Miers Unforeseen, but Unsurprising: The Invisible Hand

There has been a lot of confusion over exactly why President Bush nominated Harreit Miers, especially among the blogging intelligentsia. Rather than jumping directly into the fray and putting my opinion on whether Miers was qualified or not, I spent two weeks collecting data and now believe that I have made sense of the nomination. There are four reasons that contribute to the current President nominating someone as underwhelming to elites as Harriet Miers: (1) Bush is a pro-business president above all else, (2) The Senate Republicans placed him in a strange tactical situation, (3) The White House views qualifications differently from the blogosphere and doesn’t really buy into the meritocracy myth, and (4) the Republicans have to support Bush on the final count due to the touch of Karl Rove and the Bush money-machine. I am going to try and develop these ideas which are going to put me directly at odds with many people much more accomplished than myself. Since it is a long argument, I will break the post up into pieces and release them as I write them.

(1) That Bush is a pro-business president is not a controversial point.

As John Micklethwait and Adrian Wooldridge remind us in The Right Nation: Conservative Power in America, George Bush, having gone to Yale as an undergraduate, possesses an MBA from Harvard Business School, and is the first American president with an MBA to hold high office. His administration also holds more CEO appointments than any heretofore. Eisenhower, who is often lauded as being a little too friendly to big business only had two former CEOs in his Cabinet. Bush started with seven: Dick Cheney of Haliburton, Donald Rumsfield of G.D Searle and General Instruments, Don Evans of Denver-based Tom Brown, Andrew Card of General Motors, Ann Veneman (agricultural secretary) of Calgene, Condoleezza Rice (a political scientist) of Chevron Corporation, and Paul O’neill of Alcoa. Colin Powell has an MBA, Miers was a coporate lawyer, and Alberto Gonzales worked for Vinson and Elkins, who represented Enron prior to its collapse.

Bush has consistently subsidized the coffers of large corporations and has done his best to remove those pesky environmental protections that prevent more wealth concentration and calcification into the hands of corporate entities and CEOs. The Kyoto protocol was pronounced dead in the same brusque manner that the dark, lurking Rumsfield notified Europe of its historic divisions between “old” and “new” Europe. (That must have been the most politic way to say: France, Germany, fuck off.) Business interests have trumpeted free-market rhetoric at times. Recall Bush’s almost trade war with Europe over steel, until the World Trade Organization settled the debate.

(2) Filling O’Connor’s seat was crucial to Bush as well, but not for the reasons movement conservatives think.

David Strauss, weighing on whether justice generally change their ideological orientation over time, offers:

Why, then, do people think that justices routinely change their views? Sometimes
the issues, not the justices, change. A "liberal" on the New Deal might be
"conservative" on matters of race relations or civil liberties; the unanimity of
the Roosevelt justices began to fray when those issues came to the fore. A judge
who was a "conservative" on criminal issues might be a "liberal" on reproductive
freedom: Roe vs. Wade would have come out the other way, had not three of the
Nixon four joined in the seven-justice majority.

Strauss has got it quite right: that the ideology of a justice depends on the issue that you catch them on.

Movement conservatives and the blogging intelligentsia have focused the debate on whether or not Miers will be more or less consistently conservative than O’Connor. However, O’Connor’s jurisprudence has only been a swing seat in regards to the most popular social and cultural issues of the day. Cass Sustein typologizes O’Connor’s jurisprudence in his latest book Radicals in Robes as the judicial minimalism that he so loves. While I haven’t yet bought the book (it’s on my January purchase list), Sustein’s clear writing style allowed me to finish most of the book in an hour at the University of Chicago’s Barnes and Noble’s bookstore. Continuing the line of thought from his landmark book (at least for my thinking on Constitutional issues) One Case at a Time, he argues that judicial minimalism, as opposed to perfectionist liberalism or legal fundamentalism (read: movement conservatives restoring the ‘Constitution-in-exile’) pushes law through nudges rather than earthquakes. O’Connor was such a judge; her concurrences and opinions have often (much to my chagrin sometimes) tried to decide cases as narrowly as possible whereas the concurrences of Scalia, Thomas, and Marshall have often wanted to rewrite, rethink, and revamp entire sections of constitutional jurisprudence.

Movement conservatives are tenacious and audacious legal fundamentalists who want to impose their counterreformation against the New Deal, Warren, and Burger courts through the force of their intellects, opinions, and dissents. Indeed, by conflating “legal competence” with “legal fundamentalism” and “jurisprudential perfectionism”, the legal elite have created the norm that a judge, to be considered qualified for the Supreme Court, needs to have a long history of constitutional interpretation on one side or the other. Jacob Levy makes this very point in his post about Miers:

People who hold it actually believe-- rightly-- that this appointment is wrong,
that friendship with the president is not a qualification for the Supreme Court,
that constitutional law does require hard intellectual work that requires
practice and thought in advance, and that the absence of any of the conventional
qualifications is something to at least worry about.

Levy’s “hard intellectual work” and “conventional qualifications” stem simply from that fact that the academic and ideological elite on both sides believe that any Supreme Court seat in general, and O’Connor’s seat, in particular ought to be about rigorous constitution jurisprudence and defendable constitutional political theory.

