Now, Ah'm No Fancy Big City Lawyuh…

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Since the initial backlash to the announcement that the distinctly undistinguished Harriet Miers was the president's pick for the Supreme Court, I'd been waiting for the populist, anti-intellectual conservative counternarrative to pop up, and lo and behold, it's emerged full force over the last 24 hours.

I first spotted it over at Volokh Conspiracy yesterday morning in a missive from attorney Reginald Brown, who writes:

[George Will] suggests Miers shouldn't be approved because she hasn't shown a "talent" for "constitutional reasoning" honed through years of "intense interest" and practice. Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution's text, structure and history and who call balls and strikes[….]

Will's final argument is that Miers is an affirmative action quota pick. Underlying this theme is a subtle snobbery that conservatives should dismiss out of hand. One need not go to Harvard or Yale Law or be a member of the right Inn of Court to serve with distinction. Miers' career suggests she is plenty smart and obviously hard working.

The kids at National Review are reporting getting similar accusations of elitist snobbery. Writing at TechCentralStation today, lawyer Doug Kern delivers another brief for more simple folk on SCOTUS.

Now, as an NYU alum in an Ivy-choked city, I've as little incentive as anyone to lend support to an exaggerated emphasis on pedigree. But there's a weird tension between conservatives' meritocratic tendencies—their just annoyance at the gold-stars-for-everyone-aren't-we-all-special mindset that elevates self-esteem over achievement—and this kind of "What, you think yer better'n me?" that takes umbrage at the suggestion that making law review at Harvard might indicate a higher level of qualification than doing the same at Southern Methodist.

Obviously, though, nobody thinks where Harriet Miers or John Roberts picked up their JDs is remotely as important as what they've been up to since—this law school business is just being used as an emotionally resonant synecdoche for two very different levels of career achievement well beyond law school. We can call the idea that we needn't focus on the kinds of credentials conservatives gushed up when Roberts' resume was on the table the Hruska argument: Mediocrities deserve a shot at serving on the highest court in the land too.

There is a certain logic to this, from a libertarian or conservative perspective: We like to think that the Constitution is intelligible to ordinary people, and if intellectual candlepower is mainly going to be used to find some tortuous justification for regarding it as a public use when the state gives Pfizer your house, so much the better for dumb literalism. On the other hand, to the extent that this argument is rooted in some sort of salt-of-the-earth argument about being in touch with the real-world consequences of law, of sympathizing with the property owner in that situation, that seems to describe precisely how we don't want judges deciding cases: It reeks of the approach conservatives justly mocked when Sen. Diane Feinstein (D-Calif.) kept insisting on knowing how John Roberts felt as a person about various issues.

Moreover, much as cases like Kelo might make us wish for judges more inclined to stick to a straightforward reading of the Constitution's text and eyeball the big picture rather than getting mired in the details of precedent, the Court is typically dealing with genuinely hard cases—cases where, for example, differenty appelate courts (presumably staffed by relatively qualified people themselves) have been come to different conclusions about what the Constituion or rules of statutory construction require. Navigating between the Establishment Clause Scylla and the Free Exercise Clause Charybdis is a tricky endeavor, and for all the flak it catches, the three-pronged Lemon Test is as good a rubric as I've seen for doing that. If the argument against brainy judges is that they come up with stuff like that, well, I can't count it as that big a strike.

Perhaps more important than any of that, though, is the idea of legitimacy. The court has no armies: Its power as a check on legislative authority is utterly dependent on general respect for its rulings to prevent executives from saying, Andrew Jackson style, "they have made their decision, now let them enforce it." Presidents surely have ample discretion in their appointements, but that vital perception of legitimacy is dealt a serious blow if it becomes widely assumed that the court is no more than a collection of minimally-qualified stooges selected for their expected obsequiousness. If the only filter on nominees is a willingness to let the president lock people up by fiat, how can we expect people to regard Supreme Court rulings as anything more than a cheap rubber stamp on executive whims?

NEXT: The Perils of Cross-Party Dating

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  1. Damn, Julian, write a book.

    People don’t like to read 26 paragraph treatises on HitandRun (at least I don’t).

  2. Taken out of context, I’m reminded of some lyrics by Le Tigre:

    Life is but a compromise
    and I can see it in yr eyes that
    nothing scares you like a real idea.
    But no man, it’s ok,
    you didn’t waste my day

    Cuz I already knew
    that when I’m with you
    Mediocrity rules, man.
    Mediocrity rules.

  3. Taken out of context, I’m reminded of some lyrics by Le Tigre:

    Life is but a compromise
    and I can see it in yr eyes that
    nothing scares you like a real idea.
    But no man, it’s ok,
    you didn’t waste my day

    Cuz I already knew
    that when I’m with you
    Mediocrity rules, man.
    Mediocrity rules.

  4. Hey, you did the “below the fold” thing, like Kos!

    Good on ya!

  5. “… emotionally resonant synecdoche …”

    How many years have you been waiting to drop that little gem into casual conversation?

