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October 10, 2005

More on Miers's qualifications

Being White House Counsel is a pretty big deal. Although there are some hacks and some crooks on this list, you'd still have to say that serving as White House Counsel would stand as a major qualification for a federal judgeship.

But, for some reason, about which we can speculate, Harriet Miers's supporters are not making much of her current position. To the extent her supporters have been speaking of her qualifications, they have been devoting much of their time to attacking her opponents as elitists. On the other hand, one of her big supporters is Bill Dyer, a/k/a Beldar, a Texas trial lawyer who has been ably defending her at his blog. To Beldar, Miers's role in running a big law firm is of great importance in determining whether she's qualified. In addition, Beldar has run a Westlaw search to find published opinions in which Miers's name appears. The result: "A search on Ms. Miers' name, run in a Westlaw database containing both state and federal court reported decisions from Texas, pulls up 19 separate cases dating back to 1974 in which she's appeared among counsel of record."

Of course, the trouble when you try to quantify -- especially with competitive lawyers -- is that other people try to measure themselves against your candidate. (I'm sure Jeff Goldstein would make a more graphic analogy.) For example, Baseball Crank, who's a lawyer with a big firm in New York, found this: "even granting that state trial courts rarely publish opinions, at least in Texas, [Miers's Westlaw result] does seem a bit thin to me for 30+ years of practice (the same search for me would turn up 14 opinions, and I've only been in practice for 9 years)."

And I could do the same thing, and whaddaya know, I did it. True I'm a government lawyer, and we tend to have more courtroom time than private practitioners, but it really isn't close. My Westlaw total is 60 opinions (cut down to 50 if you use really restrictive criteria) in 18 years of litigation practice, including about 6 in private practice. I spent a few more years not doing litigation. In any event, I can tell you now, and I'll tell you again, that I'm not qualified to sit on the Supreme Court. But Beldar's search results for Miers don't impress me.

I want to make this clear: Being a lawyer in private practice can qualify the right person for the Supreme Court. Ted Olson, even before he was Solicitor General, was highly qualified. Chuck Cooper is highly qualified. With more time I could come up with a whole bunch of lawyers in private practice who truly understand constitutional law -- and are clearly in the mold of Scalia and Thomas.

True, as the New York Times helpfully points out, much of the Supreme Court's docket is business-oriented. But the point is that to be qualified for the Supreme Court based on a career in private practice, you need a deep and intense familiarity with constitutional law. Contrary to Hugh Hewitt's notion, constitutional law isn't easy, though it can be learned over a sufficient period. As Orin Kerr puts it: "To be fair, I agree with Hugh that Supreme Court Justices don't need to be academic super stars. But they do need to be reasonably self-aware. And my guess is that self-awareness tends to come most often from the experience of testing and evaluating arguments again and again, whether as a judge or in some other forum." Con Law's not like some esoteric priestly material, but you do have to have thought through some important concepts that go to the essence of judging, and if you haven't, no one should throw you into the game with eight Michael Jordans.

Now, getting past this huge amount of verbiage, here's my main concern with a nominee who's being promoted based on her time in private practice. A lawyer in private practice who's an unknown quantity on constitutional issues is going to lean center-left. The reason is simple: The legal profession -- and remember we're talking here about a woman who was head of the Dallas Bar Association and the State Bar of Texas, and also a leader in the American Bar Association -- is a bastion of petty politics, lockstep thinking, and political correctness. (This is true of other professions and it's true of big business, too.) Which is why the phrase "merit selection" has always sent chills up my spine. Merit selection usually refers to a process of selecting state court judges outside of electoral politics. Typically, panels of lawyers send a small number of names to a governor, and the governor picks one to appoint. I've always preferred appointed judges to elected ones (a topic for another time), but merit selection inevitably incorporates nearly the same petty politics, lockstep thinking, and political correctness that characterize the organized bar. If I had a choice between allowing a politically accountable governor to pick judges on his own and giving the choice over to a committee of bar leaders, I'd choose the former without hesitation.

The bottom line to me is that leadership in the organized bar is a major negative. Maybe Miers did a great job in building her law firm, but that isn't enough. If she did a great job in building her law firm and if she were actually familiar with constitutional law and if we had some tangible indication that she thought about constitutional law in a principled, originalist way, then I would enthusiastically credit her for her time in private practice. As it is, she's just a lawyer who got involved in bar politics, and that can do us no good.