Posted on 10/06/2005 9:47:24 PM PDT by freedomdefender
I think it's terrific that President George W. Bush has nominated Harriet Miers to replace Sandra Day O'Connor on the Supreme Court of the United States. As the first woman to serve on the nation's highest court, Justice O'Connor has been a tremendous role model for women, especially young professional women. If President Bush hadn't named a woman to succeed Justice O'Connor, that would have left Justice Ruth Bader Ginsburg as the only woman on the nine-person bench.
Women deserve more than token representation on the Supreme Court and President Bush should be commended for recognizing this fact. Kudos, too, ought to go to Justice O'Connor herself, and First Lady Laura Bush, who both encouraged the nomination of a woman.
Importantly, though, gender isn't the only diversity consideration that makes Ms. Miers such an excellent choice for the high Court. Her nomination also is welcome relief from the recent practice of appointing only candidates with prior judicial experience who graduated from elite law schools.
The Court's history plainly shows that to be a great justice one need not possess either of these attributes. Yet many commenting on Miers's nomination are acting as if these are set in stone--prerequisites for service on the Court. They need a history lesson.
Many of the Best Supreme Court Justices Didn't Have Prior Judicial Experience
Granted, it's true that every member of the current Roberts Court previously had served as a judge before being appointed to the U.S. Supreme Court:
Chief Justice John G. Roberts Jr. sat on the U.S. Court of Appeals for the District of Columbia Circuit, as did Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg; Justice John Paul Stevens served on the U.S. Court of Appeals for the Seventh Circuit; Justice Anthony Kennedy sat on the U.S. Court of Appeals for the Ninth Circuit; and Justice David H. Souter served on the Superior Court of New Hampshire, the Supreme Court of New Hampshire, and the U.S. Court of Appeals for the First Circuit--where Justice Stephen G. Breyer also sat. (Justice O'Connor was a state court judge for six years prior to being appointed to the Supreme Court.)
But let's be frank: None of these justices are regarded as "great" by the vast majority of students of the Supreme Court. (Of course, it's too early to tell with Roberts--this is his first week on the job--and I personally regard both Scalia and Thomas very highly, albeit for different reasons.)
This shouldn't be surprising. After all, the Supreme Court isn't simply an appellate court of last resort, it's a political institution. Justice Felix Frankfurter put it well in a 1957 law review article: "One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero."
Frankfurter, who was himself appointed to the Court without prior judicial experience, continued: "The significance of the greatest among the justices who had such experience, Holmes and Cardozo, derived not from that judicial experience but from the fact that they were Holmes and Cardozo. They were thinkers, and more particularly, legal philosophers."
Among the "great" Supreme Court justices who didn't have prior judicial experience were venerated Marbury v. Madison author John Marshall, the prolific Joseph Story, and other bright lights. They included Louis D. Brandeis, originator of the famously well-researched "Brandeis brief," Harlan Fiske Stone, William O. Douglas, Felix Frankfurter, and Earl Warren.
Brandeis and Frankfurter are credited with crafting landmark First Amendment decisions; Warren is responsible for setting the tone for the entire era that bears his name. So much for the claim that non-judges can't succeed on the Court . . .
In fact, of the justices appearing on all, or most, of the lists of "great" justices only Oliver W. Holmes Jr. and Benjamin N. Cardozo had significant prior judicial experience. (Hugo L. Black had served for a short time as a judge on the police court of Birmingham, Alabama, but I suspect that Miers's critics wouldn't think much of such service--even though Black is regarded as one of the truly great justices.)
Many Outstanding Supreme Court Justices Didn't Graduate from Elite Law Schools
What about the other criticism of Miers--that she "only" went to Southern Methodist University School of Law? Again, history undermines the claim that this should count against her.
Chief Justice Roberts and Justices Scalia, Kennedy, Souter, and Breyer graduated from Harvard Law School. Justice Stevens graduated from Northwestern University School of Law, Justice Thomas from Yale Law School, and Justice Ginsburg from Columbia University School of Law. All of these are elite law schools. (Justice O'Connor graduated from Stanford Law School, another elite law school.) But, again, none of these justices are considered "great."
As was the case with prior judicial experience, graduating from an elite law school seemingly had become a necessary condition in recent years for appointment to the Supreme Court.
This wasn't always the case. Indeed, just as many of the best Supreme Court justices didn't have prior judicial experience, so too did some fail to graduate from the Harvards and Yales of the world.
For example, Hugo Black graduated from the University of Alabama School of Law, while modern "near great" John Marshall Harlan II graduated from New York Law School--not to be confused with elite New York University School of Law--and Robert H. Jackson didn't graduate from law school at all.
It's also worth noting that Thurgood Marshall graduated from Howard, not Harvard, and Lewis F. Powell Jr.--the swing vote prior to Justice O'Connor's appointment to the Court--graduated from Washington and Lee.
Requiring justices to be graduates of Ivy League schools has other problems, too. It privileges alumni legacies. (At Yale, for instance, alumni children enjoy a considerable boost in the admissions process.) It also favors those who disregard regional loyalties, family ties, and possible local political aspirations. In addition, few elite schools offer anything like reasonable tuition--and those that do, like the University of California's Boalt Hall and the University of Virginia (where I went), often have lengthy residency requirements for in-state tuition.
