.
In my opinion we squandered the opportunity to engage in such a dialogue last year. It was drowned out in the squabbling on interest politics and recriminations on a war thirty years gone and the conflating of that war with the one we’re engaged in now. And, then, small candidates don’t make for great debates.
Our failure to seize the opportunity for such debate is a national tragedy.
Supreme Court appointments provide the opportunity for such debates, too, and I hope that we can take the fleeting moments between the nomination and the squabbling over narrow interests to consider some broader questions than the inevitable questions about how Justice-designate Miers will decide on cases on which she may be asked to rule (and make no mistake: that’s precisely what she will be asked by the members of the Senate Judiciary Committee).
Questions have been raised by people of all political stripes about Ms. Miers’s qualifications for the post to which she has been appointed. In his press conference this morning President Bush responded that he is confident that Ms. Miers has an essential qualification in that she has a judicial philosophy of the sort for which he himself has expressed preference and her character is such that that philosophy will not change after she has been appointed to the Court. This differs notably from several sitting Justices notably Justices O’Connor, Souter, Breyer, and Kennedy, each in his or her own way a “stealth candidate”.
Assuming for the moment that the president is right in his judgment is he also correct in his valuing of that qualification over other qualifications such as prior experience as a judge?
I have no particular opinion on Harriet Miers in particular one way or another. As Ann Althouse wisely pointed out yesterday, we’ll see soon enough. I’m raising these questions as part of a larger debate on the nature of our society and the Court.
The United States Constitution provides detailed definitions of the structure of and qualifications for the House of Representatives, the Senate, and the President. It is quite silent on the structure of and qualifications for the Supreme Court. The structure we have and the qualifications we have come to expect are by custom and by act of Congress. During my lifetime there have been several Associate Justices of the Court and two Chief Justices who have had no prior judicial experience before being appointed to the Supreme Court of the United States. They had not taught law and, to the best of my knowledge, had not published extensively on judicial philosophy or theory. Have the nature and complexity of our society reached the point where we need to impose more structure on the Court and place more stringent requirements of qualification on its Justices?
As I pointed out yesterday historically the formal qualifications to practice law, teach law, and serve as a judge have all been identical. Should this be changed? Should there be different tracks, courses of study, or credentials for practicing lawyers, professors of law, and judges?
Good questions. Thanks for the invitation to comment.
I don’t think the answer to this question is likely to be static over the ages. But I feel very strongly that for the last three decades, the Court has lurched further and further into a crisis that is threatening its ongoing viability as a coequal branch of government accepted and respected as such by the public. So at the moment, given our current Court and recent history, I do agree with Dubya that a judge’s committed belief in staying within his proper bounds is much, much more important than any other single factor. (And as single factors go, I rank “prior judicial experience” behind several others as well.)
I don’t believe it would be wise or practical to impose some sort of formal, structural qualifications (e.g., through constitutional amendment or, perhaps, amendment of the Judiciary Act). And I’m more concerned by the current inclination of Senators (of both parties, but more recently the Democrats) to hyper-politicize judicial nominations and stray outside their traditional advice and consent role. It’s not my perception that we’ve confirmed unqualified Justices; although that probably is true with respect to some district and circuit judges, I don’t see it as a serious and widespread problem even at those levels.
All that said, however, I do think it’s appropriate and important for Presidents to consider what sorts of backgrounds and experiences are adequately covered, and what sorts are missing, from the Court in picking nominees. Right now, for instance, there’s nobody on the Court who’s had substantial day-to-day experience as a practicing lawyer in private practice of any sort, nor any expertise to speak of on transactional law in general, nor any experience as a courtroom lawyer or trial judge. Those gaps sharply raise the risks that the Court will do stupid things without realizing it, or cause drastic consequences the Justices haven’t foreseen. I look forward to the day when maintaining at least one “business practice lawyer” on the Court will become more important than maintaining at least one (token) black, Jew, woman, etc.
I’m sufficiently libertarian and distrustful of society’s ability to competently micromanage such things as to be fairly hostile toward the idea of making changes in “formal qualifications.” On the other hand, I’m a proponent of such things as mandatory continuing legal education for practicing lawyers; I’d give serious thought to requiring something analogous to that which would force law professors to occasionally depart their ivory towers. In the end, though, even if well intentioned, I suspect such schemes would backfire.