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Friday, October 14, 2005

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.

Posted by Beldar at 06:05 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Miers, lesser-known aspects of the Constitution, and senatorial gotchas and sent a trackback ping are listed here:


(1) craig mclaughlin made the following comment | Oct 14, 2005 6:57:28 PM | Permalink

"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."

That very succintly makes a point I've been trying to make for days. The most difficult course I took is law school was Georgia Practice-- a Georgia civil procedure course. Just trying to get to the proper courthouse in Georgia is- or was at least-- more difficult than the commerce clause line of cases.

(2) Beldar made the following comment | Oct 14, 2005 7:20:47 PM | Permalink

Mr. McLaughlin, I don't know about the current curriculum or practices at other law schools, but when I was a freshlaw at UT-Law in 1977-1978, constitutional law was a one-semester, four-credit-hours course, and not taught until the spring semester, whereas contracts, torts, and property were all two-semester, six-credit-hour courses. That wasn't random or accidental. My con law prof was the late, great Jerre S. Williams, later a judge on the Fifth Circuit. Prof. Williams' affectionate nickname was "Jerre the Jet" because we would, in his memorable words, "cruise at high speed and altitude" over "vast landscapes" of constitutional law in one hour-long class period, or maybe two if a particular topic was really complicated.

I later took a course entitled "Advanced Constitutional Law" as an elective, and I AmJur'd it; I loved it, but it just wasn't all that rough sledding. (Of course, I'm just a poor damn dumb trial lawyer now, not that that keeps me from taking the likes of Mr. Justice Souter or Mr. Justice Kennedy to task on matters of constitutional law from time to time.)

(3) saveliberty made the following comment | Oct 14, 2005 7:21:11 PM | Permalink

Thank you, Beldar!

This was another entertaining and yet informative post. I especially enjoyed learning of the scholarly credentials of the ever deranged Joe Biden.

(4) TBinSTL made the following comment | Oct 14, 2005 7:31:47 PM | Permalink

I can't help but feel the sort of "secret smile" kind of anticipation that I felt leading up to the last election when Pres. Bush's defeat was widly heralded and fortold with a forcefulness that betrayed a great desire to believe it was true, but also an inner knowlege of thier own doom.
I am quietly waiting for the long wail that will accompany the outcome. Perhaps they can harmonize with the Dems who also thought they knew better.

(5) Beldar made the following comment | Oct 14, 2005 7:40:48 PM | Permalink

Liberty, were I not so sure that she'd reject the idea, I'd make and send Ms. Miers three large pieces of poster-board to lay face-down on the table in front of her for her confirmation hearings, for emergency use only during questioning by the senior senator from Delaware, the first reading simply (but in foot-tall bold lettering):


Another would have just the citation to a certain law journal article from which large portions of text somehow made their way into one of law student Biden's papers without attribution. And the third would have a head-shot picture of Neil Kinnock.

She could flash just the first of these cards to the assembled senators "accidentally" before the C-SPAN broadcast got going, and I'll betcha she wouldn't have any trouble from Slow Joe.

(6) saveliberty made the following comment | Oct 14, 2005 8:14:29 PM | Permalink

LOL! The minimalist approach is best. 76/85, but please use crayolas so that he can follow along.

Here's more fun-- sometimes you need to laugh (courtesy of ScrappleFace

October 14, 2005
Bush: Miers' Critics Can Still Save Face
by Scott Ott

(2005-10-14) -- President George Bush today offered tips to conservative pundits designed to help them save face even before Harriet Miers is confirmed as an associate justice of the Supreme Court.

"Everybody makes mistakes," said Mr. Bush. "I don't think that George Will or Ann Coulter should withdraw from syndication. There's still time for them to pull back and try another approach."

The president suggested that some of the most strident opponents to the Miers appointment could employ self-deprecating humor as a way of conceding their error while maintaining credibility.

"I think it would be almost charming," said Mr. Bush, "if Bill Kristol on Fox News would just slap his forehead and say, 'Harriet converted me. From now on, I'm a neo-pro'."

Meanwhile, the latest ABC-CNN-Gallup poll showed that the popularity rating for professional political commentators remains at plus-or-minus four percent.

