Qualifications: SOC vs. Harriet Miers

The reason I'm opposed to confirming Harriet Miers to the Supreme Court is that she's unqualified. But how does she stack up to Sandra Day O'Connor, the woman she's replacing? Consider SOC's bio prior to joining the court:

Deputy county attorney, San Mateo, California, 1952-1953
Civil attorney, Quartermaster Market Center, Frankfurt, Germany, 1954-1957
Private practice, Phoenix, Arizona, 1957-1965
Assistant state attorney general, Arizona, 1965-1969
Arizona state senator, 1969-1975 (Majority leader, 1973-1974)
Judge, Superior Court of Arizona, Maricopa County, 1975-1979
Judge, Arizona State Court of Appeals, 1979-1981

It's true that SOC was a state court judge when she was nominated, whereas Harriet Miers has no judicial experience, but we all know that "state court judges are icky." And if nothing else, they face different types of questions than a Federal Appellate Judge or Supreme Court Justice. Although SOC's experience in the Arizona state legislature is somewhat impressive (including a stint as party leader), is it really better than Harriet Miers's administration of a large Texas firm and time heading the Texas Bar association? How much does it really take to be a state legislator? But maybe her time in the legislative branch gave SOC a better insight into statutory interpretation. Maybe. Also, there's the fact that Miers went to the #52 law school, SMU, while O'Connor graduated 3rd in her class from Stanford. Edge to O'Connor... maybe a big one depending on how you look at it. But your law school certainly isn't everything. So while by my analysis SOC edges out Harriet Miers, it's not a blowout.

And consider this quip from an article by Tom Wicker that appeared in the New York Times on Nov. 11, 1981:

[N]aming Sandra Day O'Connor to the Supreme Court was a classic example of affirmative action, since no one pretends she was the most qualified person available . . . it probably established a sexual quota for the high court.

The biggest difference I can spot is the number of other options the Presidents who nominated the two women had. During the election of 1980, Reagan had pledged to promote women to positions of power in the government, but when Potter Stewart's seat on the Supreme Court opened up he looked around, and there weren't a whole lot of women in the federal judiciary to choose from. Reagan began looking at state court judges instead, for a conservative female, and low and behold, there was SOC.

So while SOC wasn't the most qualified "person" Reagan could have picked, she was one of the most qualified women. On the other hand, George W. Bush had a number of highly "qualified" female candidates with judicial experience to choose from: Janice Brown, Edith Jones, Edith Clement, etc. Instead Bush chose Miers.

So perhaps what I'm suggesting is that affirmative action involves a sliding scale. If you want to appoint someone from an underrepresented group, you pick the best one of that group you can. By that measure, SOC was "qualified" at the time she was appointed. Harriet Miers certainly is not.

Update: On a related topic, Professor Bainbridge marshalls the evidence out there for why Harriet Miers will resemble SOC ideologically. Of course, if Bainbridge and Polipundit think SOC is really "a squishy liberal," that only shows how desperately we need a real liberal on the court to show the right what the word "liberal" really means.

Interesting Frankfurter Opinion

I ran across an interesting Frankfurter opinion the other day -- in John Ferren's recent biography of Justice Wiley Rutledge, Frankfurter doesn't come off looking all that great, especially in passages like this:

Frankfurter annoyed Black, Murphy, Douglas, and others with recurrent pedantry, condescension, and intracourt scheming. . . . Douglas and Frankfurter were ignoring each other. Frankfurter and Murphy exhibited mutual disdain.

But this concurrence makes Frankfurter seem a bit more human.

Lincoln Fed. Labor Union v. NW Iron & Metal Co., 335 U.S. 525 (1949)

[The court held that state laws prohibiting employers from denying employment to workers solely because the workers did not belong to unions did not violate the Constitution.]

MR. JUSTICE FRANKFURTER, concurring. . . .

