getting over Bork, restoring our depleted legal capital

[Carrese Paul O Prof USAFA/DFPS]

The debate over Harriet Miers on both the ConLawProf list and Law-Courts list this past week - indeed, in the past few months, including discussions about Roberts - suggests that originalists or constitutionalists are having as hard a time leaving behind the Robert Bork confirmation scenario as are their progressive counterparts.  Must the Supreme Court be a, or the, central issue in American politics, and must there be one heck of a political campaign and fight about each nominee, central to which is their "ideological" orientation or credentials?  This scenario spells trouble for an independent judiciary over the long term, since what Larry Solum calls "the downward spiral" makes it difficult to maintain any semblance of legal integrity, and, as Hamilton argued in Federalist no. 78, if judges cannot maintain that, then there is no reason to grant them judicial review or respect their rulings.  So I offer to the lists a small point with large significance that has been overlooked (I think) in all the reasons given about why the President nominated the two candidates he did, whether they should be supported or opposed, and what all this means for constitutional law and judicial power in America.

 

This is the issue of the gold stripes on CJ Rehnquist's robes -- the larger import to Rehnquist adding them, to Roberts immediately removing them, and why Bush would be looking for Justices likely to remove them (the same principle applies to the white scarves introduced by O'Connor and Ginsburg - which I think Miers, if confirmed, would not wear).  "Judicial conservatives" have been concerned this week that Miers is not an outspoken adherent to originalism or anti-Progressivism - e.g., Wills and Barnett, as well as voices on this list.  This reaction briefly arose after Roberts was nominated, but for both nominees this lens overlooks the larger issue of the President's effort to try to restore a traditional approach to the judiciary and its role in the constitutional order by bypassing the grand debates between originalism and progressivism that are so central to professors and pundits, to the two major parties, and to various lobbying/advocacy groups.  The President would not need to be either a constitutional theorist or anti-intellectual to adopt this view; he need not be pursuing a scheme to tilt the court toward a "Schmittian" view of executive power; the same goes for his main legal advisers about judicial nominations (including Miers herself).  Roberts cogently articulated this traditional view, and Miers will likely enunciate in coming weeks - a view that many academics and pundits find naïve or deliberately cynical, but, it is precisely the view we should expect the president and senate in our Montesquieuan system to eventually adopt in reaction to the attempt by Holmes and Wilson, launched a century ago, to transform the judiciary into a policy-making branch.  While there are perhaps more credentialed exponents of the modest, constitutionalist view of law and judiciary among the bar and bench than Miers, she seems to be a traditional common law candidate for the bench, even the highest bench -- a very distinguished member of the bar with experience in both local and national legal issues, who would be likely to avoid grand theory; like Roberts, she could be expected to quietly undermine the commonplace view held by many members of these two lists (and far beyond in our political culture, thanks to folks like us), that courts and law are just alternate arenas of politics and political ideology.  

The reason why Article III has no specified qualifications for office - the only Article with none - is because it expects the President to nominate, and Senators to confirm, candidates like Miers.  This is not Hruskaism.  It is not selecting "stealth" nominees in a deceptive, cynical sense.  It is the understanding of the judiciary before Holmes' pretentious views about a "storm center" and judges being the sole determiners of what the law really means - that is, the understanding which allowed American judges to have judicial review, and to be quite powerful and prominent but not to an imbalanced, imperial degree.  Stripes, scarves, and the demand for a hullabaloo fight over the "ideology" of every nominee makes or maintains an imbalanced role for the judiciary in our system.  Judges in our system are supposed to be stealthy, or, cloaked (in plain black, that is).

 

Perpetual fights over the "ideology" of judicial nominees is deficit spending of our legal capital.  We professors may like it, pundits and lobbies may like it, but it is not sustainable.  The President's nominations of Roberts and Miers advance that restoration of constitutional and legal equilibrium, and the Senate has signaled its acceptance of the same.  What surprises me in the past week is that originalists have demanded an "ideological" nominee and lament that there won't be a "national debate" or fight.  This is not representative of the original, traditional, common law understanding of law and judicial power in our system.

 

Paul Carrese

 

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Dr. Paul Carrese

Director, Academy Scholars Program

Professor, Political Science

US Air Force Academy

Fairchild Hall, 6L116

USAF Academy, CO 80840-6258

 <mailto:paul.carrese at usafa.edu> paul.carrese at usafa.edu

719 333-3563

 <http://atlas.usafa.af.mil/scholars> http://atlas.usafa.af.mil/scholars

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