Thursday, March 28, 2024
Miles from the Mainstream
D. R. ZUKERMAN, proprietor
Supreme Court Nomination
Gets Miered

OCTOBER 30, 2005 --

The immediate lesson of the Miers Supreme Court nomination debacle seems to be that a president is not advised to name his White House counsel to the high court or senators will try to pry open matters properly left to president and counsel by 1) attorney-client privilege, 2) by executive privilege, 3) by national security concerns, among other things.

But if a senator seeks information to
which he is not entitled, why should a president shrink from confrontation by withdrawing the nomination?

It is difficult to see how the president's stature has been enhanced by the Miers withdrawal.

LPR has no knowledge of the legal career of Harriet Miers and is not persuaded by self-serving conclusory assertions of the opposition that she was not up to the job.

The opposition was, likely, motivated by fear that she would support Roe v. Wade and come under the influence of the "liberal" wing of the Court.

Thirty-five years ago, President Nixon nominated federal appellate judge G. Harold Carswell to the Supreme Court. Carswell had already been approved by
the Senate Judiciary Committee to be a federal district judge and then a judge on the Court of Appeals for the Fifth Circuit.

Alas, in 1949 he made a speech in support of "white supremacy." And the whispers got circulating that he was no more than a mediocre judge. Sen. Roman Hruska's comment in the Senate, that perhaps mediocrity ought to be represented on the Supreme Court was rehashed, recently, when another senator seemed to offer a paraphrase on the abilities of Ms. Miers.

At the Judiciary Committee hearing, February 2, 1970, Sen. Hruska stated, however that he did not regard Judge Carswell to be "mediocre."

Democratic Senator Philip A. Hart asked Carswell his view of "a strict constructionist." Carswell answered, in part, by noting that Judge Benjamin N,
Cardozo (later an associate justice of the Supreme Court) recognized in "The Nature of the Judicial Process'" that "there is a grain, almost inevitably, of law-making power in the judge."

Carswell went on, however, to refer to Federalist No. 47 and its discussion of the separation of powers the Constitution provides for the executive, legislative and judicial branches.. Senator Hart said that Judge Carswell gave "a very good answer."

To quote Judge Cardozo directly, he has an observation that should perhaps offer some solace to those of us disappointed that Supreme Court nominations more resemble basketball in-fighting for advantage beneath the rim.

"I sometimes think that we worry ourselves overmuch about the enduring consequences of our errors. They may work a little confusion for a time. In the end, they will be modified or corrected or their teachings ignored. The future takes care of such things." (Yale University Paperback, at 179.)

Cardozo saw his "duty as judge may be to objectify in law, not my own aspirations and convictions and philosophies, but the aspirations and convictions and philosophies of the men and women of my time." (Id. at 173.)

Cardozo recognized, (Id. at 112), "that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness,"

Yet he acknowledged that both judge and legislator "must get this knowledge… from experience and study and reflection; in brief from life itself." (Id. at 113.)

For Cardozo, judge and legislator "is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only
between gaps. (Id.)

Cardozo, writing when he as Chief Judge of the New York Court of Appeals was perhaps discussing the judicial process more in the context of the common
law, than statutory or constitutional law.

He recognized that constitutions setting forth "general principles" provide the judge often greater freedom of choice in judicial construction than statutes.

He did cite, however, Otis v. Parker, 187 U.S. 608, to warn against turning a constitution into "'the partisan of a particular set of ethical or economic
opinions....'" (Id. at 89.)

Justice John Marshall Harlan, dissenting in Shapiro v. Thompson (a 1969 decision invalidating residential requirements for welfare assistance) thought the majority had taken the Court away from its "essential function… to maintain the constitutional divisions between state
and federal authority and among the three branches of the Federal Government…"

LPR thought it would be nice to have Ms. Miers cite the Harlan comment and also note that he was a graduate of New York Law School -- prepared to correct a senator who should have referred to Harlan as a graduate of NYU Law School.

For the present, we are left to find solace in Judge Cardozo's optimism that the future will correct the errors of the present day officials.

LPR is not convinced that such correction will be found in the polemics of partisans who are not as knowledgeable as they ought to be on what Cardozo called "the
aspirations and convictions and philosophies of the men and women of my time." (Id. at 173.)

It is LPR's hope that the next nominee will note the principled approach to the Constitution indicated by Justice Harlan, in addition to the wisdom of Judge Cardozo.

And heavens, what if a senator inquires of a nominee to the high court: Do you believe God created the universe?