  6. It is simply a sad state of affairs where the Supreme Court poses such a central role in our concerns. There can be little doubt that the Constitution created a federal government of few enumerated powers, one which sought to preserve liberty through Separation of Powers and federalism.

    The abandonment of that government through expansion of the Commerce Clause, liberal constuction of the Necessary and Proper clause, and the adoption of the modern administrative state (discarding separation of powers) puts us in the judicial quagmire where we find ourselves – with a federal government of fairly unlimited and concentrated powers, free to trample on liberties, except where they might be lurking about in the manifold possible components of Fourteenth Amendment Liberty.

    This whole debate stinks, and it is the stink of a Constitution that is not “living”, but quite dead.

  7. Well said (and echoed here).

    It’s hard to get around two things: None of the people saying now that an underwhelming, ordinary person is exactly what we need on the Court was saying that a week ago, and it’s not as if we’re talking about elevating John Henry, lawd he was a steel drivin’ man, to the Court; Miers is a very powerful lawyer who’s being made out to be a commoner like the unwashed who are complaining about her nomination.

    You hear occasionally that Miers may well turn out to be just like Scalia, because the caricature of Scalia is such that that would be easy, just loudly and indignantly vote against anything fun. But nobody’s saying she’d turn out to be just like Thomas, and there’s a reason for that. Thomas has a credible, admirable judicial philosophy. The President did, during two campaigns, promise Justices like both.

  8. “Conservative meritocratic tendencies” is yet another myth that needs to be buried, along with “conservative fiscal responsibility”.

  9. Smacky, Barfy, Shecky… where are the other four commenter dwarves?

  10. i’m just a simple caveman lawyer… your modern way of life frightens and confuses me…

  11. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution’s text, structure and history and who call balls and strikes[….]

    Right, and the same fucking president says that pot grown in California and smoked in California in accordance with California law and not for distribution outside the states’ boundaries is “interstate commerce.”

    Fucking shitbag apologists.

  12. why would anyone want someone to turn out like scalia? he’s never seen a throbbing cock of federal power he didn’t want to worship.

    also, i’m reminded of some lyrics by le tigre as well:

    we suck
    we’re very bad
    our music is very awful
    and it isn’t funny
    and it sounds like poop
    and it’s not empowering

    you might as well listen to northern state (x4)

  13. >we suck
    >we’re very bad
    >our music is very awful
    >and it isn’t funny
    >and it sounds like poop
    >and it’s not empowering

    good one!

  14. Right, and the same fucking president says that pot grown in California and smoked in California in accordance with California law and not for distribution outside the states’ boundaries is “interstate commerce.”

    Well the President didn’t exactly decide that, now did he.

    And the post was only nine paragraphs.

  15. Right, and the same fucking president says that pot grown in California and smoked in California in accordance with California law and not for distribution outside the states’ boundaries is “interstate commerce.”

    Bitch, bitch, bitch.

    I think we agree that Wickard was wrongly decided. But what about the task of writing principled standards in its place.

    Let’s say some ingenue says easy:
    if the product isn’t sold across state lines then it is not interstate commerce.

    Oh, great. then companies restructure so that each sales transaction occurs within a single state. Now “interstate commerce” power is effectively written out of the law.

    Now, you may like that result, but it does not seem like faithful Constitutional interpretation to me.

    So the challenge is to come up with some standards that truly distinguish interstate commerce from intrastate. You know ahead of time that any standards you attempt, will be perverted and subverted by the business world to escape (Constitutionally valid) regulation. Coming to a correct set of non-subvertable standards here is not routine law work. It is not the job for some business person. It is an intensely legal and jurisprudential dispute.

    Now one may question whether Roberts has the political will to rewrite interstate commerce standards into something better, but I think he has the intellect and his work shows that.

    On the other hand, with Miers, I question whether she has the will as well as the ability. That’s bad. Doing this type of jurisprudential work goes beyond what they teach you in law school — you have to think about things on a deep level. Not every lawyer qualifies. IMO, the overwhelming majority don’t, Harriet Miers probably included.

  16. If we have Presidents who choose to steamroller SCOTUS as Andrew Jackson and Thomas Jefferson did, there’s not much we can do about it.
    And the inclinations of a President (and the mass hysteria of the hoi-polloi) have little to do with the qualifications of the nine Judges.

  17. “Oh, great. then companies restructure so that each sales transaction occurs within a single state. Now “interstate commerce” power is effectively written out of the law.”

    Uh, how does the product get across state lines? Once it does, and is then sold in the new state by the guy who carried it across, it’s still “interstate commerce”.

    Sometimes bending over backwards to make something fit rational reality simply shows it doesn’t.

  18. Uh, how does the product get across state lines? Once it does, and is then sold in the new state by the guy who carried it across, it’s still “interstate commerce”.

    Okay, so final assembly of product takes place at the point of sale. Thats where they put the shrink wrap on. Since the product is assembled and sold in the same state, it is no longer interstate commerce by your standard.

    Or: parent company sets up 52 subsidiaries: one in each state, Puerto Rico and Guam. Parent company gifts the products to its subsidiaries, who then sell product in their respective home prefectures.

    Your move, lottery commisar.

