PTSD

Are we an academic blog?

Probably not. But we are academics-in-training, and so I feel obliged to offer an academic-political-topic-with-international-implications post as penance for the cat photo.

Much of the debate surrounding Harriet Miers' nomination has focused on two things: her relationship to GWB, and her lack of relative experience. Priya's already noted the possibility that a similar crony appointment in a developing or non-democratic state would seem (at the very least) odd. And many opinion pieces and bloggers and other commentators have brought up previous attempts to place a close confidant of the President on the Court.

This is not the real problem. Politics works as a social network, and I don't really understand why we're all so surprised. Especially given other decisions GWB has made in his presidency. I honestly think we should be gratified that he's nominated an actual lawyer, rather than someone who ran a bar.

But there should be qualifications that we expect for those who sit on the Court.

Constitutional scholarship is one of them--the body of law interpreting the Constitution is vast and complicated. It isn't a field of scholarship to which every lawyer is suited, and it isn't the sort of thing you can pick up "on the job." Miers strikes me as a very good lawyer who has the determination required of a winning litigator. Litigators aren't known for their constitutional expertise, they're known for their ability to win cases. Law partners aren't promoted for their love of the 14th Amendment.

Without a judicial record, the probability that a nominee will be a capable (forget impressive) justice is much too unknowable. Examples from earlier Courts mostly obscure the issue--the role of the Court has changed, standards for the legal profession are higher (very few states allow admission to the bar without law school, and for good reason), and those justices who succeeded without experience are not the rule--they are exceptions. Being a very good attorney does not make one a very good judge. Some of the qualities required are mutually exclusive.

Whether commentary about Miers' law school is useful or not, her record of advocacy rather than legal scholarship begins there. She has shown little evidence that she aspires to be a scholar or a judge, and both roles are required for Supreme Court justices.

This should be the central question when deciding the result of her nomination. Not her gender, not who she knows, not where she went to school, not her hands-on role in crafting the War Against Terror, not whether she'll be a conservative or a liberal on the bench. Does she have the experience and the ability required to contribute to precedent in all areas of Constitutional law? From what I've seen (and it's my blog post, so I get to say this), she doesn't. And she shouldn't be confirmed.

My dad agrees, for what it's worth.

(Tangential note: I can't decide whether Gerber is consistent or not. Outside his expertise on Clarence Thomas, his concern seems to be one of promoting conservatism, rather than the diversity he applauds in his most recent Findlaw piece.)

ETA: I just love it when people start a paragraph talking about a legal issue with "I'm not a lawyer, but..."

Nobody starts a sentence "I'm not a political scientist, but..."

posted by Elizabeth @ 12:40 PM