Miers / White

[Bernard Bell]

    Having clerked for Justice White, I'm biased in his favor.  Nevertheless, it seems to me that over the course of his career he had great influence on the Court and crafted doctrines which still structure constitutional analysis in important ways.  Moreover, his philosophy was somewhat unique in that he was much less ready to find governmental conduct unreviewable than many conservative Justices (see, e.g. White dissent in Nixon v. Fitzgerald, Nixon v. United States (re impeachment of Judge Nixon), Banco Nacional v. Sabbatino, and Stone v. Powell) but willing to give more deference to governmental actors in the course of meaningful judicial review than some of his more liberal colleagues.  Justice White was a key figure in the establishment of a "good faith" exception to the exclusionary rule, presaging his argument in his Stone v. Powell dissent, and then writing for the Court in United States v. Leon, the case that established the "good faith" exception.  He also had an enormous influence on Free Speech doctrine as it related to the press, writing a series of opinions that continue to structure the analysis: Branzburg v. Hayes, Zurcher v. Stanford Daily, Cohen v. Cowles Media Co., and Herbert v. Lando.  His dissents in defamation cases, one free speech area in which he was in the minority, cogently exposes the weaknesses of extant First Amendment doctrines regarding defamation (I'd ultimately opt for something resembling the current approach than for White's approach, but I don't think that takes away from the importance of the position Justice White laid out in some of his dissents, such as the dissent in Gertz v. Welch).  Going back to the Fourth Amendment area, he wrote several important opinions that help structure the approach for defining reasonable expectations of privacy and the scope of the administrative search exception, see California v. Greenwood, Delaware v. Prouse, and Marshall v. Barlow's Inc.
    As I have stated elsewhere, Justice White concentrated on resolving individual cases rather than espousing overarching jurisprudential theories.  (After his confirmation hearings, which lasted all of 90 minutes, a journalist asked nominee White to define the constitutional role of the Supreme Court.  His cryptic answer: "to decide cases.")  Accordingly, perhaps particular opinions do not stand out for sketching out any rigorous jurisprudential position.  Yet Justice White's body of work was influential and impressive.  Does that add up to "great distinction?"  Perhaps not, but its far more than "smart and reasonably able," and indeed seems to me to at least qualify as a career of distinction.  I should think a President would be proud to have appointed a Justice that had such a career (though obviously no President would agree with all of Justice White's, or any other Justice's, opnions and votes).
   As you might guess, I've written various assessments of Justice White's career, most particularly "Byron R. White, Kennedy Justice," 51 Stan. L. Rev. 1373 (1999); "The Populism of Justice Byron R. White: Media Cases and Beyond" 74 U. Col. L. Rev. 1425 (2003); "Judging in Interesting Times: The Free Speech Jurisprudence of Justice Byron R. White," 52 Catholic U. L. Rev. 893 (2003).

Regards,

Bernie Bell

Bernard W. Bell
Associate Dean for Faculty
Professor & Herbert Hannoch Scholar
Rutgers Law School-Newark
123 Washington Street
Newark, NJ 07102
(973) 353-5464 (voice)
(973) 353-1445 (fax)
bbell at kinoy.rutgers.edu


>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 10/03/05 06:51PM >>>
 
Wasn't White's nomination in part an example of JFK's insouciance,
similar to his nomination of his patently unqualified brother to be AG,
with regard to appointing whomever he wished to?  (We could also talk
about a number of truly terrible appointments he made to the 5th
Circuit.) Of course RFK turned out, in many ways, to be a great AG, so
there are interesting questions to be raised about what counts as
qualifications for public office.

White was presumably smart and reasonably able, but would anyone,
including his biographer, view his 32-year career as one of great
distinction?  I can recall three great opinions he wrote, all of them
"functionalist," indeed "realist" dissents from formalist decisions by
his colleagues, Chadha, Marathon Oil, and, my own favorite, his angry
and eloquent dissent in NY v. US.  (He was, after all, educated at the
Yale Law School in the '40s.)   Can anyone recall a majority opinion of
any great distinction?  I think he wrote the majority opinion in
Washington v. Davis, surely an important case, but I assume not a great
opinion even if one agrees with the result. 

Does anyone doubt, incidentally, that Bush regards it as a very strong
plus, as he looks into her "heart," that she is apparently a very strong
churchgoer (a Catholic convert to Pentacostal Protestantism,
apparently)?  Apropos the discussion about who has the last word, is it
not clear that this particular president is applying a religious test
for office that would be patently unconstitutional if it were
formalized?  So has George Bush in effect rendered irrelevant Article VI
and the No Test Oath Clause?  (Can anyone imagine Bush appointing anyone
who has no religious affiliation?)  When John Paul Stevens dies, will
anyone suggest that agnostics and athiests are entitled to a
replacement?  

Isn't it (almost) time to stop the pretense that gender has anything to
do with diversity, unless, of course, one believes that there is a
distinctly "feminine" sensibility?  Is there any evidence that Meirs has
been energized by her own experience to oppose discrimination in all of
its forms, or did she learn that the correct solution to discrimination
is "blindness."  Is there any evidence, for example, that she did
anything to promote the hiring of other women at her law firm (or in
other sexist Dallas law firms)?  Is it relevant, incidentally, that she
is unmarried?  This means, among other things, that she has certainly
never faced any standard-model career-family tensions.   

One other question--a serious one--about Meirs.  Is there any evidence
of a single instance in which she actually took a public position about
something important that might have surprised anyone or caused someone
to say "I might not agree with her, but she's certainly being gutsy in
saying or doing X"?  Lewis Powell had demonstrated some degree of
courage in breaking with Richmond racists to support at least some
degree of school desegregation.  What has Meirs ever done to exhibit her
capacity for judgment under pressure?  (As I say, this is a serious
question.  Perhaps others on this list know of some relevant answers.)

sandy  
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