  19. “Okay, so final assembly of product takes place at the point of sale. Thats where they put the shrink wrap on. Since the product is assembled and sold in the same state, it is no longer interstate commerce by your standard.”

    Anything shipped across state lines is part of interstate commerce. Thus, if the product requires parts which are made in another state, the product can be regulated. At least, it’s not unreasonable that the current (I believe as you probably do overly broad) interpretation of interstate commerce would apply.

    What’s so hard to understand about this?

  20. Oh, the current understanding of interstate commerce would clearly apply. I think Dave is trying to show why it’s hard to write a clear standard that limits the extent of commerce clause power while still allowing clearly constitutional regulations. Not that it shouldn’t be done, but that it would require real thought and ability to establish a clear bright-line standard.

  21. Well the President didn’t exactly decide that, now did he.

    Who, pray tell, do you think the “Gonzales” in “Gonzales v. Raich” worked for?

    I think we agree that Wickard was wrongly decided. But what about the task of writing principled standards in its place.

    It wasn’t a comment on the decision – it was a comment on the decision by the President to pursue medical marijuana prosecutions under the guise of regulating interstate commerce in the first place, and a way of calling his “originalist” credentials into question by recent historical reference. You got my drift.

    Now one may question whether Roberts has the political will to rewrite interstate commerce standards into something better, but I think he has the intellect and his work shows that.

    Agreed. The quotes from yesterday’s Oregon assisted suicide case don’t give me great hope that he’ll make a splash, but he also might be a whole lot different in chambers and during the opinion writing process.

    On the other hand, with Miers, I question whether she has the will as well as the ability. That’s bad. Doing this type of jurisprudential work goes beyond what they teach you in law school — you have to think about things on a deep level. Not every lawyer qualifies. IMO, the overwhelming majority don’t, Harriet Miers probably included.

    Agreed.

  22. Anything shipped across state lines is part of interstate commerce. Thus, if the product requires parts which are made in another state, the product can be regulated.

    Well, one objection is that my kid’s lemonade stand get regulated because the lemon juice comes from over state lines. Or if the farmer in Wickard v. Fillburn had added water from the mighty Colorado to his pigs’ mash, then he is back in the net, too. We’re nowhere.

    Another objection is that is that when a product is made in a state and shipped all over the world, it makes little economic sense to say that they can be regulated in evry state except one. For instance, under your scheme, pharmaceuticals can’t be federally regulated in Delaware (or wherever) because they are made there. Kind of defats the purpose of uniform, national regulations. Now maybe you want to take down the FDA in one fell swoop, but I think we are in non-starter territory.

    Your move, Scratch’N’Win Czar.

  23. On second thought, my kid’s business might be exempted under prong 3 of the Lemon test.

    TYIBHAW

  24. “Conservative meritocratic tendencies” is yet another myth

    here’s to that.

    the philosophical conflict on the conservative end, to the extent that it ever existed, between individual merit and blanket populism was definitively ended when they elected a drooling savant to the presidency not in spite of but *because* of malapropisms and invented words.

  25. While I wholeheartedly agree that Ms. Miers is grossly underqualified for an appointment to SCOTUS, I am a bit uncomfortable with the number of folks who have lately taken to referring to her as a “mediocrity.” She is a mediocre Supreme Court nominee, to be sure, but anyone who makes partner at a reputable firm, much less managing partner at a 400-attorney firm, has had a truly outstanding career. Add to that her professional service and government service, and it is simply poor manners to call Harriet Miers a mediocrity, or even to imply that interpreting most constitutional issues is beyond her intellectual keen. Rather, she is underqualified relative to the available pool of candidates, which is a different notion entirely.

    In any meritocratic process, we tend to resort to proxy measures when determining underlying competence, the most important of which is prior experience/success in the relevant subject matter. An illustrative argument by analogy: Jack N., captain of the United States golf team in the President’s Cup competition, needs to select a player to round out his roster.

    Option #1 — Joe M., Super Bowl winning quarterback and superb natural athlete, is a scratch golfer and regularly plays in pro-am tournaments with Jack N. for fun. Joe M. obviously has a great deal of athletic ability, as shown by his hall of fame caliber NFL career, so there’s reason to believe that, with time and dedication, he could become a competent PGA professional golfer.

    Option #2 — Joe Schmoe, rising PGA star, winner of several tour events, including a number of top ten finishes in grand slam tournaments and former NCAA champion.

    Which golfer should Jack N. choose? Joe Schmoe is the obvious choice (unless Jack gets his advice from George Bush.)

  26. “Your move, Scratch’N’Win Czar.”

    In case you didn’t get it, Oh Patronizing One, I was saying that interstate commerce regulation by bozo judges such as Miers will presumably be, which I think goes too far today, can’t be easily restricted through your proposed changes; NOT that I ‘like’ said regulation.

  27. I am not sure what that last comment means, but if it means we are agreed that it is quite difficult to write good legal standards for determining what “interstate commerce” is, then I think we have accomplished something here.

    We all no Wickard is wrong, but making it right is no job for crony hacks or successful businesspeople.

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