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Friday, October 21, 2005

The Unbarking Dogs of the Legal Academy

Much has been written on the Democrats' strategy on the Miers nomination.  For the most part, the Democrats are remaining silent on the Miers nomination, figuring that Republican fratricide will do them more good than Democratic involvement.  Moreover, given her thin record, they are unsure whether Miers will prove to be a more moderate Justice than President Bush has hoped, and less effectively conservative than other conservative prospects for the Court with proven track records.

To my mind, this puts the Democrats on the wrong side of the questions of consistent principle that ought to govern a nomination to the Supreme Court.  I have written that senators are always free to vote against a nominee on the basis of their views on how the nominee would eventually vote -- although I don't think this vote should be prettied up by efforts to paint such nominees as "outside the mainstream" and so forth.  But the absolute quality of a nominee ought to be a factor in approving or disapproving a nominee, in my view, and if it is fair to suggest that Miers is not a strongly qualified nominee -- if, for instance, Bill Stuntz is right to say that Miers' writings suggest that she has "very few ideas and no particular skill at expressing them" -- then Democrats interested in a strong Court ought to oppose her nomination regardless of whether she might be ideologically preferable to other nominees.  Therein lies the Democrats' dilemma -- actually, a double dilemma.  1)  They do not want to oppose Miers loudly if they think her replacement might be a Luttig or a Brown, both because those judges are a more potent threat to their desired outcomes and because such nominations would be a political and fundraising prize for conservatives.  2) They also may not want to be on record as viewing mediocrity as a disqualification for the Court, since it constrains their own future choices.  My tentative view on the first horn of the dilemma, and my firm view on the second, is: too bad, so sad.  The Court is an important institution, it deserves to be staffed by the best people, and while a nominee's ideology is an important factor in a senator's vote, the nominee's quality ought not take a back seat.

What I find striking, though, about the public debate on the Miers nomination is the relative silence of so many folks who were out front in the Roberts nomination.  Specifically, where are the law professors?  A law professor, of course, puts fealty to principle above loyalty to party.  (Right?  Right?)  And if he or she thinks Miers is a mediocre pick, and otherwise is not shy about sharing his or views on other judicial nominees, then that professor certainly ought to be speaking loudly about Miers' comparative lack of merit as a nominee -- even if that dooms Democrats to the fate of a more qualified but more conservative Justice.  Yet it seems to me that many of the professors who were loudest in opposing Roberts have, like their confreres in the Democratic Party, been pretty quiet about Miers, and especially about her relative lack of qualifications for the Court. 

I think here especially of Erwin Chemerinsky, I must say.  Chemerinsky is, to be blunt, the bellwether for conventional liberal Democratic views of the Court and the Constitution.  His public views seem rarely to stray far from the party platform.  And he was quite vocal about the Roberts nomination.  Yet I find, in searching Nexis and Google, that he has been relatively quiescent as to the Miers nomination.  He has written just two op-eds on Miers, both of which focus on the importance of getting more information about her and neither of which take her on on the basis of qualifications; and he has offered some stray quotes to newspapers.  But he hasn't done much more than that, and it seems to me he was much more vocal about Roberts.  And where is the letter to the Senate on her lack of distinction as a nominee?

Perhaps I am being unfair to Chemerinsky, and commenters are free to say so.  (Let me add that I value his treatises and other scholarly work, and that my students are especially grateful for his treatise.)  Perhaps he thinks ideology is the only touchstone for a Court nominee, and that quality isn't that important a qualification.  But I would have expected him -- and other usual-suspect liberal law professors who frequently appear in the op-ed pages -- to be more vocal about Miers, and specifically about whether her record strongly qualifies her for the Court.  Am I right in thinking that their relative silence suggests they are taking the same strategic (not principled) tack as the Senate Democrats and cognate interest groups, with or without coordination with those folks?         

Posted by Paul Horwitz on October 21, 2005 at 01:57 PM in Law and Politics | Permalink

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» What Should Democrats Do Regarding Harriet Miers? from Concurring Opinions
Paul Horwitz at PrawfsBlawg raises the difficult strategic dilemma for Democrats on the Harriet Miers nomination: Therein lies the Democrats' dilemma -- actually, a double dilemma. 1) They do not want to oppose Miers loudly if they think her replacemen... [Read More]

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» What Should Democrats Do Regarding Harriet Miers? from Concurring Opinions
Paul Horwitz at PrawfsBlawg raises the difficult strategic dilemma for Democrats on the Harriet Miers nomination: Therein lies the Democrats' dilemma -- actually, a double dilemma. 1) They do not want to oppose Miers loudly if they think her replacemen... [Read More]

Tracked on Oct 23, 2005 8:59:39 PM

Comments

Chemerinsky gave a talk here (U. Florida Law School) for the American Constitution Society a week ago. The speech occurred, obviously, before Miers's initial written responses to the Senate Judiciary Committee's questionnaire. I thought he gave reasoned and restrained criticism of the nomination. That is, when he began to talk about her, he recognized and distanced himself from any hint that his concerns related to gender or the relative non-eliteness of her education and practice. But he was certainly critical and skeptical, and without going into any great specifc detail (it was just an hour-long speech, putatively about the legacy of the Rehnquist Court), he made clear the kinds of questions he thought the Senate, and especially Democrats, should ask the nominee. And he seemed perfectly ready to condemn her if she gave the responses that she's likely to give if she actually wants to get confirmed by this Senate.