The coming of the machine age tended to despoil human personality. It turned men and women into 'hands.' The industrial history of the early Nineteenth Century demonstrated the helplessness of the individual employee to achieve human dignity in a society so largely affected by technological advances. Hence the trade union made itself increasingly felt, not only as an indispensable weapon of self-defense on the part of workers but as an aid to the well-being of a society in which work is an expression of life and not merely the means of earning subsistence. But unionization encountered the shibboleths of a premachine age and these were reflected in juridical assumptions that survived the facts on which they were based. Adam Smith was treated as though his generalizations had been imparted to him on Sinai and not as a thinker who addressed himself to the elimination of restrictions which had become fetters upon initiative and enterprise in his day. Basic human rights expressed by the constitutional conception of 'liberty' were equated with theories of laissez faire. The result was that economic views of confined validity were treated by lawyers and judges as though the Framers had enshrined them in the Constitution. . . .


A union is no more than a medium through which individuals are able to act together; union power was begotten of individual helplessness. But that power can come into being only when, and continue to exist only so long as, individual aims are seen to be shared in common with the other members of the group. There is a natural emphasis, however, on what is shared and a resulting tendency to subordinate the inconsistent interests and impulses of individuals. From this, it is an easy transition to thinking of the union as an entity having rights and purposes of its own. An ardent supporter of trade unions who is also no less a disinterested student of society has pointed out that: 'As soon as we personify the idea, whether it is a country or a church, a trade union or an employers' association, we obscure individual responsibility by transferring emotional loyalties to a fictitious creation which then acts upon us psychologically as an obstruction, especially in times of crisis, to the critical exercise of a reasoned judgment.' Laski, Morris Cohen's Approach to Legal Philosophy, 15 U. Chi. L. Rev. 575, 581 (1948). . . .


It is not true that the 'success of a labor union' necessarily means a 'perfect monopoly'. The union, in order to attain and preserve for its members industrial liberty, must be strong and stable. It need not include every member of the trade. Indeed, it is desirable for both the employer and the union that it should not. Absolute power leads to excesses and to weakness: Neither our character nor our intelligence can long bear the strain of unrestricted power. The union attains success when it reaches the ideal condition, and the ideal condition for a union is to be strong and stable, and yet to have in the trade outside its own ranks an appreciable number of men who are non-unionist. In any free community the diversity of character, of beliefs, of taste--indeed mere selfishness--will insure such a supply, if the enjoyment of this privilege of individualism is protected by law. Such a nucleus of unorganized labor will check oppression by the union as the union checks oppression by the employer. . . .


Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a court debilitates popular democratic government. Most laws dealing with economic and social problems are matters of trial and error. That which before trial appears to be demonstrably bad may belie prophecy in actual operation. It may not prove good, but it may prove innocuous. But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests--the people. If the proponents of union-security agreements have confidence in the arguments addressed to the Court in their 'economic brief,' they should address those arguments to the electorate. Its endorsement would be a vindication that the mandate of this Court could never give. . . .

In the day-to-day working of our democracy it is vital that the power of the non-democratic organ of our Government be exercised with rigorous self-restraint. Because the powers exercised by this Court are inherently oligarchic, Jefferson all of his life thought of the Court as 'an irresponsible body' and 'independent of the nation itself.' The Court is not saved from being oligarchic because it professes to act in the service of humane ends. As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements, and such misconceptions are not subject to legitimate displacement by the will of the people except at too slow a pace. Judges appointed for life whose decisions run counter to prevailing opinion cannot be voted out of office and supplanted by men of views more consonant with it. They are even farther removed from democratic pressures by the fact that their deliberations are in secret and remain beyond disclosure either by periodic reports or by such a modern device for securing responsibility to the electorate as the 'press conference.' But a democracy need not rely on the courts to save it from its own unwisdom. If it is alert--and without alertness by the people there can be no enduring democracy--unwise or unfair legislation can readily be removed from the statute books. It is by such vigilance over its representatives that democracy proves itself.

