Post Date: October 23, 2005
The following op-ed by Professor Charles Fried, What Miers must show, appeared in The Boston Globe on October 23, 2005.
Of course, it is not necessary for Supreme Court nominee Harriet Miers to have attended an elite law school to be qualified for a seat on the Supreme Court: Neither John Marshall Harlan nor his grandfather (famous for his eloquent dissent in the separate-but-equal decision) did, and Robert Jackson, perhaps the most elegant writer in the court's history, attended no law school at all.
And it certainly is not necessary that she previously have served as a judge on a lower court. Many of the great justices were new to the bench, starting with John Marshall, through Charles Evans Hughes, Earl Warren, and William Rehnquist.
What is indispensable is that she be able to think lucidly and deeply about legal questions and express her thoughts in clear, pointed, understandable prose. A justice without those capabilities -- however generally intelligent, decent, and hardworking -- risks being a calamity for the court, the law, and the country.
The Supreme Court hears arguments in some 80 cases a year that present the widest range of issues of importance to the law. To give some recent examples: What innovations are patentable and what should be the role of juries in deciding whether a patent is valid or has been infringed? Are police officers entitled to ask the passenger of a car to step outside when they have made a lawful traffic stop? Does the First Amendment protect a government worker if his boss thinks his complaints are a nuisance to the work of the office? Does the exception for child-related materials in the First Amendment's protection of sexually explicit speech extend to computer generated images that look like they depict children? What are the proper procedures to be followed when the tax court considers recommendations from its administrative law judges?
All these questions have two sides (at least) and present real puzzles, or else they would have been settled at some lower level. None of them will yield simply to good instincts and a pure heart. Nor will something called a judicial philosophy -- whatever that is -- guide a judge through this maze of nicely balanced intricacies.
Once a conclusion has been reached it must be announced in an opinion setting out the circumstances, the competing considerations, and the reasons for that conclusion. Otherwise the parties will feel cheated and lower court judges, lawyers, and affected interests will have no guidance in dealing with the problem in the future. In this sense Chief Justice John Roberts -- who bids fair to becoming one of our great chief justices -- was wrong in saying that his job is just to call balls and strikes. It is that, but it is just as much to explain why he has made the calls he has. The courts are the only organs of government whose job it is not only to decide contentious issues but to explain those decisions. Its most important product is those explanations, on which the enduring effect of its decisions depends.
A justice without the strength of mind to pick her way through these intricacies and the skill to explain her decisions in understandable and compelling prose suited to those intricacies will flounder in a number of ways that would be disastrous for the law. Such a justice might rely on instincts undisciplined by clear analysis and therefore over time spin a web of confusion which increasingly will entangle that justice, the justice's colleagues and a perplexed public. Or that justice might fall under the sway of one or more of his or her colleagues and so disappoint the expectation that a fresh and independent mind has been added to the court.
Worse still, if the justice cannot write then someone is going to have to do that writing for the justice, and that will inevitably be the justice's law clerks. Those law clerks almost to a person are wizards at untangling legal puzzles and masters at setting out the answers in precise if usually turgid and uncompelling prose. But they are also young graduates without wisdom, experience, or a constitutional mandate to help run the country.
Unfortunately over its history the Supreme Court has had its share of intellectually inadequate, wavering, incoherent, absurdly stubborn, or clerk-driven justices. It is not the Senate's job to test for some abstract and ineffable ''philosophy," and certainly not to apply litmus tests on particular issues: the questions a justice will have to resolve over 10 or 20 years cannot be anticipated nor categorized by such empty slogans as ''having a heart as well as a head, ''legislating from the bench," ''nourishing a living constitution," or ''strict construction."
We may grant that Miers is intelligent, decent, and hard-working. The hearings must convince us that she has the ability to understand both sides of a question, to reach sensible conclusions connected to established law, and to explain those conclusions in words that we can understand, whether or not we agree with them.
Charles Fried teaches constitutional law at Harvard Law School. He served as solicitor general in the second Reagan administration and as a justice on the Supreme Judicial Court of Massachusetts.