I do not want a "great" Supreme Court Justice. I want a "great" Supreme Court. No single justice decides a case before the Court, the Court as a whole does.
Though I tend conservative, my "great" Supreme Court is not necessarily conservative. A great Supreme Court is one that has an open mind -- one that sees each case not merely as the stuff to be pressed into another brick in a long running ideological argument, but as an individual question with its own facts and peculiarities of law. A great Supreme Court is one that has intellectual integrity -- its decisions are defensible as logical honest outgrowths of the facts and law in the case. A great Supreme Court is one that decides matters clearly and forthrightly and thus provides guidance for lawyers and inferior courts.
What do I mean by an open mind and intellectual integrity? In one of my cases the concurring opinion starts off :
"I join the opinion of the Court, but I add these comments to emphasize the narrow scope of today's decision."
and ends with:
".....the Court has been presented with another of those cases - "few in number...."
Those words are a tribute to the then existing Court -- the four judges who concurred ideologically opposed the result. Unwillingly, but honestly, they nonetheless reached it. I do not think that such opportunity for success is as open in today's Court.
In my opinion the present Court has two great failings. I suspect these are the result of the present near equal ideological split.
First, it cheats. It fails to discuss or consider facts that are inconvenient to its decisions. It silently ignores or redecides the trial court's findings of fact. This corrodes justice.
Second, it lacks clarity. Perhaps in order to attract a swing vote in the middle, its majority opinions are often vague, muddled, and internally contradictory. It is all too fond of various forms of "balancing" tests. Most disputes are settled because the lawyers and the parties have a fair idea of what the result would be if they litigated. Losing that certainty exacts a serious and real cost in uncertainty. It also gives increasing scope for unjust causes of outcome -- which trial judge was drawn, where the case was brought, what the decision of the U.S. Attorney was. Uncertainty does serious harm to justice.
I know very little about Harriet Miers. What I have read, however, suggests that she would bring several things to the court. First, she seems a detail person with a strong desire for to grasp all the facts before deciding. Good for her. This court badly needs someone who could say at conference, "But what about the district court's finding at paragraph 113?" or would put in red ink on a circulated draft, "Contradicted by testimony at page 456 of the record". Attention to detail can both force the court to a greater intellectual rigor and to a more open mind.
Miers background suggests to me that she will also recognize that certainty, by itself, has a value to law that may be greater than ideological victory. The present court lacks this apprecition.
My two favorite modern justices, John Marshall Harlan II, and Hugo Black, were not themselves great justices. But both made the courts they were on better courts. Harlan's high standards forced intellectual honesty from his brethren. Black forced them to come down from the towers of reasoning and look at what the Constitution said. He also taught that a straight reading of the Constitution was not only a shield for conservatism, but a sword for personal liberty and civil equality.
As to qualifications : Harlan was a patrician that would meet every requirement of even the snootiest law school professor. Black was an ill educated Roosevelt political crony of sordid and despicable background. Both became superb choices. They made the court better.
I think Miers will make this court better.
Bump!
I'm not a lawyer or a scholar.
I just want someone on the court who'll pound sand up the noses of the justices who thought Kelo was good law.
Maybe Harriet is that person.
Great essay from the perspective of an experienced jurist. Thank you.
This will never do. You're putting things into perspective, using reality as a context. You're supposed to be alarmist, screeching "deception!" and "Bush has let us down."
This appointment is like putting star of the local softball team into a the starting lineup of a major league baseball team.
All we have is what little we know. What know isn't comforting. She's supports affirmative action and Title IX. She's organized conferences at SMU featuring radical feminists like Gloria Steinem.
Why in the world would she be a better pick than the many articulate conservative originalist judges that have openly spoken out and articulated the benefits of originalism and who have proven track records?
You may be right about Miers.
But like you, possibly, whatever I'm doing
I like thinking I'm going to win.
I must admit, it's a very well-presented argument. So, what you're basically saying is why clamor for a 65 yard drive when 55 yards is all you need for a touchdown? :)
its decisions are defensible as logical honest outgrowths of the facts and law in the case
and ain't worth a happy dam if they are not congruent with the Constitution.
Thanks for your opinion....
Excellent essay!
Good commentary, but I can't possibly credit it with any merit until I know where you got your law degree.
You make some excellent, cogent and well-reasoned arguments. What I know of Harriet Miers would fit on the head of a pin and leav a lot of room left over for the Lord;s Prayer and the Gettysburga Address. What President Bush Knows of Harriet Miers would, likely, fill volumes.
But, I am not suggesting that we go with the President's nomination solely because she is the President's nominee. I think that, rather than oppose her because little is known of her, let's gover her the opportunity to speak for herself and see what she says. See how she handles the hardballs being lined up by Senators on either side of the aisle opposed to her nomination.
The present courst has deteriorated into a miserable one whose intellectuals have allowed themselves to engage in puffery by expanding the circle of existing case law and Constitution to consider foreign law in their decisions. This, perhaps, is a failing of having a court that is loaded with "superior intellcts".
Like you, I believe that most Americans want a Supreme Court that is fair, reasoned and follows the requirements of the Constitution in reaching their decisions.
To be sure, the decisions of this court on Kelo and CFR have left many of us astonished at the arrogance and disdain the justices have for the law, the Constitution and individual rights.
I agree. She is not a 'giant' in her own mind and so is willing to learn from people like Scalia.
Thank you so much for sharing your insights!
(shining fingernails)(with patronizing glare).. Well Duuuuh...
A Court that can do what the lawis, not what it ought to be. That is Intellectual Integrity at its best...not like Ruth B. Ginsberg who looks around the world for comparable law in other lands rather than stay with American Constitutional Law. Perhaps if confirmed, Miers will keep that liberal odious chance to legislate from the bench in check!
Your post will probably dampen the fires a bit, and that's a good thing. Thank you.
For those who want to dig instead of feeling helpless you don't know enough...
Mier's documents for your perusal (Act as if you don't see the NYT section and go in neutral):
http://www.law.umich.edu/library/news/topics/miers/miersindex.htm#article
Thank you for this post. I have not made up my mind yet. I want to see the hearings first before I decide if she is right or wrong for the court. I don't trust the press to tell me anything, or for that fact the pundits. I want to see for myself before I can make a just decision.