10 October 2005

No Harry Truman Blackmun

So, this is the Harriet Miers nomination. It looks pretty stupid to me. (With no apologies to "Savage" Steve Holland—but I want my two dollars!)

While on active duty, I observed that there were four kinds of military officers. Most military officers—and this is no slam on their quality, only a comment based on their personalities—were well-suited to be staff officers (even at very high and senior levels), but not well-suited to be commanding officers. Relatively small minorities of the officer corps are well-suited to command, but not to staff duty, or are well-suited to neither staff nor command.1 A vanishingly small proportion of the officer corps was well-suited to both staff and command—probably under 2%. There is no shame in excellence at only one of these two aspects of the officer's role; it's just that flag-level leadership (generals and admirals) requires excellence in both.

And this is my objection to Harriet Miers as a Justice of the Supreme Court. The normal divide in the legal community is between advocacy and counsel, with advocates being in the majority.2 Harriet Miers' career shows virtually no sign of much skill at pure, nonadvocate counsel. (Calling it the "White House Counsel" does not make its actual function that of counsel.) Given the poor record of the Texas State Bar in dealing with unauthorized practice of law (among other problems) while still respecting free speech during Ms Miers's tenure there, I cannot characterize her "management" as demonstrating either management skills or the capacity to counsel. I don't even need to invoke the Texas State Bar's supine posture in responding to the out-of-control Texas Court of Criminal Appeals' repeated refusal to follow clear mandates from the US Supreme Court.

Thus, I'm taking the opposite tack from Professor Kerr over at the Conspiracy, who remarked:

As most practicing lawyers know, academia can be a little bit, well, quirky. Law professors generally are rewarded for being clever, or for catching a wave of fashionable ideas and writing a lot about them. Within the academy, it's frequently better to be gloriously wrong than modestly right. * * * Being fashionable, exceedingly clever, or gloriously wrong aren't assets for judges. The case of Yale Law professor William O. Douglas illustrates the problem. Douglas was brilliant, and a very successful academic as an important figure in the legal realist movement of the 1930s. But those qualities didn't translate well into being a good Justice. His opinions are bold, but also sloppy and frustrating; If you're trying to make sense of an area of law, you hope that the key decision in the field isn't a Douglas opinion.

Law Professors for the Supreme Court? (08 Oct 2005) (paragraphing removed for clarity). Without defending Douglas's record as a jurist—Professor Kerr's accurate assessment of his opinions applies equally to many other twentieth-century justices, most particularly Justices Jackson, Fortas, and Burger, who did not come from academia, and to a lesser extent to one other who did (Frankfurter)—I think he misses the point. As he ultimately notes, there is no particular background that makes one more or less suited to the role of being a judge of any kind, let alone a Justice of the Supreme Court. However, one aspect of legal academia at least improves the yield relative to most types of legal backgrounds: Successful professors must practice both advocacy and counsel. Perhaps that improves the yield from 1% to 10%; good judges are hard to find anywhere.3

I would rather have a smart judge who is ideologically opposed to my position, but who listens and makes up his or her mind based on what is actually in front of him or her, than an agreeable ideologue who won't listen. Or, in other words, I'd rather have Harry Blackmun (even the 1972 model) than William O. Douglas (at any time). Based on her record and the reprehensible comments from James Dobson et al., Harriet Miers is no Harry Blackmun.

  1. Most of these were decent-enough human beings; their personal outlooks and skill sets limited them to being technicians. The most obvious examples were some categories of non-line officers, such as chaplains. Although the leadership of the Air Force will deny this forever (since this is also the group from which it arose, due to Congressional mandate that the commanding officer of any squadron or above with a flying mission or element must be a pilot or navigator), a disturbingly high proportion of these competent technicians who could not be trusted in a leadership role—either on staff or in command—was composed of pilots. For some reason, the navigators seemed to escape this particular trap.
  2. Although it is not a complete explanation—nothing is—this observation goes a long way toward explaining why the practice of law is so miserably managed, especially in larger firms: Getting ahead requires advocacy, but managing the result requires counsel. Given the abyssmal training afforded lawyers beyond law school, I seriously doubt that the "both advocate and counsel" proportion reaches half that of the military officer corps.
  3. Exhibit A: Judge McConnell. Although I disagree with most of the substance and tenor of Judge McConnell's scholarship, it certainly shows a more than adequate appreciation for the complexity of the task and the balance between counsel and advocacy. Thus far, anyway, it looks like he's going to be an excellent judge. After all, everyone gets a few cases wrong! ;-) That McConnell garnered widespread support from the purportedly left-leaning mass of legal academics should say something.

    One other problem with Professor Kerr's musings is that it presumes that there is much, if any, parallel between the legal academia of the 1930s and the legal academia of the 21st century. They are as different as is the study of literature today from the heyday of philology in the late nineteenth and early twentieth centuries. Not always better; virtually always different.