Thursday, October 06, 2005

Don't talk to me about qualifications.

Jonathan Turley on the subject of qualifications for the Supreme Court:
Like the president, most senators speak of "qualifications" as if the term is self-defining or obvious. Yet, after more than 200 years, neither the Senate nor law professors have agreed on what constitutes a "qualification" for the nation's highest court. Indeed, looking over the past 157 nominations (and 42 unsuccessful nominations since 1789), there is little consensus on what constitutes a truly qualified person to sit on the court.
Then he proceeds to tell us what he thinks the qualifications should be:
the question is whether a lawyer must have an outstanding background to justify one of nine seats on the highest court. Miers spent decades in the law without making a substantive contribution to the development of it.
I think that's an invitation to judicial activism. If you want to be a Supreme Court justice how you "contribut[e] to the development" of the law? Doesn't advising a president on the exercise of his powers, including when and when not to assert powers that others claim you don't have, count? Or does only writing and commenting extensively on trends in the law count? Apparently if you're a hammer, everything looks like a nail, and to a law professor, contributing to the development of the law is writing law review articles and giving representation to cases you want to advocate. So, must you be an advocate of certain legal theories to be a judge of them? I think not. I think a trial lawyer probably understands the impact of a Supreme Court decision on the process of the law better than those who only consider them in the rarified atmosphere of appellate arguments and law reviews. That perspective would be quite valuable on the Supreme Court, not to mention the effect of decisions on those responsible for applying them in the Executive Branch. My point is that there is no branch of the law or area of practice that doesn't expose a lawyer to issues of interpretation.

I also don't think that Harriet Miers' experience and intellect has been shown to be inferior to anybody. She's worked with lawyers at the highest levels there are and has earned their respect. She's certainly had a career, experience and achievements demonstrating high qualifications. But only one kind of achievement seems to matter to the punditocracy seems to be the kind that it specializes in: writing, forensics, endless wrangling, insulting, sneering and other rhetorical exercises.

Any decent lawyer can do this stuff, but it takes one with real character to ignore the squabbling, cut through the irrelevancies and address cases in the proper order. The court has created the atmosphere of division and bitterness we live in by rushing in where they should have feared to tread. Only someone who understands that it is restraint, rather than clever arguments and endless debates, that keeps justice on a straight course and an even keel.

Cass Sunstein points out that appointing more judges with the same ideology would not result in more consensus on the court. I suppose he's right, but if we had more judges who refused to think they are supposed to resolve every dispute whether it is justiciable or not, who didn't think it was for them to interpret the Constitution by inferring things that it doesn't say and who didn't feel a need to instruct the states, the Congress and the President, I think there would be fewer deep political divisions in the nation. The key to pluralism is free debate. Supreme Court decisions essentially say, "Stop arguing!" and if asked why, "Because we said so!" That kind of thing doesn't solve issues like abortion. It intensifies them.


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