If you haven’t read the book The Brethren before, and if you are a judicial conservative, then I am probably about to upset you a great deal.
One of the Justices to whom Harriet Miers is most frequently compared is Lewis Powell, due to their lack of previous judicial experience before being nominated to the Court, and their shared qualification of past bar association leadership. I mentioned recently that Eugene Volokh has said that Powell was a “highly regarded” Justice. For the life of me, I don’t have the slightest idea why. And I’d like to quote you two passages from the book The Brethren that help explain why I think Powell was a disaster — and why any comparison of Miers to Powell worries me greatly.
(By the way, anyone interested in the Supreme Court really ought to read The Brethren. It is a book by Bob Woodward and Scott Armstrong about the inner workings of the Supreme Court from 1969 to 1976, based on interviews with more than 170 law clerks and several Supreme Court Justices. No journalists before or since have had the kind of access to Court personnel that Woodward and Armstrong had.)
These passages also help explain the connection that I see between top-notch qualifications and a Justice’s willingness to make result-oriented decisions. If you haven’t read The Brethren before, and if you are a judicial conservative, you’ll read these passages in stunned horror:
First, I’ll quote a discussion of Powell’s fear upon coming to the Court without the necessary qualifications. Discussing Powell’s preparation to write his first opinion, in a major death penalty case, Woodward and Armstrong say at page 251:
[Powell] felt that he was in many ways ill prepared. He had practiced corporate law for nearly four decades and had never aspired to be a judge. His experience was in arguing cases, not deciding them. He directed a clerk’s attention to the 403 volumes of the Court’s published opinions that lined the wall of his office. “Bill Douglas, now, he knows what is in those books,” Powell said. “I don’t.”
Powell had confidence in his legal skills, but he was not comfortable or familiar with all this material. He had always operated from solid ground, had always been as well prepared as anyone. Now, for the first time in his life, Powell faced the possibility that he might not do a good job. Fear became an unarticulated motivation. There was only one way to catch up. He intensified his already grueling work schedule, resolving to read every Court opinion ever written on the death penalty. To make more time, he even gave up going to church on Sunday.
Sounds like he was taking a “crash course in constitutional law.”
But at least he sounds committed to the Constitution and the rule of law, huh? And, because he had been a practitioner rather than a pointy-headed academic, you could count on him to look those other Justices straight in the eye and ask them: “Hey! Where you do you see that in the Constitution?!”
Riiiiiiiiggghtt . . .
Now let’s look at how, a few short months later, Powell decided to rule for the majority in Roe v. Wade. The next passage is at pp. 272-273 in the book, and I promise I’m not making it up. Get ready for your eyes to bug out:
[Like Blackmun,] Powell also made abortion his summer research project. As a young lawyer in Richmond in the 1930s, Powell had heard tales of girls who would “go away” to Switzerland and New York, where safe abortions were available. If someone were willing to pay for it, it was possible to have an abortion.
. . . . Powell came quickly to the conclusion that the Constitution did not provide meaningful guidance. The right to privacy was tenuous; at best it was implied. If there was no way to find an answer in the Constitution, Powell felt he would just have to vote his “gut.” He had been critical of Justices for doing exactly that; but in abortion, there seemed no choice.
When he returned to Washington, he took one of his law clerks to lunch at the Monocle Restaurant on Capitol Hill. The abortion laws, Powell confided, were “atrocious.” His would be a strong and unshakable vote to strike them. He needed only a rationale for his vote.
With logic like this, Powell and other Justices yanked away from the citizenry its right to have a national debate over this contentious issue. And we are still agonizing over this usurpation, to this very day.
Boy, I’d sure love to have another Justice like him!
P.S. This is not to say that those with prior judicial experience were necessarily better. Some day I’ll tell you the story of how Potter Stewart made his decision in Roe. It’s even worse, if you can believe that.
I bring up Powell because of the numerous comparisons I have seen between Powell’s and Miers’s qualifications. But (as the Stewart example makes plain — just wait until you hear it!) qualifications are only part of the issue. You really need to know something about the candidate’s commitment to judicial restraint, as well.
With Miers, we are lacking in both halves of the equation. No good.
P.P.S. Hewitt is now comparing Miers to Potter Stewart. I couldn’t ask for a better teaser for my upcoming post on Stewart. You really won’t believe how Stewart came to his decision to concur in Roe. I really wouldn’t be making this comparison if I were a conservative supporting Miers . . .