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.

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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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