The Washington Post publishes an article today by Business Week correspondent Lorraine Woellert that seems to praise Harriet Miers, but which also coincidentally throws out some red meat for her conservative critics.
Woellert notes, as we have previously, that Miers brings rich practical business experience to her nomination. In addition to high profile free speech, discrimination, and other such rights cases, SCOTUS hears a lot of mindane business cases which attract little attention, but which have enormous consequences for our economy. In particular, Miers may be able to persuade the Court to take up unglamorous but iumportant issues which have languished for years under conflicting appelate court decisions.
Most corporate questions that reach the Supreme Court are, to scholars and the public anyway, mundane and byzantine, often delving into the nuances and possible interpretations of mind—numbing federal statutes such as the Private Securities Litigation Reform Act or the Sherman Antitrust Act. One example: "What's 'restraint of trade'? Every contract restrains trade," says Quentin Riegel, vice president of litigation for the National Association of Manufacturers. "All principles of antitrust law are court made, so we need to be as clear as possible."
Rehnquist had little appetite for such questions, and a majority on the court apparently shared his sentiments. The Supreme Court hears fewer than 2 percent of the cases that come its way; of that 2 percent, very few have any importance for business. The snubbing has taken a toll. Business finds itself grappling with lingering circuit court splits on issues such as antitrust and pension regulation, a legal patchwork that has executives reaching for the Excedrin. And the pinstripes and wingtips continue to be frustrated with the court's chronic reluctance to interpret, once and for all, critical regulations such as the Americans With Disabilities Act. Miers and Roberts could help them out by urging the court to bring clarity and uniformity to a number of business—related issues.
All very well and good. But Woellert adds:
Friends and peers trying to describe Miers and Roberts like to use the P—word —— pragmatic. That's sweet music to business ears: Corporations worship pragmatism and don't give a whit about judicial philosophy. But it's rank heresy to many on the right, who have had it up to here with jurists who weigh social and cultural mores when crafting opinions. Religious and other social conservatives want justices who will apply a very narrow "strict constructionist" interpretation to the Constitution and not read new rights —— such as the right to privacy found in Roe v. Wade —— into the framers' text.
A very interesting segue there, not fully jusdtified, but one intended to raise the hackles of the Frums, Kristols, Wills, and Coulters on the right.
Woellert really goes off the rails here:
What corporate America wants from the judicial branch more than anything else is consistency and predictability —— tools for planning in the short term. That's one reason CEOs mourned the resignation of Sandra Day O'Connor. Legal scholars have scoffed at her philosophical inconsistency, but business execs lauded her practicality and her frequent acknowledgments of real—world situations in opinions that often made their 9—to—5 workday a little easier.
Invoking O'Connor as the beacon of consistency and predictability because she doesn't follow principles is contrary to basic logic. Pragmatism and principle may indeed sometimes conflict, but pragmatism can also inform the application of principle. And principles (in the Constitution and elsewhere) may conflict with one another.
Thomas Lifson 10 16 05