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.)
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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?
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