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D. R. ZUKERMAN, proprietor
Still More on the Miers Nomination

OCTOBER 23, 2005 --

Supreme Court nomination hearings are not the equivalent of an oral examination. Nor could they be if the court is to be independent of the legislature.

Yet it appears that Supreme Court nominee Harriet Miers is to be questioned by members of the Senate Judiciary Committee as if she were a Ph.D candidate on the social application of U.S. constitutional law.

Justice Oliver Wendell Holmes once noted in dissent that "great cases are called great … because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."

LPR has a hunch that this quote, in Holmes' dissent in Northern Securities Co. v. U.S helps us understand battles between "liberals" and "conservatives" over Supreme Court nominations.

Where would there be a basis of dispute if justices placed the controversies before them alongside the Constitution and ruled accordingly? It was, LPR believes, Justice Owen Roberts who once indicated that
he simply places the case T-square against the Constitution, and rules accordingly.

When a case is accompanied by "immediate overwhelming interest which appeals to the feelings" the result, as the great Holmes warned, may well be distorted judgment -- and, therefore, bad law.
It should be noted that the Constitution does not demand that a Supreme Court Justice be a lawyer let alone a judge. For LPR, probably a great many members of the bar could serve on appellate courts, including the Supreme Court of the United States, provided only that they had judicial temperament, integrity, and were alert.

There was a time, before the 1939 Supreme Court appointment of Professor Felix Frankfurter of Harvard Law School (he was not a judge when President Roosevelt appointed him) when nominees did not testify before the Senate Judiciary Committee in support of their appointment.

And seven years before Frankfurter President Herbert Hoover apparently accepted public clamor in naming Judge Benjamin Cardozo, Chief Judge of the New York Court of Appeals (the highest court in New York) to the U.S. Supreme Court.

In our time, the clamor reflects perhaps,
" immediate overwhelming interest" in a particular public policy issue concerning certain privacy rights found by the Court more than thirty years ago.

LPR would find eminently acceptable a nominee who would take note of such clamor and respond to it with the concluding paragraph of the decision by Chief Justice John Marshall in Gibbons v. Ogden, extolling common sense over "ingenious" arguments that confuse ordinary understanding, and render the Constitution "unfit for use."