Our right to pass on the validity of legislation is now too much part of our constitutional system to be brought into question. But the implications of that right and the conditions for its exercise must constantly be kept in mind and vigorously observed. Because the Court is without power to shape measures for dealing with the problems of society but has merely the power of negation over measures shaped by others, the indispensable judicial requisite is intellectual humility, and such humility presupposes complete disinterestedness. And so, in the end, it is right that the Court should be indifferent to public temper and popular wishes. Mr. Dooley's 'th' Supreme Coort follows th' iliction returns' expressed the wit of cynicism, not the demand of principle. A court which yields to the popular will thereby licenses itself to practice despotism, for there can be no assurance that it will not on another occasion indulge its own will. Courts can fulfill their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable. Matters of policy, however, are by definition matters which demand the resolution of conflicts of value, and the elements of conflicting values are largely imponderable. Assessment of their competing worth involves differences of feeling; it is also an exercise in prophecy. Obviously the proper forum for mediating a clash of feelings and rendering a prophetic judgment is the body chosen for those purposes by the people. Its functions can be assumed by this Court only in disregard of the historic limits of the Constitution.

There are a number of interesting points in this opinion:

(1) The dangerousness of group-think: once we start rationalizing our decisions because of membership in a particular group (read, religion) we deflect personal responsibility for those decisions from ourselves.


(2) Democracy presupposes informed constituents. Can we really say that people in this country are adequately informed today? People condemn courts for judicial activism because it undercuts the will of the people, but why should we exalt that will in cases where it is uninformed or lacks a rational basis?

(3) Say a court does step in -- you get the result you want, but at a price: endorsement of an idea by the electorate is a vindication a judicial opinion cannot give. That has intuitive appeal… I guess in a perfect world, you want everyone to agree with you. But wasn’t Brown, an opinion Frankfurter joined a vindication of minority rights? What do we say to people whose rights we allow to be squashed while we wait for a majority of this country to come around?

(4) Interesting observation that the court only has veto power over legislation rather than the power to propose alternatives. I don’t know if that is completely true. For example, in the case of abortion many legislatures restrict things right up to the Constitutional boundary the Court establishes. So while technically the Court’s work consists of striking laws down, it ultimately winds up molding the substance of social policy because it picks the boundary. Ditto with the death penalty. Perhaps Frankfurter would argue that this shows courts shouldn’t have been in the abortion business in the first place.

(5) Interesting that Frankfurter’s bottom line appears to be -- this court was designed to be oligarchic, and it should act in that manner sparingly, but when it does act in that manner it should embrace the role rather than deferring to the public.

Harriet Miers: View from the Left?

Professor Bainbridge cogently sums up why conservatives should fight the Harriet Miers nomination. But why should Democrats oppose the nomination? Virtually everyone on the left must agree that Harriet Miers is far better than what we might have expected after the President promised to nominate candidates in the mold of Justices Scalia and Thomas during the 2004 Campaign. Harry Reid's initial reaction to the nomination was "I like Harriet Miers" Charles Schumer said, "it could have been a lot worse," and while some conservative senators have expressed doubts about the nomination, Barbara Mikulski went out of her way to lend her support to Miers yesterday. And it sure is nice to see conservatives like Sen. Jeff Sessions squirm. But do Democrats actually believe Harriet Miers is qualified, or are they just happy that she's not a complete ideological disaster? Don't members of both parties have a responsibility to insist on some basic level of quality control, regardless of politics?

I guess it shouldn't be surprising that politicans play politics, and that Democrats are eager to support someone who could be the next David Souter. But how can we confirm a nominee who doesn't have anyone credible arguing that she's the best "something" for the job? But can any Democrat who voted against John Roberts vote for Harriet Miers with a straight face? And can any law professor who signed the letter opposing Roberts not be eager to sign a letter opposing Harriet Miers? Note that a letter opposing Harriet Miers could address a real concern -- how utterly unqualified she is -- rather than just criticizing mainstream conservative views, and telling us that John Roberts is bad, rather than showing us.

I'm going to be very interested to see how the left responds to Harriet Miers in the days and weeks ahead. So far all I know about her is that she reads John Grisham novels and one of her favorite justices was Warren Burger. Not so impressive...

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