Overall, The Miers Nomination Is Troubling - But It Does Have One Virtue

By EDWARD LAZARUS

Thursday, Oct. 13, 2005

There is much to lament about the nomination of Harriet Miers to replace Justice Sandra Day O'Connor.

First and foremost, Miers's nomination further entrenches the contemporary reality that taking public stands on controversial issues -- no matter how intelligent and thoughtful such stands might be -- is virtually disqualifying when it comes to being appointed to high office, especially high judicial office. Modern politics has declared war on people who conceive and express bold ideas - and we are all the worse for it.

In the silver lining department, however, conservative squabbling over whether to support Miers has injected some welcome candor into the debate over judicial nominations.

The Miers Nomination Has Shown That No One Truly Believes in "Judicial Neutrality"

For a generation, the conservative attack on "out of control liberal judges" has sounded a single consistent theme: Liberal judges "legislate from the bench" by deciding cases based not on an "objective" view of the law, but rather on their own personal values. "Strict constructionist" judges, by contrast, narrowly apply the law as written, thereby adhering to the appropriate judicial role.

As I will discuss further below, this is a phony dichotomy. But conservatives, even highly intelligent conservatives like John Roberts, have nevertheless hewed closely to the script -- insisting that judges are not supposed to make law. Rather, their job, according to the script, is simply to take a set of rules and neutrally apply then to the facts of a given case - like an umpire in baseball, to borrow a now much-overused analogy.

Until now, that is. If nothing else, the conservative infighting over Miers has revealed that the most conservatives do not believe their own hokum about judicial neutrality, any more than liberals do. In truth, they think that personal values are crucially important to judging, and that liberal and conservative judges alike inject these values into their decision-making.

Why The Miers Nomination, In Particular, Put the Lie To Neutrality Claims

The nature of Miers's nomination may well have made such revelations inevitable. On the one hand, in order to stay true to longstanding Administration strategy, President Bush has to promote Miers as a strict constructionist who will not "legislate from the bench."

But on the other hand, because Miers is such an unknown even in GOP circles, right-wing skeptics of her nomination are demanding actual evidence that Miers will carry their agenda - and make no mistake, this is a highly political agenda, not a neutral "carry out the law as written and respect precedent" agenda -- onto the Court.

Most importantly, they are looking for assurances not about neutral decisionmaking or interpretive method, but rather about results: They want to know, with certainty, that Miers will vote to overturn Roe v. Wade. From their perspective, simply declaring Miers to be a strict constructionist is not enough.

As a result, the Administration finds itself torn between directly conflicting imperatives. It has to say that Miers won't base her legal thinking on her values, in order to position her as a strict constructionist. Yet at the same time, the only way the Administration can credibly reassure its conservative base that it can trust Miers to "do the right thing," is to hint strongly that Miers's evangelical Christian values will make her a conservative standard bearer on the Court.

Why A Miers Friend's Claim That She Will Not Inject Her Values Alarmed Conservatives

This tension is now playing out on television. On Fox News Sunday, for example, Nathan Hecht, the Texas Supreme Court justice with whom Miers has an especially close relationship, insisted (in keeping with the strategy of portraying Miers as a strict constructionist) that Miers would readily separate her legal views from her personal views. Judges do this all the time, Hecht claimed, and Miers would follow suit.

It did not take long for alarm bells to start ringing among the Miers skeptics for whom Miers's values are the only plus the nominee has to offer. As Gary Bauer, the influential head of the Christian advocacy group "American Values" put it, "If [Hecht] wants to reassure his fellow pro-life conservatives, that is the last statement he should be making."

President Bush was quick on the uptake. Defending his choice in a Rose Garden speech, the President insisted that the anti-abortion right had nothing to worry about. Why? Not because of anything in Miers's judicial philosophy. Instead, Bush's response went straight to the issue of Miers's values and the presumed role they would play in shaping her jurisprudence. "I know her heart," the President said.

Yet one would assume that where a strict constructionist's heart might lie, would be beside the point, when it came to interpreting the law. Bush, of course, was talking about her positions on issues of values and morality - not, say, her intellectual take on dry arguments about original intent.

President Bush's Remarkable Admission That Miers's Religious Beliefs Played a Role

Along the same lines, Bush would later say that Miers's evangelical religious convictions played a role in his decision to select her.

As an aside, it must be noted that, in so doing, Bush ran roughshod over the concept undergirding American politics since John Kennedy's election in 1960 that religious affiliation should be irrelevant to the attainment of high public office.

