Miers, lesser-known aspects of the Constitution, and senatorial gotchas

Hoover Institution senior fellow and NRO contributor Peter Robinson today joined the off-key chorus of those singing shrill warnings about how SCOTUS nominee Harriet Miers is likely to be embarrassed in her confirmation hearings by noted constitutional law scholars like Slow Joe Biden (76th out of 85 in his class at Syracuse Law):

Item: On Brit Hume's show last night, Fred Barnes announced that Miers might have trouble during her hearings, but only if senators set out to embarrass her by asking her about "the third amendment," "the seventh amendment," and other, lesser-known aspects of the Constitution. Think about that for a moment. I mean, really. Just think about it. The third and seventh amendment are parts of the Bill of Rights. Asking Ms. Miers to demonstrate at least rudimentary knowledge of the Bill of Rights would represent an unfair and hostile action? This is what the Miers nomination is doing to us.

In response, NRO's Jonah ("Blessed as a Peacemaker") Goldberg — also the author of a very funny yet reflective column today that concludes "Take plenty of fluids, wait for the hearings, this fever will pass" — offers up this sly bon mot as a comment on just how important some of those "lesser-known amendments" really are:

I am a third amendment enthusiast. I've simply been waiting (and waiting, and waiting) to be single issue voter on the subject.

("If it would help, I could put on a uniform?" — The Couch)

And Mr. Robinson's amigo Hugh Hewitt takes him fondly but firmly to task:

As for the Third Amendment, or the Seventh, or the Ninth, or the dormant commerce clause or the damned 11th Amendment which is almost impossible to teach — the questions being compiled by the Cornerites have almost nothing to do with judging! Do they think John Roberts was prepared to discuss the quartering of troops in private homes?

Alas, this was a rare misstep by Brother Hugh, for our new Chief Justice did indeed discuss the Third Amendment in his confirmation hearings, and even brought up the subject himself:

SPECTER: ... Do you believe today that the right to privacy does exist in the Constitution?

ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.

It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.

It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.

It protects privacy in matters of conscience.

It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.

I remembered this exchange because it struck me at the time how this answer sounded, even reads, like how an opinion refusing to further extend Griswold v. Connecticut might begin. (Thus far; no farther.) But note, however, that our new Chief Justice didn't go into a discussion of Third Amendment precedents. There just aren't many.

John Roberts' grasp and sheer memory of Supreme Court precedent, and by no means limited to con law cases, is indeed almost superhuman. But he's never tried a case, never even taken a deposition. Does Mr. Robinson not recognize that there are vast areas of pretrial and trial procedure on which, unless they happen to have come up in one of his own appellate cases, our new Chief Justice might also have been stumped? Does Mr. Robinson think the President, the Senators, and the public are entirely incapable of appreciating different kinds of smarts?

But indeed, even when it comes to "lesser-known aspects" of the Constitution, Ms. Miers has something in her practice background that even Chief Justice Roberts can't claim — something that prompted me to fire off an email to Mr. Robinson that I reprint here (with slight alterations and with apologies to my regular readers who will recognize some of it as having been lifted in part from one of my earlier posts):

You're aware, I assume, that Harriet Miers — who you're busy suggesting has never read or retained the basic contents of the Constitution and its small handful of Amendments — litigated Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001), which is one of the only reported cases in the history of the Republic on the Twelfth Amendment to the United States Constitution.

You personally were intimately familiar with the Twelfth Amendment a month ago, were you not? Oh, of course you were! Among the legal elites here in Texas, we speak of little else, so I'm sure the same must be true of Cornerites and the good fellows of the Hoover Institution.

The stakes were merely whether both George W. Bush and Richard B. Cheney could receive votes from the Texas electors in the 2000 election. In other words, if Ms. Miers had lost, the Supreme Court's decision in Bush v. Gore would have become moot.

Ms. Miers' opposition in Jones v. Bush was merely Sanford Levinson (BA-Duke, PhD-Harvard, JD-Stanford), the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law, author of over 200 articles in professional and more popular journals, co-author of a leading constitutional law casebook, who's also been a visiting law prof at Harvard, Yale, NYU, and BU. This would be the same Sandy Levinson quoted in today's WaPo as saying of Harriet Miers (emphasis mine): "The only thing to infer from this [case] is that she's a good lawyer." Because how'd she do? As Prof. Levinson's gracious comment suggests, she did pretty well: She beat Prof. Levinson like a drum, not once, but three times on this case — in federal district court, then in the Fifth Circuit, then on the certiorari petition in the U.S. Supreme Court.

This, by the way, is only one of three of Ms. Miers' reported appellate cases that included constitutional law issues. But I don't know how you guys have gotten the notion that "constitutional law" is tougher than brain surgery and rocket science combined. I guarantee you that there are aspects of tax law and securities law and contract law and tort law and a dozen other legal specialties that are every bit as difficult as constitutional law. The cases on those subjects that top courtroom lawyers regularly argue, and that federal courts (including the Supreme Court) regularly decide (with more frequency than they address pure con-law subjects), are every bit as intellectually challenging.

Moreover, any nominee could be tripped up by some senator who's pulled one book at random from among the 530-plus volumes of United States Reports, flipped it open to a random page, and asked: "What about the Supreme Court's holding in 1930 in the case of Hopkins v. Bacon? Do you agree or disagree with that case's analysis of the proper treatment under the federal income tax code of a spouse's interest in income received by the community estate in Texas, as opposed to California or Arizona?" I suspect that John Roberts would no more have known how to answer that question than Harriet Miers would have. Senators who are simply trying to play "gotcha" will be recognized as doing that — and it is they who will be mocked, not Ms. Miers. There is a reason that lawyers — including lawyers who are Justices on the Supreme Court — have online and hard-copy law libraries (with elaborate systems of indices and digests and cross-referencing): It's because we look stuff up when we need it, because there's too much of it for any of us to carry around in our heads.

Ms. Miers' own constitutional law professor still remembers her — after almost 40 years! — and has been quoted as saying she was an "excellent student" who was "very well prepared." Professors, colleagues, opponents, judges, and clients (including one nicknamed "Dubya") all seem to believe that she has the intellectual chops. It seems to be only in the minds of her nomination's opponents that she's chopped liver.

That WaPo article, although inaptly headlined, is a nice piece of reporting and well worth reading for anyone interested in Ms. Miers' record as a practicing lawyer. Also worth a look for its original reporting is this AP article. (It does contain one obvious mistake, perhaps introduced in editing, when it says "[i]n private practice with [Locke Purnell] and its successors, she was the counsel of record for only about 20 cases." That's about right for reported cases, which are only those producing a formal written opinion from the judge that he/she has in turn designated for widespread publication, which tends to happen mostly with appellate decisions and a very few federal trial court decisions. But I'd bet a randomly chosen body part that she's been "counsel of record" — that is, among lawyers who've entered a formal appearance with the trial or appellate court — in hundreds of cases over her career.) The AP article reveals, for example, that what I'd previously thought was one of Ms. Miers' rare losses — the Microsoft class action case — actually turned into a win: After losing an interlocutory appeal, Ms. Miers nevertheless persuaded the trial judge who'd earlier ruled against Microsoft to reverse herself and de-certify the class. Do you have any idea how hard it is, in general, to persuade a trial judge who's already been affirmed on appeal on a particular point to reverse herself?

And note in particular in both articles how many of Ms. Miers' defeated opponents from the courtroom, in addition to Prof. Levinson, also had complimentary things to say about her. I hope that the critics of Ms. Miers' nomination from the political Right will be equally as gracious after she becomes Justice Miers, but I'm certain she will be gracious to and about them.