Soon after Sandra Day O'Connor stepped down last month from the Supreme Court, Stuart Taylor, writing in The Atlantic Monthly, was busy lamenting SCOTUS' disconnect from the 'real—world ramifications' of its work. 'How many remaining justices,' he quizzed, 'have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big—time commercial lawsuits within the past thirty—five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively' and, Taylor said, the judicial system 'has clearly suffered.'
But even if we're to accept that a dearth of 'real—world' experience on the Court is problematic, the burgeoning Harriet Miers scuffle reveals why the sort of balance Taylor seeks may be unrealistic. For starters, even President Bush must've noticed that conservatives' disgust has been shrill, and nearly unison. Aside from more unabashed cronyism, Miers' 'underwhelming' resume seems almost laughable — how, for example, would her stint running the Texas lottery assist in tangling with Ruth Bader Ginsburg over penumbras, 'original intent' and such things? What comfort is to be found in this apparent intellectual milquetoast?
To conservatives, still worse than visceral angst were indications Democrats were tickled pink, led by none other than pit bulls Harry Reid, Charles Schumer and blogger Markos 'Kos' Moulitsas Z�niga. They seemed almost giddy, though at once cautious; on Monday Kos wrote, "That [Miers'] appointment is an act of cronyism is without a doubt, but if that's the price of admission to another Souter or moderate justice, I'm willing to pay it...my early sense is that this is already a victory — both politically and judicially — for Democrats." (It all seemed so orchestrated that John Hinderaker at Powerline theorized Bush may have cowed to a list of candidates approved by Senate Democrats.)
Ultimately, it is clear conservatives don't care right this moment about the 'balance' Mr. Taylor finds so appealing — electing a President has its privileges, and they'd long hoped for a colossus in the person of Michael Luttig or Michael McConnell, to name just two. And understandably so — this was to be Bush's dividend to social conservatives who'd sealed his second term. Yet no one knows much about Harriet Miers — e.g. (by reference to the post—Bork calculus), whether she thinks Roe is, in Sen. Arlen Specter's inimitable prose, 'super duper' precedent or whether bad precedent should be reviewed (Thomas) or let be (O'Connor). More damaging for President Bush, his supporters seem unwilling to trust him the way they did in, say, spring 2002. This time, they want the stockpiles ahead of time.
Whatever the merits of Taylor's argument for 'real world' experience, it seems clear a real limitation is the electorate's perception of a jurist's qualifications. Both liberals and conservatives have come to measure intellectual heft by reference to academic, not practical achievement. And this isn't entirely misguided. By rite the brightest law students each year are funneled into SCOTUS and appeals court clerkships, not District Attorneys' offices or divorce/bankruptcy/DWI practices. Prosecuting a homicide is probably more interesting and taxing for a newbie but as a rule Yale alums don't rub elbows with us state school types in county court houses.
Political devotees — including conservatives who find themselves personally disappointed by Miers and view elitism as a cancer — tend to find law review intellectuals reassuring. John Roberts' impeccable lectures to an awestruck Judiciary Committee are a case in point — they were enough, too, to convince conservatives that Roberts can spar with Ginsburg and Stephen Breyer. The intellectual gravitas was all there, and now with Miers (all due respect to Southern Methodist University's fine law program) it somehow seems absent.
Some conservatives found hope in the notion Miers is an ideal 'stealth' candidate, precisely because she's been too busy in the 'real world' to have been trading law review jabs with Lawrence Tribe. They may be right, too. On Tuesday Moveon.org — which sounded the claxon on Roberts minutes after his nomination — was acknowledging cluelessness: 'Right now we urgently need more information, and we need your help to get it...We need your help to...select the relevant and important details, and let us know what you find.' Not exactly locked and loaded. But conservatives find themselves asking for those same details and don't want to risk a redux of Sandra Day O'Connor, stealth or not. Many would prefer to cram Judge Luttig and his views through the Senate and force red state Dems to jump in the mud with Sens. Kennedy and Schumer. And what better way to do so that with a brilliant judge who's lashed into Griswold's expansiveness or hob—nobbed at Federalist Society debates?
Mr. Taylor also suggested elected office and executive—level experience could benefit the Court — two more of his 0's Miers would turn into 1's. History suggests Taylor is onto something — the most remarkable example being Justice John Marshall, who before serving on the Supreme Court for thirty—four years and authoring bedrock opinions like Marbury v. Madison was a U.S. Congressman and John Adams' Secretary of State (the latter continued for a bit after Marshall was sworn in as Justice). None of this sounds very 'real world' next to the Kings County District Attorney's Office but Taylor's concern — that justices appreciate a world not rotating around them — would be addressed nonetheless. The problem here, though, especially for conservatives, is that political credentials are supposed to be independent of constitutionalist ones. Robert Bork—style federalists believe a judge may be personally pro—choice, for example, but understand Roe v. Wade is bunk, or vice versa. So when Bill Frist offered Harriet Miers' loyalty (of late) to the Republican Party as evidence of her merit as a jurist, it came as something of a kick to the conservative jimmy.
I don't know whether Antonin Scalia and Stephen Breyer care a whit whether their next colleague went to Harvard or Stanford or clerked for a district court judge instead of an appeals court one. But if President Bush has his way and Miers is indeed confirmed, one imagines Stuart Taylor will be pleased, and the judiciary may well benefit from some new perspectives. Until then it's worth wondering whether Taylor's ideals are any more in touch with any 'real world' than the present Court itself.
Bill Lalor is an attorney and writer living in New York City, and proprietor of Citizen Journal