In short, he wasn't nearly so adamant as you might prefer, Paul, but he set himself up for becoming adamant once he knows more about her.

Posted by: Mark Fenster | Oct 21, 2005 2:27:26 PM

"He has written just two op-eds on Miers, both of which focus on the importance of getting more information about her and neither of which take her on on the basis of qualifications; and he has offered some stray quotes to newspapers."

Have we gotten so accustomed to instant analysis and the instant gratification of punditry that we are now suspicious of Chemerinsky(and others) because he simply says he wants and needs more information?

There was alot of information to assess Roberts before his hearings, there is far less with Miers.In fact, many of the Senators were suaded to some degree by Robert's performance during the hearings. Miers should be afforded the same opportunity...to rise or fall...based on her performance as well.

I see no evidence presented that Chemerinsky's lack of of further commentary is linked to Democratic political strategy.This seems to me a desperate attempt to generate controversy based on perceived reputation and pure speculation.

Posted by: truevandyke | Oct 21, 2005 2:33:53 PM

Mark, I appreciate your comment. As I said, I'm more than open to additional information. It does seem to me that your description suggests he wasn't willing to talk about her qualifications that much, outside of the disclaimer concerning the status of a person's school (with which I fully agree, and I've said as much), and this was ultimately the point of my post -- that it seems to me that the usual commentators have said less about Miers than about Roberts, and that they haven't addressed her lack of distinction, which seems to me an important issue for those who are concerned with the institutional quality and prestige of the Court as an institution. But I do think you are right and welcome to moderate my treatment of Chemerinsky as an exemplar. As for whether I have engaged in a "desperate attempt to generate controversy," as the second comment suggests, I must respectfully disagree. But wait till you see my post on whether Lost has already jumped the shark this season.

Posted by: Paul Horwitz | Oct 21, 2005 2:38:55 PM

Ok, "desperate" may have been too strong. How about "disappointing"?

I eagerly await the Lost commentary. I do not think it has "jumped the shark", but it does seem to be at least traveling down the same path as Twin Peaks.

Posted by: truevandyke | Oct 21, 2005 2:43:56 PM

Paul,
I very much appreciate your comments. I have been waiting DESPERATELY for the response from the legal acadamy--whether it be from the left, right, or both (as in the letter supporting McConnell's 10th Cir nomination). It strikes me that the Miers nomination was a direct attack on the academy--specifically on the idea that the capacity to reason and deliberate (and a history of doing both) is relevant to the job of being a justice--and yet the academy has barely let out a whimper in response. (Exceptions would be Geof Stone's piece in the Chicago Tribune, perhaps Bork's piece in the WSJ, although he's hardly an academic anymore, and, in the alternative, Jeffrey Rosen's tepid endorsement in TNR).
Where is outrage? Where is the petition to oppose her? Even yesterday, in Cass Sunstein's wry response to Miers's reference to the "proportional representation requirement of the fourteenth amendment," (see http://www.washingtonpost.com/wp-dyn/content/article/2005/10/19/AR2005101902402_pf.html) I got more of a sense of resignation than revolt.
I don't think we've reached Heideggerian proportions quite yet, but doesn't this constitute an abdication of duty?

Dan Levine

Posted by: dan levine | Oct 21, 2005 3:32:16 PM

A law professor, of course, puts fealty to principle above loyalty to party. (Right? Right?)

Hrm. The categories of "principle" and "loyalty to party" are not mutually exclusive. We are not talking about the Yankees vs. Red Sox here. There are real differences between the parties on issues that will affect the lives of American citizens.

More specifically, if a law professor genuinely belives that having Harriet Miers on the Court would be better for women, gays and poor people than a a Right-Wing Superstar to be named later, then I don't see why it's "unprincipled" for that professor not to oppose to Miers' nomination. ("I don't care if it means a thousand women die in back-alley abortions, damn it! My heart tells me that a nominee to the Supreme Court should have a more impressive publication record!")

Posted by: alkali | Oct 21, 2005 3:42:26 PM

Is it really an open question whether Erwin Chemerinsky is a partisan hack?