(7) George Turner made the following comment | Oct 14, 2005 8:32:02 PM | Permalink

Well, the commentary about the hearings are certain to create an amusing spectacle, as NRO regulars start screaming about "softball questions" that fail to derail Miers.

As to the Third Amendment, I have to ask if it covers hotels, which are really just overgrown boarding houses. Does it extend to state law-enforcement personnel as well as troops, and even to citizens being directed by the state? Would it apply to an Emergency Order by Kathleen Blanco forbidding hotel operators from evicting any guest claiming to be a Katrina victim, so long a the tab gets paid? That's the closest I can come to a Third Amendment question.

(8) kma made the following comment | Oct 14, 2005 8:51:10 PM | Permalink

When are the hearings? Anyone know?

(9) Rob made the following comment | Oct 14, 2005 8:54:19 PM | Permalink

This entire lynch mob s/b embarassed:

consider THE ANTI-MIERS "she might really just be an introverted/ambitious but less admirable/probable ass-kisser" THEORY # 137

Rich Lowery has reached a new low with this Corner post:

"I obviously don't know Harriet Miers and my friend Matthew Scully might be spot-on about her in the New York Times today. He could also be making a very typical mistake. "I'm guessing Miers is an introvert from what we've heard about her, and I think people often assume that if someone is quiet and unassuming that means they have no ego, no resentments, no ambitions. This is nonsense. Introverts are people too, with all the same failings although they aren't always as up front about them. And I just don't buy that Miers has no ambitions. You don't work 16-hour days for years without having ambitions, you don't pour your entire life into your career without caring about it. If this nomination is something she didn't want, she could have said “no.” The fact is that there are many ways to get ahead--one of them is to accumulate the kind of credentials that you think might get you on the Supreme Court in 20 years; another is to loyally serve--and ingratiate yourself with and flatter--a very powerful person. Both are ways to be ambitious, one is just quieter and lower-profile (and maybe less admirable) than the other. Anyway, just a thought. I could be wrong and she genuinely might be a saint."

(10) Bill S made the following comment | Oct 14, 2005 10:08:39 PM | Permalink

If Ms. Miers cannot outwit Biden, Kennedy and the other dim bulbs on the judiciary committee, she doesn't deserve to be approved. Of course, a 2nd year law student from the Devry Law School (Internet Campus) could outwit those idiots.

(11) Beldar made the following comment | Oct 15, 2005 12:09:44 AM | Permalink

kma, Sen. Specter says he wants to finish the confirmation hearings before Thanksgiving, but that's the most definite word I've seen.

(12) Beldar made the following comment | Oct 15, 2005 12:13:19 AM | Permalink

Rob, Mr. Lowry's post is half-right. Obviously, Harriet Miers is ambitious. He's just confusing "work-horse" with "ass-kissing show-horse." He may still not know much about her actual record before going to work for Dubya (which actually spanned twenty-five years, not just twenty, and which compares quite nicely with Justice Powell's (and no, Patterico, I'm not saying that means she is likely to vote like him, just that her qualifications are comparable)). I have hope Mr. Lowry will see the light, because I believe he's a fair guy in his heart and his heart's in the right place.

(13) Bill Faith made the following comment | Oct 15, 2005 12:18:44 AM | Permalink

Does anyone have time to explain "76/85" for a poor dumb engineer who's sure to appreciate anything that makes Biden look silly?

Beldar, between you and Hugh Hewitt I could be moved back into the pro-Miers camp if someone would just explain away my fears on the recusal front. I'm thinking in particular of Hamden v. Rumsfeld, but there may also be other important cases where her past in the White House will cost the good guys a vote at a critical time. Am I missing something?

(14) Bill Faith made the following comment | Oct 15, 2005 12:23:09 AM | Permalink

Oops, 76th in his class. I should read the post twice before asking questions about it. Sorry about that. I'm still concerned about recusal though.

