October
7, 2005
Stop Whining – Right Choices and the Courts
By Ronald
A. Cass
To hear the howls
from conservative commentators following President Bush’s
nomination of Harriet Miers, you would think that Bush just sold
a seat on the Supreme Court to someone who’s a cross between
Ann Richards and Barney the White House pet. Half the critics
aren’t certain that Ms. Miers shares their views or will
vote the way they want on key issues. The other half complain
that Ms. Miers has no qualifications to be on the Court, having
been neither a judge nor a scholar. All of the critics assume
that it is more important that their preferences for appointment
to the Court be respected than that the President’s choice
be given presumptive weight.
The critics should
take a deep breath, count to ten, exhale – and stop whining.
Article
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Let’s start
with the qualifications issue. Having spent 30 years in academia,
including 14 years as a dean, I have strong respect for those
who have enough passion about legal concepts to write and speak
about them. I also have enormous respect for the work of judges,
and have many extraordinarily able friends on appellate courts
who would have topped my own list of best nominees for the Supreme
Court. Ms. Miers wasn’t my pick, and wouldn’t have
been if I had been choosing, because she doesn’t bring to
the Court demonstrated excellence in the skill set that I value
most for that position. But it’s not my decision to make,
and none of my own credentials gives me the right to tell the
President who should sit on the Court. They do, however, give
me standing to answer some of his critics.
First, it’s
wrong to say that Ms. Miers’ only qualification for the
court is friendship with the President. Of course, her close association
with the President put her in a position to be selected. Just
as, for example, Robert Jackson’s close association with
Franklin Roosevelt led to his appointment to the Court. Yet Miers
isn’t some childhood friend of the President’s who
was nominated out of friendship alone. She is a close associate
who has worked for and with the President for years, providing
legal services, advice, and counsel on policy and personnel matters
– someone the President has seen at work day in and day
out for years. She’s someone whose views and values the
President knows and whose legal skills have benefited him for
more than a decade.
Further, Miers brings
to the Court skills and experience that should not be dismissed
so blithely by the intelligentsia. In addition to the flashier
constitutional issues, the Supreme Court docket includes more
than a few cases affecting the business world. Many past decisions
sent the law dramatically off kilter in ways that undermine our
economy and sap our national wealth. Antitrust cases on tying
and cases at the intersection of intellectual property and competition
law, for example, have had enormous impact on American business.
Some have created difficulties for business, and indirectly for
consumers, because the justices simply didn’t understand
the practical implications of their decisions.
One case
before the Court this Term, Illinois Toolworks v. Independent
Ink, revisits an issue the Court mishandled in its 1947 International
Salt decision. Having someone who knows more about business
and understands better the practical impact of legal decisions
on businesses is valuable to have represented on the Court and
currently is in short supply. A modicum of practical judgment
also might avoid missteps like the Kelo decision from last term.
The other complaint
is that no one knows how Miers will decide issues. Right-wingers
want one of us. Left-wingers want one of them. And everyone wants
to know how a Justice Miers will decide important issues.
That complaint should
get short shrift. The fights over judicial nominees have become
so bitter because people have lost sight of the fact that we don’t
want judges to come to the bench with pre-commitments to particular
outcomes. We want judges who are committed to the rule of law,
not to political positions. Both left and right do a disservice
to judicial nominees and to the courts in endeavoring to get assurances
that nominees will make the decisions they want.
The rule of law makes
legal authorities, not the wishes of interest groups, paramount,
and insists that judges make decisions as cases come before them,
on the basis of briefs and arguments and consideration of particular
circumstances. Now-Chief Justice Roberts insisted on that during
his confirmation hearings, as has virtually every nominee before
him. That is what we should insist on today, no matter how much
we want a sneak preview of Justice Miers’ future votes.
Conservative critics
should be especially ashamed. Conservatives have been insisting
that judges should respect the Constitution and laws, secure that
this is enough to ask. Conservatives also have been aware that
the Constitution grants substantial discretion to the President
in making appointments. It is his call. We have elections to determine
who gets to make picks such as this, and President Bush –
to the delight of conservatives across the nation – won.
Now he has picked someone he knows well and believes shares his
vision of modest and law-bound judging, someone who helped steer
the President to select other judges in that mold. Judges like
John Roberts.
It’s time for
those who have made common cause with the President to give him
exactly the presumption that the Constitution does and political
alliance should – that he has the right to make appointments
of anyone who has the competence and temperament for the job.
The presumption is that he has done this.
Now it’s time
to stop whining before the next turn of the political wheel gives
conservatives something real to whine about.
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).
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