Posted by: Niels Jackson | Oct 21, 2005 4:18:10 PM

I think alkali's comment is an interesting one. I am not sure I agree that principle and party loyalty are not mutually exclusive. I certainly agree that one may identify with a party because it best represents and works toward the achievement of those policies that one concludes, on a principled basis, are best. But it must be rare indeed to find a person for whom a party comports with all of one's principles. It seems to me, depending on one's principles, that at some point one must put principle above party.

Your other point also is interesting and worthy of discussion. What you say is fair enough on its own terms, but it assumes that caring about the quality of a nominee, and about the quality of the Court as an institution, is itself not a guiding principle for the legal academic in the position you describe. But I would have assumed most legal academics, and especially con law professors, do adopt some version of that principle. If so, and if they conclude a nominee does not meet that standard, then at that point one makes a pragmatic decision to weight one principle above another. Again, fair enough, though I do think such a decision is more pragmatic than principled. More than that, though -- one also makes the pragmatic decision to silence oneself rather than speak out on the quality issue, or even speak out in a measured way about the conflict between principles that arises where a mediocre nominee is also a better ideological bet than other potential nominees. (I grant that a number of assumptions go into this description, but I don't think they're unreasonable assumptions.) On a pragmatic level, I can understand this. But I am intuitively disturbed by the idea that legal academics, who do indeed have the luxury of principle, might hold their tongues on this basis. (Again, this may not describe Prof. Chemerinsky, and in personifying him as an example of my concern, I do not mean to make this all about him.)

Posted by: Paul Horwitz | Oct 21, 2005 4:46:39 PM

I am not sure I agree that principle and party loyalty are not mutually exclusive.

It depends on what you mean by party loyalty, I suppose. For most people, the statement "I am a Democrat" or "I am a Republican" is probably something like 80% agreement on principles and 20% go-team-go-ism and pragmatic compromise. If by "party loyalty" you mean just that 20%, they are mutually exclusive; if you mean the whole thing, they are.

... I would have assumed most legal academics, and especially con law professors, do adopt some version of that principle [i.e., that nominees should meet a particular standard of qualification]. If so, and if they conclude a nominee does not meet that standard, then at that point one makes a pragmatic decision to weight one principle above another. Again, fair enough, though I do think such a decision is more pragmatic than principled.

I agree with all that except insofar as the last bit might imply that there is a "principled" way of resolving that conflict other than a pragmatic weighting. I don't see what that might be.

... I am intuitively disturbed by the idea that legal academics, who do indeed have the luxury of principle, might hold their tongues on this basis.

I'm not sure what "the luxury of principle" means here. If you mean the protection of tenure, all that means is that a certain kind of self-interest doesn't enter into the weighting you identified above. The only other sense I can think of in which academics might have that "luxury" is the sense that they can speak their minds in confidence that no one will pay any attention to what they say, which I don't believe and assume you don't either.

If, on the other hand, academics should expect that their comments might influence a public debate, I don't see how they have the luxury of speaking out without giving thought to how speaking out might affect the outcome of that debate.

Posted by: alkali | Oct 21, 2005 5:42:51 PM

Clarification: at the very end of my first paragraph, read "they aren't."

Posted by: alkali | Oct 21, 2005 5:45:04 PM

It might be suggested that the Chereminsky / Dershowitz / Tribe types are primarily interested in defending their turf, and are thus delighted with the Miers nomination, because she poses no intellectual threat to them. Her nomination will not defend conservative jurisprudential views with which they disagree, because she has shown no indication that she even knows, still less understands, as much as the basic tenets of a conservative judicial philosophy. If she makes it to the Court, she is at worst an empty robe for the two-man conservative bloc (no threat) and at best, an empty robe for the liberal majority (no threat). If she is withdrawn, the next nominee will be considerably more dangerous to liberal jurisprudence, and they are thus happy to not look a gift horse in its mouth,

Posted by: Simon | Oct 21, 2005 9:39:19 PM

For what it is worth, I have been barking a lot about Miers over at Sentencing Law & Policy:
http://sentencing.typepad.com/sentencing_law_and_policy/2005/10/the_best_argume.html

Of course, a lot of my barking has been a complaint about what others (right, left, MSM) are not barking about.

Posted by: Doug B. | Oct 22, 2005 12:00:24 AM

"...but it assumes that caring about the quality of a nominee, and about the quality of the Court as an institution, is itself not a guiding principle for the legal academic in the position you describe. "


The author speaks of quality here, but doesn't bother to define the word for readers.If one publishes is one automatically ...of quality? Does quality come from the school name on a degree?

After Bush v Gore I think we can dispense with the quaint notion that fealty to principle is the coin of the realm in jurisprudence.

Posted by: sebastianguy99 | Oct 22, 2005 12:20:33 AM

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