Original Sin

is the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Harriet Miers must be pretty surprised by the conservative outcry over her nomination. After all, her October 3 remarks, upon being named as President Bush's pick to the Supreme Court, were a calculated wink and nod to conservatives that they could count on her all the way. While she did not explicitly identify herself as a "strict constructionist" who would, as conservatives demand, interpret the Constitution according to the intent of the Framers, she did say that she would apply the laws "strictly" and stay "true to the Founders' vision of the proper role of the courts in our society." In this way, she suggested that her judicial outlook mirrored the "originalist" philosophy of such model conservatives as Antonin Scalia.But, instead of being placated by these gestures, conservatives have attacked Miers as unqualified, arguing that she has never served on a federal court and has little grounding in constitutional doctrine. True, the last nine Court nominees over the past 19 years have been federal appellate judges, including several with strong ties to academia. But other models abound. Earl Warren, for example, was a prominent politician. Lewis Powell was a respected practitioner and civic leader. And Byron White came from the Department of Justice, having wielded no greater responsibility than Miers (albeit with a more elite Rhodes scholar and Yale Law School pedigree). None of these justices arrived at the Court versed in constitutional interpretation. Nor did they much engage in jurisprudential pyrotechnics during their long tenures. Instead, they adopted interpretive methods that hewed closely to their past experience and natural temperaments. Warren used his political talents and force of personality to lead his colleagues into a civil rights revolution, while Powell and White--as befitting their considerable experience as practitioners--became judicial pragmatists whose opinions depended on the specific facts of each case, the interests to be balanced, and the precedents to be applied. They were--as Chief Justice John Roberts professes to be--"bottom-up" judges, not top-down theorists. Miers almost certainly has the tools to succeed as a justice in the same way many of her predecessors did--by playing to the strengths she developed as a longtime litigator and legal counselor. Just like White, Powell, and other former practitioners, Miers has the expertise to adopt fact- and precedent- based approaches to legal interpretation. The problem is that she seems to be moving in the opposite direction. By suggesting that she may be a constitutional originalist, Miers risks pledging allegiance to an especially academic and abstract interpretive approach, for which she is stunningly ill- suited. The jurisprudence of original intent is susceptible to many criticisms. One of these is the paradox that the Framers of the Constitution apparently did not intend for future generations to interpret the Constitution according to their intent. Thomas Jefferson, for example, wrote critically of men who "look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched." But, even setting aside theoretical objections, interpreting the Constitution in light of the Framers' intent is an exceedingly difficult intellectual enterprise. To begin with, a sincere originalist has to digest the diverse views of a host of important thinkers from the Founding era, such as Jefferson, Madison, Hamilton, Adams, and Wilson. That task alone requires deep immersion in source materials (and a historiographer's ability to assess propagandistic materials like The Federalist Papers), as well as knowledge of the English political history and enlightenment philosophy against which the Framers conceived their own ideas. The sincere originalist, moreover, has to be an expert with respect to at least two "founding moments"--the moment of the Constitution's original creation and ratification and the moment of the Constitution's profound rewriting after the Civil War, when the Thirteenth, Fourteenth, and Fifteenth Amendments were added. This means, just for starters, understanding the views of the Reconstruction Republicans who crafted the equal protection and due process clauses that lie at the heart of many modern constitutional disputes. Once an originalist masters these materials, hard theoretical choices must be made. These include how to reconcile conflicts among the Framers, who disagreed vehemently on any number of issues; how to resolve tensions between the actual words the Framers chose (which often sweep broadly) and their specific intentions (which were often narrowly focused); and, of course, how to apply the Framers' intentions to contemporary legal problems (which were beyond imagining when the document was crafted). Scalia, a leading academic and public intellectual before joining the judiciary, has sometimes managed this complex undertaking. For example, in trying to give meaning to the Constitution's prohibition on "cruel and unusual punishments," Scalia has parsed the English history of the Bloody Assizes and the punishments attendant to Titus Oates's "Popish plot" as a prelude to what the Framers had in mind when they crafted our Eighth Amendment. A lack of a track record as a public intellectual or legal thinker doesn't definitively disqualify a justice from becoming a successful originalist. Even for nonacademic justices, it is possible to evolve from a constitutional novice into a jurist guided mainly by the Constitution's text and history. Take Hugo Black, the former Klansman and ardent New Deal senator whom Franklin Roosevelt put on the Court to protect his economic reforms. Black started out in a state of ignorance and was criticized to the point that Justice Harlan Stone (later elevated to chief justice) suggested that law professor and future Justice Felix Frankfurter might want to tutor Black "until he is a little surer of himself." Yet, through long summers and spare moments spent combing through original source materials, Black became an expert in constitutional history, and in the history of the Fourteenth Amendment in particular. The fruits of that scholarship remain important today, including his now much-admired originalist stand against the approach to interpreting the due process clause that produced Roe v. Wade. But, with all due respect to Harriet Miers, she is no Hugo Black, who came to the Court with what one colleague described as a "primitive" but "powerful" intellect and an insatiable intellectual curiosity about history and philosophy. Miers is a litigator and administrator of modest intellectual ambition. Nothing in her background suggests a comparable turn of mind. Indeed, even if she knows enough about competing interpretive theories to make an informed choice in favor of originalism, it is hard to imagine an approach to constitutional interpretation that Miers is less qualified or inclined to pursue seriously. Just think about how she has spent her free time. While Black immersed himself in the classics, Miers picks up John Grisham novels. In private practice, while Roberts volunteered for one challenging constitutional law case after another, Miers generally took on small family law matters. Even inside the White House, according to staffers, Miers never immersed herself in the great debates over policy. One former White House colleague, David Kuo, wrote: "When she was elevated from staff secretary to deputy chief of staff for policy, everyone was shocked. She didn't know policy." If Miers lacks both the experience with constitutional issues to be an originalist and the intellectual curiosity and ambition that might help her become one, then what are the implications of her embracing an originalist philosophy? If she does so, she will almost certainly be making the cynical choice to be a faux originalist--a justice who claims to be engaged in a search for original intent but who is really just using its language to dress up policy preferences being read into the law. This charge of cherry-picking originalist sources to support preconceived views has been leveled against Scalia, and, to a greater extent, Justice Clarence Thomas. After all, can it really be that originalism leads to uniformly conservative political results, as their opinions seem to suggest? In short, a Miers choice in favor of originalism ought to be automatically disqualifying. Conservatives and liberals alike profess disdain for unprincipled, highly political, results-oriented judging, and, in all likelihood, that's what we would be getting. But, for those on the right who seek a dramatically more conservative Court at just about any price, a cynical declaration of Miers's originalism--in essence, a political promise with respect to Roe and other key issues--is the most they can hope for. And, if they get this much, they'll take Miers--embarrassing mash notes, stilted prose, and all.

By edward lazarus