Apparently, a particular set of religious beliefs is now a qualification for office, which is troubling in its own right and also raises the question of whether religious beliefs of a different stripe might be deemed disqualifying.

For present purposes, however, suffice it to say that the only reason the President considers Miers's religious convictions relevant and qualifying is his view -- notwithstanding all the rhetoric that judges should not let their personal views affect their legal interpretations -- that Miers's convictions will importantly, even decisively, influence her judicial decisionmaking.

As the GOP Fractures, Democrats Have a Chance to Shatter Old Myths About the Law

Liberals, of course, are sitting gleefully on the sidelines watching the usually indivisible GOP conservatives break apart over Miers. But it remains to be seen whether Senate Democrats can capitalize on this opportunity to successfully change the dynamic of constitutional discourse.

In recent years, conservatives have - with a fair amount of success -- painted liberals as having defiled the judiciary by overstepping the line between law and politics, and thereby substituting their own policy judgments for the "real" meaning of federal statutes or the Constitution. And Democrats have been far less successful in conveying to the public the view that legal interpretation is inherently politically-influenced - even despite the fact that any objective study of both liberal and conservative judicial decisionmaking inexorably leads to just such a view.

At the Roberts hearings, for instance, the Democrats generally failed to debunk two pervasive and intertwining myths about the nature of judging -- myths that, together, allowed Roberts to deflect questions about his personal views as irrelevant to his qualifications as a judge, and which also served as the basis for GOP attacks on liberal court decisions.

The First Myth: Judges Only "Find" Law and Never "Make" It

First, the Democrats generally accepted the concept that judges only "find" the law as it is "made" by the legislature and do not engage in lawmaking of their own. This is nonsense. All significant legislation is riddled with gaps that need to be filled in by courts. While judges are guided in their "interstitial" lawmaking function by what they perceive to be the intent of the legislature, it is disingenuous to suggest that judges do not add content to the frameworks provided by legislatures. Judges, of course, don't write new law on a blank page, but they do write important law between the lines of what legislatures already have written.

This myth is not only inaccurate, but damaging. As Chief Justice Harlan Fiske Stone pointed out 70 years ago, "one of the evil features, a very evil one, about all this assumption that judges only find the law and don't make it, often becomes the evil of a lack of candor. By covering up the lawmaking function of judges, we miseducate the people and fail to bring out into the open the real responsibility of judges for what they do."

Stone was speaking about the judicial interpretation of statutes, but his comments apply with even greater force to constitutional interpretation. By its very nature, the Constitution is only a blueprint for government, not a code of governmental regulations. And, accordingly, the Supreme Court inevitably finds itself "making" constitutional law through interpretation, rather than simply "discovering" the answer in the document itself.

The Constitution is not a crystal ball, in which the clouds clear and a truth is revealed to the right viewer. Yet the "judges are merely finding the law" view pretends just that.

The Second Myth: A Judge's Values Do Not Properly Come Into Play In Deciding Cases

That leads me to the second, related myth - the one exposed by the current wrangling among conservatives. This is the myth that a judge's personal views and values do not properly enter into or influence judicial decisionmaking.

To be sure, conscientious judges recognizes a clear distinction between judicial interpretation and imposing personal preferences. Thus, in interpreting the Constitution, they invoke text, structure, history, and precedent as crucial guides.

But by the same token, it is pretense to suggest that judges can somehow compartmentalize - and then ignore -- their own values when choosing among interpretive methods and results.

Most cases that reach the Supreme Court are not easy. Indeed, often they arise from a "Circuit split," meaning that two different federal appellate three-judge panels (or sometimes, larger en banc panels) have already reached two different results on precisely the same issue of law. Why do experienced judges differ on such issues? Because they are different individuals, with different values and different prior lives.

Deciding what intrusions on privacy are "reasonable," what governmental purposes are "compelling," what punishments are "cruel and unusual" - to cite but a few examples - requires an exercise of judgment that is inevitably colored by a judge's own values and experience.

We should expect this - and, for that reason, Presidents, Senators, and the public must inevitably evaluate potential judges in part on the basis of their personal backgrounds and convictions. To do so, does not denigrate judges or impugn their integrity. Instead, it is simply to recognize that judging calls for judgment - and that we want people with the wisdom that comes from good values and deep experience to be undertaking this task.

In sum, the debate among conservatives over Miers's nomination exposes a longstanding intellectual deceit in their professed allegiance to "strict constructionist" judges. At the same time, it offers an opportunity -- at Miers's hearing -- to treat the public to a candid discussion of how judges actually do their jobs, in place of the mythologized version of judging that emerged during the Roberts hearings.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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