How does favoring wealthy careerists--often with alumni parents--lead to "greatness"? Those who advocate "Ivy or bust" must answer that question.
Miers's Qualifications Are More Than Sufficient for the Supreme Court
Senator Roman L. Hruska, President Richard M. Nixon's floor manager for the failed nomination of Harold G. Carswell to the Supreme Court, famously remarked: "Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."
I'm not articulating a twenty-first century version of Senator Hruska's ridiculous argument. Rather, I'm applauding President Bush for recognizing that a person can be qualified for a seat on the highest court in the land without prior judicial experience and without a degree from an elite law school.
Of course, many in the legal elite disagree. For example, law professor Jonathan R. Turley opined on the Today show immediately after Miers was nominated by President Bush that Miers is an "amazingly bad pick . . . she doesn't have the resume for the job." Professor Turley went on to add that Abe Fortas, one of Lyndon B. Johnson's lawyers prior to being nominated to the Court by President Johnson, didn't have prior judicial experience, "but he had taught at Yale Law School."
It's this sort of elitist mind-set that President Bush should be commended for attempting to break. Different perspectives are essential for any healthy institution, as Thurgood Marshall proved so well when he served on the Supreme Court. (Chief Justice William H. Rehnquist thought so, too.) The Roberts Court can't help but benefit from Harriet Miers's unique experiences: her legal education at Southern Methodist University, her managing partnership in a major law firm, her presidency of both local and state bar associations, her service in local and state government, and her years in the Bush White House, including as White House Counsel.
As we say at Ohio Northern University, ex diversitate vires. Out of diversity, strength.
Thank you for this post. Food for thought for anyone, let alone the Donner Party. ;)
My point EXACTLY!!! Not on this site!!
It does my heart good when I read another poster's comments that show that the poster has an open-mind. I find it inspiring after reading so many people exposing their closed minds. Thanks for that. :)
Oh yes indeed, it would be wonderful if someone could come up with a list such as that. I'm betting that someone will. And when that "someone" posts such a list, I'm sure there will STILL be excuses as to why that shouldn't matter.
This is totally unrelated to my feelings of unease over Harriet Miers, and I believe similar feelings of many here on FR. My feelings are: Harriet Miers just might not be conservative enough for my Republican, conservative stance. I could care less that she has never been a judge. I aslo could care less about her Alma Mater. Rather, I feel that a non-prior judge is preferable, as well as a non-Ivy League grad. I am particularly happy that she is a Christian.
However, I am concerned that a person who has never married, and reached the age of 50, may not understand life as most Americans have lived it. Janet Reno comes to mind.
This article from Scott Gerber never adresses the relative liberal/ Conservative stance of MISS Miers, maybe because he dosen't have a clue- or DOES he?
That's the only kind of judge who should sit on that court.
Are you saying a person who remains single cannot fulfill her oath of office on the USSC?
Oh boy, so this liberal author likes Bush's choice of Miers.
Now I feel better.
Are you trying to put words in my mouth? You may go back to reread my concern, reproduced here for your benefit: I am concerned that a person who has never married, and reached the age of 50, may not understand life as most Americans have lived it. Janet Reno comes to mind. I also believe that I stated my concern was her political slant, specifically, Conservative or Liberal. That's all. I regret that I was unclear.
Yep. It is astounding how many "pundits" and columnists have taken that lazy soundbite of a defense and run with it. But even more disappointing is the number of people around here who apparently buy it. I sure don't give a crap about "Ivy League". All that means to me is Division II football.
Thanks.
Justice Byron White - Professional Football - Check.
Enjoyed your article. Thanks for posting them for us.
Something I've not seen mentioned hereabouts as a cause for concern is all the mounting pressure for Harriet Miers to talk. If this conservative snipping does not cool, she will be sitting before the Judiciary Committee under more pressure from unelected conservatives than from the usual Democratic committee Grand Inquisitors. How strange.
She dare not reveal her thoughts about those things she ought not talk about.
If she doesn't talk, the unhappy ones typical of posters here will have a cow.
Not an enviable position for the lady from Texas.
Janet Reno made the same choice, I believe (not sure), and while I do not condemn her for that, there are several other things that I do condemn her for. But, can anyone here or anywhere else assure me that Harriet is Conservative?
My guess is, the Bush people have "focus group tested" it---this "reverse snobbery" talking point---, as a kind of pseudo-populist "anti-elitist" rallying cry for the base. It's the only way they have to try to "sell" this embarrassing choice for a crucial Supreme Court seat of another Bush crony to the average Republican voter, the one they're depending on to turn out and vote November of next year.
I read where Ed Gillespie tried to use the bogus "elitism" defense at some conservative pow wow and nearly got his head bitten off.
It looks to me like she is going to face critical questioning from both sides. I think the SJ Committee as a whole will demand more specific answers from Miers than it did from Judge Roberts.
Has anyone here assured us she is not?
Hey, no problem. I was just axin. By the way, are you concerned that a justice who's been married all her life might not understand life as single people do?
Show some respect. She was the Counsel to the President and the first female President of the Texas Bar.
That puts things nicely in perspective.
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