getting over Bork, restoring our depleted legal capital
hchamber at richmond.edu
Tue Oct 11 07:08:20 PDT 2005
We could treat the Roberts nomination as the Establishment pick and Miers as Bush's pick.
President Bush says he does not do nuance and that he wants a strict constructionist on the Court. Miers might be the best non-nuanced, strict constructionist he could find. Bush has, in essence, dumbed down the job description of a Supreme Court justice. He did so with the complicity of those who now are ripping him for his pick, as they had little to say when Bush suggested that judicial decisionmaking is essentially the legal equivalent of painting by the numbers. Who needs to look for Rembrandt when Leroy Nieman will do? (I really mean no disrespect to Leroy Nieman (or Harriet Miers), but you get the point.) We reap what we sow.
Of course, even under a non-dumbed down standard, I am not sure what all the complaining is about. Even if the Court is currently filled with distinguished minds (and I will really do not know if Miers has an undistinguished mind), the work it turns out does not prove it. I suspect that Miers is up to the task of producing the quality of work the Court has produced over time. Of course, this does not mean I would vote for her confirmation. That is a much more complex issue than whether she is qualified for the job.
Henry L. Chambers, Jr., Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, VA 23173
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of cornell Clayton
Sent: Monday, October 10, 2005 11:48 PM
To: CONLAWPROF at lists.ucla.edu; lawcourts-l at usc.edu
Subject: Re: getting over Bork, restoring our depleted legal capital
I'll let Mark speak for himself (as if I could stop him). But the simple truth is that Bush has made an abominable Supreme Court nomination. Someone so undistinguished that no person other than Bush would have put her name on on even a long short list for the Court. She is clearly not among the many qualified conservative lawyers, judges or politicians in this country who should be considered for such a position (forget Bush's quip that she is "the best qualified person" he could find!). Some conservatives (Will, Kristol, Buchanan) at least have the guts to call this nomination what it is (an unmitigated disaster, the product of an incompetent president). But arguments defending this nomination as "anti-elitist" (as if the Court shouldn't be a place where we want the best and brightest) or as a counter to Oliver W. Holmes and the last one-hundred years of American jurisprudence, are nonsense and should be called such. Legal academics should at least be able to agree, whether liberal or conservative, that the Supreme Court is not a place for mediocrity or even competent but undistinguished minds.
At 07:21 PM 10/10/2005, Matthew J. Franck wrote:
Since I count both Paul Carrese and Mark Graber among my friends, maybe I can intervene here. Perhaps Paul's cri de coeur might be criticized for naivete, from Mark's perspective. But the vehemence of Mark's reaction is baffling to me. It is unclear whether Mark means to refer to Paul or to the president when he refers to "a collection of cliches known to be false, intended to delude the public." But the tone of contempt in his response is unworthy of Mark, and undeserved by Paul.
As I understand it, Paul's argument is simply this: that there was once an understanding of constitutional judging, rooted in common law traditions, to which the notion of judicial "ideology" was alien, and in which the judge recoiled from any temptation to make public policy in the place of legislators and executives. This has not been conclusively shown to be a false or deluded understanding of the judicial function, even if it was often honored in the breach more than in the observance. (It may be something in favor of that older understanding that the American people, not yet conclusively shown to be universally fools, generally believe in it even today.) That argument continues, and these lists are among the places where it continues.
That being said, I have to disagree with Paul on one or two points. He may give the president, as well as Ms. Miers (and even the new chief justice), too much credit when he suggests that they wish to restore an older, more modest understanding of the judicial function. Would that it were so, but I doubt it.
As for those of us who wished for a big political fight over the shape of the Supreme Court and have been frustrated by the nomination of Miers--and I count myself among those so disappointed--I see no contradiction between such a wish for a high political brawl on the one hand, and the end of a depoliticized judiciary on the other hand. One day, and the sooner the better, it will take something like an ugly confrontation between the imperial judiciary and the other branches of government in order to restore the rule of law to the third branch--or else that restoration will simply not take place. Now was as good a time for that confrontation as any, but the president has ducked the fight with the Miers nomination. If he ever even understood what was at stake, that is, which I very much doubt, to my great regret.
Matthew J. Franck
Professor and Chairman
Department of Political Science
P.O. Box 6945
Radford, VA 24142-6945
e-mail mfranck at radford.edu
At 07:13 PM 10/10/2005, Mark Graber wrote:
Whose the politician?
Most of on this list believe that the constitution does not speak clearly on many points, that persons in good faith may dispute constitutional visions, and that presidents, every president, appoint justices who share their constitutional vision. In short, most of us, from Randy Barnett to Sandy Levinson are engaged in politics in the highest sense. We give advance our arguments, explain the merits of our ideas, and ask the public and public officials to make their choice.
The following post, may I suggest, is politics in the lowest sense. The idea that George Bush is an exception to this practice is preposterous. Indeed, what we have is a collection of cliches known to be false, intended to delude the public.
>>> "Carrese Paul O Prof USAFA/DFPS" <Paul.Carrese at usafa.af.mil> 10/10/05 6:45 PM >>>
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.
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
< http://atlas.usafa.af.mil/scholars> http://atlas.usafa.af.mil/scholars
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