TCS Daily


The X Factor of Harriet Miers

By Douglas Kern - October 6, 2005 12:00 AM

My teammate X was sprawled on the hotel bed, muttering "Why? Why?" as he contemplated the failure of his legal genius.

X was the smartest member of my law school's moot court team. He wasn't the finest of public speakers and his legal writing style wasn't textbook perfect, but who could question his monumental intellect? He won the award for highest first-year GPA. He read abstruse law and philosophy journals for fun. He debated with professors after class, exercising a subject mastery that left onlookers slack-jawed. And when he proudly announced to his moot court teammates that he had found an obscure jurisdictional issue in the tournament fact pattern -- a discovery that we just had to present to the tournament judges -- who were we to object?

The moot court judges spanked his pet idea like an unruly two-year-old. The alabaster castle of X's elegantly crafted oral arguments fared badly against the massive sledgehammer of blunt legal reality. The moot court judges were local litigating attorneys who had no patience for cutesy law review theories and tricky, if-you-read-the-law-a-certain-way shenanigans. For all his brilliance, X had failed to persuade. And, absent persuasion, the law is just a game of Scrabble, played with ideas for tiles.

Where brilliance failed, directness succeeded. My partners and I avoided X's ultra-intelligent theory altogether in our oral arguments, and subsequently made the break to semifinals at the tournament.

I thought of X when I read the blogosphere response to the nomination of Harriet Miers to the Supreme Court. A litigator with a resume lacking in the oak-leaf clusters and gold-plated bowling trophies that separate the super legal achievers from the super-super legal achievers, Miers has been damned as an over-promoted crony and praised with the kind of lackluster yet overwrought accolades usually reserved for the fastest kid in the Special Olympics race. The famous quote from Senator Roman Hruska has been much cited. Of a dubious Supreme Court nominee, Senator Hruska once said: "Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there." Har, har! What a ludicrous defense of a hopeless nimrod! Har har har har har!

After we've harred our merry hars, let us reflect on the poorly articulated wisdom hidden in Senator Hruska's words. Lawyers, judges, and people do tend to be average. (Average is funny that way; it's like a mathematical law or something.) We might benefit from a justice smart enough to be smart and average enough to connect with the other 99% of the legal profession. But we aren't likely to find such a justice among the Xs of the legal profession.

Law students like X tend to end up in the judiciary, and later in life they dominate the Supreme Court. And it shows. Consider the Lemon test. Derived from a 1971 Supreme Court decision, the Lemon test is a conceptual tool for determining whether the government has "established" religion in violation of the First Amendment of the Constitution. It's a three-pronged test, and subsequent Supreme Court jurisprudence has added to it lots of modifiers and sub-clauses and associated intellectual debris. The result has been jurisprudential chaos. Predicting the constitutionality of a governmental interaction with religion is like playing an expert-level game of Minesweeper: it's half educated guessing and half dumb luck, with bombs randomly strewn across the playing field to thwart your meticulous reasoning at unexpected times. Such over-reasoned intellectual froth has the mark of X all over it.

Many average judges and lawyers skip these complex, analysis-heavy legal problems altogether. Years ago, in my county prosecuting days, I read a local judge's decision in a commercial liability case that involved a complex balancing test. To summarize the judge's decision:

        1)     Re-state the complex multi-pronged balancing test.

        2)     State how the judge wanted the case to turn out.

        3)     Throw out some peremptory language asserting that, according to the
                multi-pronged test, it's UTTERLY OBVIOUS that this decision is correct.

        4)     Let the eggheads on the appeals court sort out the rest.

Don't laugh. You think the appeals court worked any differently?

A Supreme Court justice far removed from the brainy, for-the-sake-of-argument milieu of the appellate judiciary is a Supreme Court justice more likely to compose the easily understood, rough-and-ready decisions that will influence and control average judges in average situations. Byron White was such a justice. White was never a judge before he joined the Supreme Court, and his judicial "philosophy" was utilitarian at best, but his opinions were generally clear, usable, and to the point. (Read his dissent in Roe v. Wade for a characteristic example.) His opinions will never be declaimed in speaking competitions, nor will they give rise to new movements in legal thought, but neither will they provide fodder for the mockery of future law professors in ages yet to come. And isn't a quiet, anonymous Supreme Court preferable to a grandstanding, obtrusive one?

The better known a Supreme Court case is, the more likely it is to have been decided poorly, or wrongly. The Supreme Court does its best work when it isn't trying to impress anyone. And when it comes to the composition of simple, unimpressive, and yet convincing decisions, a litigator who succeeds by persuading is more reliable than a brilliant judge who succeeds by proclaiming. Brilliant judges only need to persuade other brilliant judges. That's great if you trust judges as a class to protect your freedoms. I don't. If you don't want your liberty sacrificed on the altar of legal brilliance, you might want a few litigators holding the highest judicial power.

I would not want more than one or two non-judges on the Supreme Court. And I would not want more than one or two non-Xs on the Court. The smartest, most experienced people should perform the hardest, most complicated jobs; besides, Xs are better employed as Supreme Court justices than Barnes and Noble associates. ("Where's the new Grisham novel?" "Our four-part analysis must begin with the history of the 'Manager' decision of 2004, as well as an assessment of the meaning of 'location' in the post-realist paradigm...") But while we should entrust the law to our geniuses, we should not entrust the law only to our geniuses. Occasionally, the towering intellects of the legal world flail in confused stupors upon their hotel beds. In these instances, it might take a litigator to make the judicial system work. X doesn't always mark the spot.

Douglas Kern is a lawyer and TCS contributing writer.

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