I hate to disappoint my future colleages but the Supreme Court, being coequal with the other branches of government, engages in politics! That means determining who gets what, when, where, and how. David Strauss reminds us what’s really at stake when he maintained:

when the Supreme Court in the mid-1930s struck down some of the social-welfare
laws and business regulations that were at the heart of President Franklin
Roosevelt's New Deal, Roosevelt attacked the court and said he wanted justices
who would take a more expansive view of federal power. Roosevelt made eight
appointments to the court, and he got what he wanted: Every one of the Roosevelt
appointees, to the end of his career, deferred to Congress on laws having to do
with federal authority over the economy.

In addition, lest you think that Roosevelt is an extreme example due to his court packing scheme, Strauss continues:

President Richard Nixon made campaign promises to appoint justices who would
stop the expansion of criminal defendants' rights and slow the pace of racial
desegregation. Nixon made four appointments in his first term, and within less
than a decade the Supreme Court had done exactly what Nixon promised--and has
not changed course since.

Desegregation, criminal right’s, deference to social-welfare laws, are not merely matters of constitutional divination and legal gnosticism, but matters of division, redistribution, and allocation in a world of finite resources. In short, questions of politics and not of theory.

(3) O’Connor’s seat is a seat for pro-business pragmatic judges now.

O’Connor was a consistently pro-business judge and, as such, needed to be replaced by another pro-business judge. Bradford Plumer hits the nail on the head: "she'll be a perfect replacement for O'Connor, who was a very similar type of business-friendly, don't-rock-the-boat type of judge. Movement conservatives like Antonin Scalia or Janice Rogers Brown are too unpredictable. Miers, on the other hand, worked for a Dallas firm that specialized in the basics. She's perfect.” Jack Balkin even takes the time to clarify what business conservatives want out of politics:

Business conservatives are less interested in shaking up the world than in
stability and in clearing a path for the promotion of their interests. Although
their goals may often overlap with the goals of movement conservatives and
religious conservatives, they are relatively uninterested in religious
proselytization or ideological crusading. Business conservatives are pragmatists
at heart, and the promotion of capital makes them more cosmopolitan in spite of
themselves… And what, exactly, does business want? Overturning the New Deal? The Constitution in Exile? The return of God to the public schools? The end of
affirmative action? Outlawing abortion once and for all? Squashing gays and
lesbians underfoot? None of these things. What business wants is stability,
comfort, predictability, and an agile, productive, submissive and demobilized
population. It wants a powerful executive that can protect America's interests
abroad. It wants a Congress freed from federal judicial oversight that is able
to dish out the pork, jiggle the tax code and deregulate the economy according
to its ever shifting concerns and interests. And it wants a Supreme Court that
will give a pro-business President and a pro-business Congress a free hand, a
Court that will protect the rights of employers over employees, advertisers over
consumer groups, and corporations over environmentalists. It wants, in short,
someone very much like Harriet Miers.

All this goes to say that if my estimation of Miers is correct, then Cass Sustein should come out in full support of her. If you think that I have concocted this whole problem of big business's interest in the courts, or, bordered on conspiracy theory, I will address these problems by quoting at length from a piece in the Houston Chronicle:

"Her business background won't solve all our problems and concerns, but now,
with her and (Chief Justice John) Roberts, we'll have two justices who have real-world business experience," (emphasis added) said R. Bruce Josten, chief lobbyist for the U.S. Chamber of Commerce, which he said is set to formally
endorse Miers. Abortion and school prayer capture more attention, but business
issues such as government regulation, employment, intellectual property and
foreign trade regularly go before the court. Miers, who has taken on Texas trial
lawyers in a battle over setting fees, has been endorsed by the American Tort
Reform Association, which favors limiting lawsuits. Sen. John Cornyn, R-Texas,
defended Miers last week by saying "she has a recognition of the problems with
frivolous lawsuits and an appreciation for tort reform." Dallas attorney Fred
Baron, a past president of the Association of Trial Lawyers of America and one
of the state's most influential plaintiff lawyers, said he expects that Miers
will favor limiting lawsuits that hold corporations accountable. "She is going
to be a George Bush tort-reformer. That's where she's been," said Baron, who
sees tort reform as a closing of the courthouse to victims of bad business
behavior. "I think she'll be a strict constructionist and won't use the law for
social engineering," LaBoon said. "She isn't someone who thinks business should
pay in a lawsuit because business has plenty of money. She comes from a
background that says business is entitled to its rights like everyone else."

The article continues by giving us a glimpse into the nominees legal philosophy:

In 1995, as Republicans took control of the Texas Supreme Court, Texas trial
lawyers backed a bill that would have blocked the court from limiting attorney
fees. Miers wrote then-Gov. Bush a letter urging him to veto the bill, which he
did. In her letter, which was released last week from Bush's Texas archives, she
wrote that trial lawyers backing the effort were "greedy" and "immensely rich
and powerful." The trial lawyers, Miers went on to write, "have brought shame on
this state, badly hurt our economic-development efforts directed at creating
jobs and continue to this day to cause our state to be held in disrepute for
'justice for sale.'

Even though we disagree on businesses having rights “just like everyone else” (I’ll rethink what rights corporations and I share when I am valued at more than several hundred million dollars regularly), Miers will probably be good for the Supreme Court in so far as her minimalism will check the movement conservatives and legal fundamentalists from creating fundamental shifts in the law.

Posted by John Stevenson at 3:32 PM |