I remarked recently that I don’t have “strong feelings” on the Miers nomination. But what I've heard and thought over the last week concerns me.
The Miers nomination reveals more than any single political issue how splintered the electorate is generally, and specifically on Supreme Court nominations. I see at least six positions:
1) Those who want a pro-Roe social liberal at all costs.
(2) Moderate liberals who just don’t want someone who’s too right-wing.
(3) Movement conservatives, a faction that has been coalesced on this issue by the powerful posts of Steve Bainbridge (e.g., here and here).
(4) Free marketeers.
(5) The religious right who want an anti-Roe justice at all costs.
(6) Political agnostics who just want somebody who is well-qualified to sit on the Court.
With this nomination, Bush has managed to clearly disappoint at least four of the six constituencies. He offers the religious right a hope based on Miers’ church attendance. As for general qualifications, I’m willing to wait for the hearing to make a final judgment, but certainly nothing in Miers’ resume establishes a presumption in her favor.
I place myself closest to (4). As discussed here, my strong views on free markets usually trump my personal views on social issues when the two clash. [I have long found myself sympathetic with Bill Weld, who I think is in some ways the future of politics – economic plus social freedom – but, alas, probably not the present, as discussed in the W$J.]
So my question on Miers is how to evaluate her credentials from what I view to be the important perspective – the law’s protection of free markets. I sympathize with Ron Cass:
Miers brings to the Court skills and experience that should not be dismissed so blithely by the intelligentsia. In addition to the flashier constitutional issues, the Supreme Court docket includes more than a few cases affecting the business world. Many past decisions sent the law dramatically off kilter in ways that undermine our economy and sap our national wealth. Antitrust cases on tying and cases at the intersection of intellectual property and competition law, for example, have had enormous impact on American business. Some have created difficulties for business, and indirectly for consumers, because the justices simply didn’t understand the practical implications of their decisions. * * * Having someone who knows more about business and understands better the practical impact of legal decisions on businesses is valuable to have represented on the Court and currently is in short supply. A modicum of practical judgment also might avoid missteps like the Kelo decision from last term.
But I wish I could as sanguine as Cass. My problem is that Miers’ defining resume entry is her leadership of the Dallas and Texas bars. What troubles me most is not where the bar, and therefore Miers, currently stands on social positions. Rather, it is that Miers is not only a member and beneficiary of the lawyer cartel, but an important defender.
As I have discussed, there is only the shadow of a justification for legal protection of this cartel. I haven’t changed my views about this justification, and I have great respect for my fellow lawyers, including those who are active in bar activities. But here we’re not just talking about a lawyer, but someone who will be one ninth of one of the world’s most important deliberative bodies, and whose career does not merely include her bar activities, but is importantly defined by them.
The crucial question for Miers is whether her views of markets generally have been colored by a guild mentality. By "guild mentality" I mean the attitude that people are not fundamentally capable of choosing for themselves, that they need elites to guide them, and that this means that laws must ensure the continuation of this guidance.
This mentality will affect how Miers makes the decisions that Ron Cass and I regard as so vital. For example, on the antitrust laws, will she recognize the potential dynamic nature of markets, or will she be unable to see past the current market equilibrium? Will she be inclined to accept the government’s explanations for takings, taxes and regulations, or will she be sensitive to the subtle but important harms these laws do to markets?
The fact that Miers has practiced business law, as Cass emphasizes, tells me nothing. So has Bill Lerach. I’m willing to wait for the hearings. For now, color me dubious.
Of course none of this skepticism means Miers won’t be confirmed. The politics is defined not by the median voter, but by those who really care about Supreme Court nominations. The category (1) folks will support Miers because the enemy of their enemy (see (3)) is their friend, and they know from the conservative outcry over Miers that for all of her supposed category (5) credentials, the next nominee is likely to be worse. None of the other groups cares enough about this issue to matter.
So the political calculus strongly suggests that, even if Miers looks like the Three Stooges at her hearings, she’ll be confirmed. Such is the state of Supreme Court politics in A.D. 2005.
Comments