(15) Beldar made the following comment | Oct 15, 2005 5:37:28 AM | Permalink

Mr. Faith, I may try to expand my research on this, in which case I'll do a full post. But for now:

Justice Scalia's opinion (in a prior post, I may have mis-linked the full opinion of the Court rather than his separate memorandum opinion on the recusal issue) in the duck hunting case is really a wonderful primer on the law of recusal generally, and in particular as applied to the SCOTUS. (Reading this opinion will convince you of the wisdom of the rule that "You don't tug on Superman's cape.") Note especially his discussion of the particular importance of the Supreme Court not proceeding shorthanded (e.g., at pp. 3-4 & 18), a variation on the ancient "rule of necessity." Oddly enough, recusal will be less of a problem for SCOTUS Associate Justice Miers than it would be for Circuit Judge or District Judge Miers.

I would add to that discussion this gloss (as one who's blogged a lot about judicial ethics and lectured at continuing legal education seminars about legal ethics and disqualification more generally): When you eliminate from the mix the so-called "imputed conflicts" — that is, conflicts based not on the challenged individual him/herself having actually worked on a specific administration policy or rule, but instead based on someone else who worked for or with the challenged individual having worked on that policy or rule — then the problem gets much less severe. Merely being in the Administration probably drops out of the mix if that's the standard, as I think it should be, at least for SCOTUS conflicts. Likewise, the fact that an issue was "floating around out there" ought not be enough to compel disqualification/recusal; nor should the fact that an issue was generally under discussion. Rather, I believe that disqualification/recusal ought to be limited to those situations in which there was a specific rule or policy that she, personally, was instrumental in creating (e.g., a written national security directive or finding adopted based on the specific legal advice of Miers during the comparatively short time that she's been White House Counsel). And indeed, the Adminstration might be able to reduce or virtually eliminate the problems simply by conducting a comprehensive, independent review of everything she'd personally worked on, with a new Counsel for the POTUS going over the same ground to see if he/she reached the same conclusions, and if so, re-affirming the work through new policies/findings and basing future conduct on those.

Keep in mind too that by tradition, Justices generally are themselves the last word on their own recusals. Brother Hewitt has argued, and I tend to agree, that having been in the Administration since 9/11, Ms. Miers is keenly aware of national security concerns and unlikely to be cowed or swayed by shrill voices from the political margins. If, based on her own ethical evaluation (not some Ninth Circuit random panel's, for instance), she thinks she must recuse, then she will; but if she doesn't, that's probably the end of the matter. This, again, is something else unique to the SCOTUS.

I don't think anyone can rule this out as a possible downside to Ms. Miers' nomination. But I think it's a manageable problem, and there's lots of precedent even during tough times. Consider, for example, Justice Robert H. Jackson — FDR's New Deal Attorney-General who went onto the Court in 1941, took a break to prosecute the Nuremburg Trials in 1945-1946, then returned to the Court. Consider Justice Tom C. Clark, the last born-and-reared Texan on the Court — Truman's AG until 1949, then a Justice who ruled against him in the famous steel industry seizure case, Youngstown Sheet & Tube Co. v. Sawyer in 1952 (oh well, at least he didn't disqualify himself though).

(16) David Walser made the following comment | Oct 15, 2005 11:38:48 AM | Permalink

One of the original charges against Miers was that she was unfit for the court BECAUSE she was Bush's friend. That is, even if she were supremely qualified in every other way, their friendship disqualified her from consideration. In that context, I found the following line from Justice Scalia's memorandum (linked by Beldar above) interesting: "Many Justices have reached this court precisely because they were friends of the incumbent President or other senior officials.... (top of page 5)." If friendship with the President disqualifies someone from a position on the court, it must be an awfully new standard.

(17) Crank made the following comment | Oct 17, 2005 3:36:18 PM | Permalink

FWIW, when bored some years back I looked - there are only four or five cases out there on the Third Amendment. There was only one serious case - the Second Circuit in the 80s rejected a claim that NY governor Hugh Carey had violated it by quartering National Guard units in the barracks of absent, striking prison guards at Attica. I believe that the 2d Cir. held that the barracks were not private homes.

I would, on the other hand, be concerned if Chuck Schumer (what? there are Senators other than Biden?) starts asking and finds her uninformed about vast and frequently revisited regions of Con Law like the Dormant Commerce Clause, the 11th Amendment, the (ugh) Lemon test, or the stop/frisk rules. Hewitt, at least, has argued that she shouldn't even be expected to know that much; I find that troubling.

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