October 14, 2005
Voted Off the Island

By Ronald A. Cass

Ever since President George W. Bush nominated White House Counsel Harriet Miers to the Supreme Court, a curious game has been played. Initial reaction was cautious and reserved – from Democrats. Republicans, libertarians, conservatives, allies of the President, on the other hand, went immediately into attack mode. Some wrote thoughtful, if highly critical, pieces. Many simply vented their frustration that the President hadn’t made the choice they wanted. By the end of a week, not only had conservatives voted Ms. Miers off the island, but President Bush and any defender of Miers as well.

The rush to judgment on Miers from the President’s allies has been striking. Not only has it been immediate and widespread, it also has been – in many cases – extraordinarily immoderate. No subtle weighing of Miers’ positive and negative attributes for the job; no indulging the possibility that someone who doesn’t fit the model so many of us have in mind for Supreme Court appointments could possibly make a good justice. And no willingness to suspend judgment, to see if the President indeed has done what he promised and given us a justice who is thoughtful, committed to a law-bound and modest view of judging, and committed to the vision of constitutional law the President consistently has endorsed.

Miers would not have been my choice, given the high value I place on public writing and scholarly engagement and the respect I have for so many appellate judges who have proven their ability to do exactly the work I believe must be done by Supreme Court justices. But I am not so presumptuous as to think that this is all that could qualify someone for the Court.

Miers doesn’t exactly come to the nomination as someone without any qualifications, skills, or experience. She’s been a highly successful commercial litigator, the head of a major law firm, President of the Texas State Bar, a leader of the American Bar Association, an elected official, lawyer to the President of the United States and White House Counsel. She has a broader background in business law than anyone who has come to the Court in three decades. Miers also has worked side by side with the President, who knows her far better than any of the critics and who says she shares his views and values, including his commitment to law-bound judging. She helped the President select other judges, many of whom were attacked by Democrats for so clearly espousing the very views that conservative critics cry are sacrificed in this nomination.

There can be reasonable disagreement about what most qualifies someone for the Court. There can be respectful differences about what we should value in this nomination, about what deficiencies it might have, and about what to do. Yet, so many conservatives voicing upset with the President’s choice are neither open to the possibility that the President has made a good choice or that defenders of the nomination could possibly be thoughtful about it.

Miers’ few defenders have been subject to highly personal attacks from fellow conservatives. I’m not talking polite disagreement, as when a conservative colleague called my defense of Miers lame. That’s part of the ordinary give and take over public decisions. But fellow conservatives have, in far more colorful language, made it clear that Miers’ defenders simply aren’t welcome on our island.

In the last few days, I have received hate mail, outright threats, and attacks on my competence to assess judicial nominations or substantive law. I have been told that I “should have been aborted” and that I should “shut the hell up” because I – and others like me – just don’t know what I’m talking about.

Actually, I do. A graduate of the University of Chicago Law School, I have been a lawyer for more than 30 years, a law professor for 28 of those, a presidential appointee (confirmed by the Senate), author or co-author of more than 100 works (including 10 books), a law school dean for 14 years, and President of the American Law Deans Association. I have been a consultant and advisor to corporations, the Department of Justice, international organizations, and major law firms on both corporate and public law issues. I am a member of the American Law Institute, Fellow of the American Bar Foundation, past Chair of the ABA Administrative Law Section, and past Delegate to the ABA House of Delegates. I also am a proud member of the Federalist Society, chairman of one of its practice groups, and active in the Society’s leadership.

In short, I am no “ignorant shill” for the administration. I do not speak for the President, for any organization I belong to, or for anyone other than myself. But I do speak as one who has substantial experience and has devoted a lifetime to the law, to educating people in the law, and to writing, speaking, and thinking about the law.

Personal credentials do not establish the correctness of any argument. But the conservatives declaring who should survive shouldn’t indulge the conceit that they alone have the background, investment in the law, or intellect to assess nominees. Many seem to have surprisingly short memories.

The conservative critique of Miers rests primarily on two legs. One is based on a singular, a-historic vision of Supreme Court appointments. We didn’t use to require appointees to the Court to be judges, academicians, or legal scholars. Louis Brandeis, Robert Jackson, Earl Warren, Byron White, William Rehnquist, Lewis Powell – none of them came to the Court with those qualifications. Each of these justices left a mark on the law. Although the current Court has three justices who were established scholars before taking seats on the bench, appointment of scholars to the Court has been the exception, not the rule. It is fair to want nominees who have the breadth of knowledge, interest in constitutional issues, and writing skills that scholarly publication can convey. But scholarship has never been the sine qua non of appointment.

The other major line of attack on Miers comes from conservatives who are demanding proof that Miers shares their beliefs. But conservatives repeatedly have asserted that judges shouldn’t make commitments in advance to particular positions. We can ask that they commit to a vision of judging, a way of interpreting the law, an understanding of constitutional interpretation. We shouldn’t ask their positions on particular matters that are likely to come before the Court. That was our answer to liberals like Chuck Schumer who want judicial confirmation hearings to focus on ideology. It should be our answer to ourselves.

The Senate Judiciary Committee will hold hearings soon. Those hearings have a limited role – to serve as a check against the appointment of unqualified individuals nominated out of personal attachment or political pressure. Critics of the nomination charge that this description is apt here. The way to test that is not, as some have urged, to give Miers a “law school exam,” asking detailed questions on specific topics. It is not to pinpoint her ideology. Instead, it is to discuss her approach to interpreting the Constitution, her understanding of the broad contours of the law, her view of the judge’s role.

If Miers’ performance at those hearings is not that of a person who seems ready to interpret the Constitution thoughtfully, she will lose my support. If she comes across as an experienced, intelligent lawyer committed to law-bound judging, then she should gain public support from conservatives now criticizing her nomination – though the damage to our party at that point might be irreparable.

Harriet Miers deserves a chance to prove herself. I am willing to give her that chance. And my conservative colleagues, even those who are deeply skeptical now, shouldn’t vote any of us off the island just yet.

Honorable Ronald A. Cass, President of Cass & Associates, PC, a legal consultancy in Great Falls, VA, is Dean Emeritus of Boston University School of Law and Co-Chairman of the Committee for Justice. He was Vice-Chairman of the US International Trade Commission, and author of “The Rule of Law in America” (Johns Hopkins Press).

Ronald A. Cass

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