The word from Chicago

Cross posted at Political Arguments.

For folks outside the Windy city, here's the opinion of two University of Chicago professors on the Miers nomination. Geoffrey R. Stone—former Dean of the U of C Law School—points out that Miers is grossly underqualified for the position when measured against her potential brethren currently sitting on the Court.

Nominees to the Supreme Court are supposed to be individuals with serious records of achievement in the law. Consider those who have been confirmed over the last quarter century:

• John Roberts, Harvard Law School, law clerk to Justice William Rehnquist, among the finest appellate advocates in the nation.


• Stephen Breyer, law clerk to Justice Arthur Goldberg, distinguished scholar of constitutional and administrative law at Harvard Law School, judge of the U.S. Court of Appeals for 15 years.


• Ruth Bader Ginsburg, professor at Columbia Law School, one of the nation's leading Supreme Court advocates, judge of the U.S. Court of Appeals for 13 years.


• Clarence Thomas, Yale Law School, chairman of U.S. Equal Employment Opportunity Commission, judge of the U.S. Court of Appeals.


• David Souter, Rhodes scholar, Harvard Law School, justice of the New Hampshire Supreme Court, judge of the U.S. Court of Appeals.


• Anthony Kennedy, Harvard Law School, professor of constitutional law for 23 years, judge of the U.S. Court of Appeals for 13 years.


• Antonin Scalia, influential scholar of constitutional and administrative law at the University of Chicago, judge of the U.S. Court of Appeals for five years.
  
• Sandra Day O'Connor, Stanford Law School, majority leader of the Arizona Senate, state court judge for six years.

I wholeheartedly agree. Some Levellers will argue against using academic or professional credentials as proxies for judicial talent. I would ask them for an alternative. There is no one route to the High Bench, but whatever route is taken should reflect excellence, both for the effect it has on the work of the Justices and for the respect it inspires in the legal profession and the citizenry.

Take legal education. Top law schools are able to draw the best legal scholars and a very excellent pool of students. The atmosphere created at these law schools is of markedly hig quality, even if, arguendo its superiority was the result of institutional injustice. The solution then would be to repair those injustices, not to disregard excelence in scholarship. It should come as no surprise that the current Justices of the Court hail from Harvard, Yale, Stanford, Columbia, and Northwestern, or that many of them taught at those same schools. It is something to be welcomed and cherished.

The same goes for judicial experience, whether on the bench or as a law clerk at a top Appelate Court. The challenge faced by the cases that reach the highest stages in the most contentious Circuits—or, of course, the Supreme Court itself—fosters an important set of skills that we should value in a Justice. Now, I admit, these are not the only useful skills that a Justice should have. Experience in the legislature (O'Connor) or at high levels of executive administration (Thomas) are extremely helpful to have in a court that is constantly called upon to pass judgment on legislative and executive actions. But the Dallas City Council? The Texas Lottery Commission? Not quite the same, is it?

On a different note, Gerald Rosenberg—who is in my department and for whose Intoduction to Constitutional Law I TA'ed a few years ago—argues that the whole debate about Miers's views on substantive issues misses the point.

The real debate is not about Miers' views on abortion, executive power or states rights. It is about the role of the Supreme Court in American society. Should it strike down acts of Congress with which five of its members disagree? Should it interpret ambiguous constitutional language in opposition to congressional majorities? Should it attempt to resolve controversial political and moral debates to save the country from turmoil?

Miers' views on particular substantive issues only matter to the extent that these questions are answered in the affirmative.

I think Rosenberg is right on the empirical point that the Court has not been the diving force that activists on both sides of the aisle take it to be. But is has intervened in many controversies and its influence, however derivative and reactive, is an element of public deliberation. So, given that the Court has acted in politics, however improperly, is it sufficient that it simply abstain from future action? Are there not soime decisions that should be overturned, if they were illegitimately decided? Marbury may be hard to get rid of—assuming one would want to (I, for one have nothing against it)—but some others can surely be revisited (e.g. Wickard v. Filburn). Won't charges of judicial activism and illegitimate meddlesomeness be raised against such backtracking?

None of this means Rosenberg's wrong. It only means that the catch-22 of judicial review may be insurmountable, or may take a considerably longer time to be set right.