Sunday, October 09, 2005

How to undermine all your preceding arguments in a spectacularly gratuitous closing

Boston attorney Kevin P. Martin, a former law clerk to Justice Antonin Scalia, lays out his case for the appointment of Harriet Miers to the Supreme Court.
Any suggestion that Miers lacks the basic competency to perform the functions of a Supreme Court justice betrays a lack of understanding of how the Supreme Court operates.
Meaning? Well, the Supremes really don't have to do any intellectual or judicial heavy-lifting. Apparently it's frowned upon if they do.
The qualities needed by a Supreme Court justice are not necessarily those needed by an advocate or scholar. By the time the court agrees to take a case, it has already been the subject of rounds of litigation in the lower courts. Indeed, the court generally will not even take a case unless the issues it raises have already been addressed by several federal courts of appeal and state supreme courts. When the court takes a case, the issues it raises have already been well developed and the arguments on each side honed.

Moreover, cases argued before the court are the subject of extensive briefing by the well-qualified members of the Supreme Court bar and the federal and state solicitors general. Each justice also has a staff of four experienced law clerks, top graduates of the nation's most prestigious law schools, to assist them in synthesizing and analyzing the pertinent lower-court opinions and briefs as well as the court's own precedents.
See, most of the thinking has already been thunked.

So what characteristics should a nominee possess?
What a Supreme Court justice needs most is good judgment and a principled approach to interpreting the Constitution and laws.
A justice needs good judgment. Yes, yes, yes. Hard to argue with tautologies.
And nothing -- nothing -- Miers's critics have pointed to yet suggests that she lacks either judgment or a principled approach to legal interpretation.
Martin should have stopped there. But he didn't.
Conservatives are doing Harriet Miers a grave disservice by their immediate opposition to her. Indeed, the opposition could ultimately prove self-defeating if she is confirmed and begrudges the assaults on her competence and integrity from the right. [emph added]

Piss her off, and Harriet Miers -- she of the good judgment and principled approaches -- just might be tempted to kick you in the judicial nuts if you or your "cause" winds up arguing a case before her.

[Thanks to Busy Busy Busy]

No comments: