A rebuttal to Prof. Barnett's "Cronyism" op-ed re the Miers nomination

I very strongly disagree with Prof. Randy Barnett's op-ed in tomorrow's Wall Street Journal  (already available online). On the Volokh Conspiracy blog (where he's also entertaining comments to the op-ed), Prof. Barnett explained earlier today that he "wrote [the WSJ] essay over the past few hours without reading anything on the blogosphere, so it reflects [his] wholly unvarnished opinion." I give him kudos for writing quickly, but not well. This is far less coherent than his usual tight and polished writing.

We read, for example, these two paragraphs back to back:

Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.

Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.

I'm sorry, but that's worse than just overextending one's sports metaphors. That's downright internally inconsistent. I'll grant you that the Supreme Court is more important; but if she's "well qualified" for a seat on the court of appeals, then it's a huge leap to "unqualified" — a word Prof. Barnett doesn't quite get to, but obviously approaches — for the Supreme Court. And with due respect to Prof. Barnett and other academics, being a law professor ain't exactly the school of "hard knocks" either, and neither is prior judicial experience the sole (or even the best) way to learn that which "hard knocks" teaches.

Indeed, Prof. Barnett fairly drips with law professor-type elitism when he writes this statement:

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate.

Not to put a fine point on it: that's just nonsense. It would be the very, very rare practitioner — as opposed to law professor or, perhaps, public interest group lawyer — who's spent his or her career polishing up a "well-considered 'judicial philosophy.'" Indeed, one of the ways John G. Roberts, Jr.'s career as a practicing lawyer was so unusual — so different from what 99.9 percent of practicing lawyers' careers have been like — was that his private practice dealt almost entirely with appellate litigation, and most of that at the Supreme Court level. Prof. Barnett himself has argued at least one celebrated case in the Supreme Court, and perhaps he's had other experience practicing law outside the classroom. In any event, it's surprising, but also very disappointing and frankly a bit insulting, that he seems to think lawyers who are neither judges nor professors must be somewhat retarded.

If you restrict Supreme Court nominations to those individuals who've spent their lives living in that rarefied atmosphere, pondering constitutional minefields to the exclusion of everything else, then you're going to end up with a Supreme Court whose members are out of touch both with America and with nuts and bolts legal practice. You're going to end up with a Court full of prima donnas who can't "just" concur, but instead feel compelled to write countless separate opinions. You'll often have no majority opinion, but instead special concurrences, partial concurrences, separate dissents, and partial concurrences only in Part III-D-6(f) but not Part III-D-6(g) of another's minority opinion. You'll get a Court that on the same day finds a display of the Ten Commandments constitutional in Texas and unconstitutional in Kentucky. You'll get a Court that takes up an incredibly important issue like redistricting, one that's splintered the Court in previous years, and then just leaves things more splintered when it's done. You'll get a Court that flip-flops within the space of a few years on issues involving capital punishment and what the government may or may not do in an attempt to promote morality. And you'll never see another unanimous Court like the one that produced Brown v. Board of Education.

You'll get a Court, in other words, with all the failings that this Court has had for the last several years.

My blogospheric friend Prof. Stephen Bainbridge, who's another early critic of the Miers nomination, quoted today the famous and still very funny comment by Sen. Roman Hruska on Nixon nominee Harold Carswell: "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?" Well, I'm not arguing in favor of mediocre nominees. What I am arguing is that a nominee is not mediocre, or unfit, or likely to be a disaster on the Court, simply because he or she comes from a career spent mostly in private practice! We in private practice tend to spend less time worrying about the meaning of life and the universe and how that guides and informs the evolution of substantive due process under the Constitution. But that's exactly the kind of — forgive, again, my bluntness — metaphysical crap you get in Supreme Court opinions written by lawyers who've spent most of their careers as academics.

Prof. Barnett asks: "Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president?" To which I answer: Absolutely and emphatically, I do indeed doubt that! I challenge that assertion, and I fortunately have something more than sneering innuendo to refute it. By historical American standards, any Supreme Court nominee would be considered qualified based on a successful career in a sophisticated private business law practice — at the head of a large, first-rate law firm in a large city of a large state — that has also included leadership positions in the local, state, and national bar, plus a substantial tenure in public service as counsel to her home state's governor and then the President of the United States. Ms. Miers' overall qualifications compare quite favorably to those Sandra Day O'Connor had when she was nominated. Indeed, her qualifications are very much in the mold of, and quite arguably superior to, those of the late Justice Lewis F. Powell, Jr., who had led a comparable law firm (Hunton & Williams) to Ms. Miers' and had been President of the American Bar Association (in an era in which it was still an apolitical service organization instead of just another special interest pleader). Only someone uninformed or unfairly dismissive of excellence in the private practice of law could ask a question like Prof. Barnett's, even rhetorically.

But the saddest and most troubling part of the early, reflexive opposition to the Miers nomination is from people who, like Prof. Barnett, are muttering darkly (and necessarily vaguely) that this nomination is comparable to LBJ's nomination of Abe Fortas to become Chief Justice in 1968. The Fortas comparison is badly, badly misleading — a genuine cheap shot. Abe Fortas' nomination to become Chief Justice was doomed if for no reason other than it came at the end of LBJ's term. That he was LBJ's longtime close friend and adviser, however, is not what leaves the lingering smell; many, many other Justices have been close friends of Presidents. Rather, the lingering smell comes from the fact that Abe Fortas had routinely engaged in ethically questionable conduct — including possible financial corruption — that made him unfit to be a judge at any level. He'd sometimes used his undeniable skills and intellect in the service of wicked causes, among them securing Lyndon Johnson's senate election through vote fraud. He'd maintained relationships that involved extra-judicial compensation even while he was an Associate Justice. Unless and until Prof. Barnett is able to make and back up comparable allegations against Harriet Miers, then he owes her an apology for even mentioning her name in the same paragraph with Abe Fortas'. It's an unjustified smear, and it's beneath his dignity (and certainly beneath hers).

Moreover, the classic meaning of "cronyism" is selecting someone for a position that they're incapable of earning and totally unfit for on their own. If all Harriet Miers had to commend her, as Prof. Barnett claims, is that she's been George W. Bush's lawyer, and if we could find no reason in her record, other than Dubya's friendship, even for her to have held that position, then a charge of "cronyism" might be appropriate. But Harriet Miers was already an accomplished and respected lawyer and leader before she ever represented George W. Bush. She's had accomplishments aplenty that are entirely unrelated to him. She well merited, based on demonstrated ability, the positions through which they became better and better acquainted. By every report, she's discharged those positions competently and effectively, rather than just skating by on the basis of the President's favor. Prof. Barnett and the others who are crying "Cronyism!" are using friendship and trust that's developed through superb service with the President as a disqualifying factor, irrespective of the nominee's other credentials and experience. That's a mistake. Alexander Hamilton was not against friendship, he was against incompetence and incompetents being promoted due to friendship. Hamilton himself was both George Washington's friend and his military and then political protégé, the "son Washington never had" and also his most effective cabinet secretary.

It certainly seems to me that Prof. Barnett is using the facts that Ms. Miers comes from a practicing lawyer's background, and that she's become a trusted friend while serving capably as Counsel for the Governor of Texas and the President of the United States, as his sole bases for arguing against her nomination. I believe the nicest term for that is "snotty." It's an unbecoming attitude, and this essay is just not up to his usual high standards of reasoning and writing. There may be persuasive reasons for opposing the Miers nomination, but I don't think these reasons are them.