The second nomination to the Supreme Court. Once again, the word cronyism is heard throughout the land. Stealth candidate, stonewalling and document retention come with it. The lack of a paper trail adds to the unease. A dearth of constitutional scholarship raises its ugly head. Yes, the Chief Crony nominated by the Crony in Chief will continue to make the rounds with her apologists. And there is no way she is qualified for the Supreme Court. My opinion is not based on what people say or are not saying. It is based on the wisdom granted by living a life, in and out of the practice of law.
I have spent over 25 years in the pursuit of a legal education, and then in the practice of law. I have brought and defended First Amendment cases. Also, I have brought and defended copyright cases, trademark infringement, trade secrets litigation and many criminal cases. That said, I have more than a passing knowledge of the Constitution.
I also quit practicing law after many years, largely because I realized my real passion was music. I can eat, drink, sleep, run, walk, dance and laugh with music. As often as I would work 20 hour days in a law firm, I could more easily work an addition 3 hours those days on music. Music is, and has been since childhood, my passion.
What does this have to do with Harriet Miers? Lots.
You see, the best judges, and the best lawyers, are those that practice in a field that is their passion. Appellate lawyers, like Abrams, Roberts, Dershowitz and Ginsberg, honed their skills in the trench warfare of litigation and appeals. They were highly respected practitioners, and then, if so chosen, went on to the Supreme Court.
Thurgood Marshall was first arguing cases before the Supremes. Abrams is a constitutional scholar on First Amendment issues. Justice Ginsberg cut her legal teeth at the ACLU. And so it goes. Even Bork had a huge volume of constitutional scholarship behind his nomination.
In all cases, those confirmed and those rejected by the Senate, where nominees are without prior judicial experience, one salient fact comes out. These lawyers were scholars of the Constitution. Their passion impelled them to eat, sleep and breathe the Constitution.
It is not just the real world experience, such as practice as a corporate lawyer that counts. Anyone reaching the age of 40 has real life experience. It is not the client list that counts. What counts is the passion for constitutional law. And that passion comes out in the choice of full time work. For me, easy choice.
I loved arguing First Amendment cases, and I also recognized that I would never know the nuances that I could find in any violin concerto, in the case law surrounding my arguments. That is reality. And reality makes law. I once heard a judge in Chicago tell me that he was not a legal scholar. Rather he was a political hack. He's dead now, but his rulings were perfectly in sync with his scholarship.
Our founding fathers purposely wrote a rather vague document. They understood the necessity for a certain amount of wiggle room. They could not have foreseen the auto, jet planes, internet or space travel. These guys didn't even recognize the right of women to vote. African Americans voting? Never. Hence the long paper trail of case law, scholarly law review articles and speeches. Even appellate briefs are a huge factor, not just in the cases they were filed in, but often in subsequant cases as well.
In the years since the founding documents, our nation has amassed a huge amount of constitutional case law. These cases guarantee the right to free speech, even when that speech may be offensive. We recognize that separate can never be equal. Government in the bedroom or church pew? A little more dicey, but still not as much as what some would seek today.
The great experiment that is the USA, and the hundreds of years of Supreme Court cases, have fleshed out the skeleton that is our Constitution. And the scholarship that is required to appreciate the nuance of most decisions, particularly split court decisions (5/4, 6/3, etc.) is a high bar to cross.
Unless Harriet Miers comes up with some closet full of Constitutional papers, showing a lifetime devoted to this area of law that touches all others, she will quickly be swimming in the deep end of the pool, without a lifeguard. It is for her, as it was for me, a time to honestly evaluate her passion.
Everyone going to law school entertains the thought of "What would I have decided in Smith v. Jones" if I were a Justice. The fancy is fleeting. After all, John Roberts is only the 17th Chief Justice. There isn't a lot of turnover in employment on the Court.
What Harriet Miers needs to do right now, while cramming for the mother of all final exams in constitutional law, is to fairly and honestly evaluate her passion. If she has been happy in her legal work as a corporate lawyer, then her passion has resided there. If she was not happy in her career, as a law firm manager, lottery director and White House secretary and short tenured Counsel, then she should have gotten out of those positions earlier and gone with her heart.
There is a philosophical question in all of this. Ms. Miers has to ask if she has used her time for the highest and best use of her talents? If not, even the best intentioned journeyman lawyer will never ascend to the stratosphere of constitutional law decided by the nine Olympians of the Supreme Court.
It is time for Harriet Miers to be honest with herself and with the country. Changing course in mid-stream is not bad. I went back to my passion of my earliest youth and became the professional violinist I wanted to be. I won't get to Carnegie Hall, unless I buy a ticket. However, I know the best use of my time was in recognizing what I had always been passionate about.
I challenge Ms. Miers to do the same. Find out if you have that closet full of constitutional scholarly papers and writings, case notes, advance sheets, reporter volumes, legislation, legislative history, state court reactions, analysis of laws affected by decisions and the library of books to go with it. If it is not there, then perhaps now is the time to face the music so to speak.
Remember always, you can attain your passion at any time in life. You simply have to be qualified to play at Carnegie Hall. And the Supreme Court is the Carnegie Hall of justice.