A Chequer-Board of Nights and Days

"Murder boards" are the practice sessions that are used to either prep an advocate for oral argument in court or practice sessions that are used to prep a judicial nominee for hearings before the Senate Judiciary Committee. Those of us who look upon the Miers nomination with more than a little bit of dismay--dismay that is augmented by her lack of expertise and background in Constitutional law--read articles like this one and nod our heads in sad agreement:

In a room at the Justice Department this summer, Harriet Miers listened silently as young lawyers playing senators threw question after question at John G. Roberts Jr. at a secret practice hearing, or "murder board." She watched as he rattled off Supreme Court cases and, as one participant put it, "artfully dodged" inquiries he did not want to answer.

Now it's her turn. After an unexpectedly rocky first week, Miers's nomination to the Supreme Court appears likely to hinge on her performance before the Senate Judiciary Committee at hearings that probably will open early next month, according to strategists in both parties.

The question is how much she learned from Roberts's murder boards and how much constitutional law she can master in cramming sessions over the next several weeks.

Unlike Roberts, who made a career arguing before the high court and commands the nuances of obscure rulings, Miers never practiced that sort of law, nor did she, in her various behind-the-scenes roles at the Bush White House, demonstrate the sort of skill at public performance that Senate hearings demand.

Given her lack of background, lawyers and politicians predict, her hearings could easily turn into a stump-the-nominee contest. And following Roberts, as Sen. Sam Brownback (R-Kan.) put it last week, will be like "following Elvis."

"The hearings for her are the defining moment," said Kenneth M. Duberstein, the former Reagan White House chief of staff who shepherded two Supreme Court nominations through the Senate for President George H.W. Bush. "This is prime time, when America really gets its first look at her and the first time they'll really be listening."

Sen. Charles E. Schumer (D-N.Y.), like Brownback a Judiciary Committee member and expected to be one of Miers's tougher interrogators, said her testimony could determine the outcome. With conservatives disgruntled about her selection and liberals disinclined to support any Bush nomination, Miers faces the prospect of tough grilling from both sides.

"These hearings are going to be crucial -- more crucial than any in a long, long time," Schumer said in an interview. "It's not going to be an easy hearing for Harriet Miers. Roberts was sure of his right flank, and she can't be. And Roberts, of course, is brilliant. No one will be as good. He spent his life doing this. Harriet Miers is a very capable lawyer but is not someone who has spent her life litigating before the Supreme Court."

Bruce Fein, a Republican lawyer who helped prep Sandra Day O'Connor for her confirmation hearings in 1981, put it more bluntly. "It's almost like putting you and me into MCI stadium and saying, 'Play against Michael Jordan at his peak,' " he said. "That's what it's going to be like up there."

While it may be unfair to have the Roberts standard out there with which to judge future nominees, the fact is that the standard is out there and the Bush Administration's new nominee will look relatively bad in comparison to the new Chief Justice. And the supply of rhetorical traps that may trip up Harriet Miers are almost endless:

As a participant in Roberts's preparation, colleagues said, Miers presumably gained not only greater facility with issues likely to be on the agenda but also benefited from helping to refine and revise answers to the toughest questions.

"The great advantage she has is she has the Roberts transcript to study," said H. Christopher Bartolomucci, a former White House associate counsel who participated in a murder board with Roberts. "Not only is that a forecast of the kinds of questions she's likely to get, she can see how they can be answered."

But others suggested the senators would take a different tack with Miers, seeking to demonstrate her unfamiliarity with cases that did not come up during Roberts's hearings.

"If I was a Democrat and I wanted to destroy her candidacy, I'd go to constitutional law professors and experts and get the 60 key Supreme Court decisions," Fein said. The committee members could then go through the list and ask her, " 'Have you read this case from beginning to end?' And when she says for the 59th time, 'No, I haven't,' I'd say, 'Why are you going to be on the Supreme Court?' "

Regarding this matter, I have to take strong issue with Hugh Hewitt, who downplays the need for a grounding in Constitutional law:

The other argument is a subdivision of the :not smart enough" argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.

From this I especially dissent. Simpl put: It isn't that hard. It is wrong to argue that it is so. It is anti-democratic to argue that it is so. The Left wants you to believe it is so, and the center-right should resist that.

For ten years I have begun a year of ConLaw teaching to my class by asking who among them plays golf. We then launch into a discussion of the rules of golf, which can be quite obscure to anyone who has never played the game, and even surprising to many who have but who have neglected the finer rules such as grounding a club in a trap etc.

The I make two points. First, the rules are extensive but easily learned. Second, rules changes are troublesome and greatly contested.

ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observors. Further, some of our justices have spent quite a lot of paper and ink arguing absurd theories that tell us "A" is not "A," with the intent of persuading not the people but other judges of such propositions that the Framers and their friends, who approrpiated money to Catholic missionaries that they might go and convert the Indian tribes intended to ban "under God" from the Pledge.

I don't know why the Left necessarily wants us to believe that Constitutional law is a challenging topic. Indeed, one of my criticisms of the theories of Constitutional interpretation most favored by the Left is that they put new wine into old bottles--an approach that is not intellectually challenging in the slightest. Proclaim that we have a "living Constitution" (whatever that means), allow the judge to imagine himself/herself as a legislator and then write into law what one would want a legislator to be able to dictate unto society via fiat. Not hard at all. By contrast, originalists and strict constructionists oftentimes have to forego their own policy preferences in light of what they read the law as saying--cf. Scalia's decision to join the majority opinion in Texas v. Johnson, a decision he said did not comform with his policy preferences when he spoke to my law school during my first year, but one he felt compelled to make through his reading of the Constitution. See also the common concession made by pro-life originalists and strict constructionists, who say that if Roe v. Wade and Planned Parenthood v. Casey are ever completely overturned and the states enact provisions in their own constitutions respecting abortion rights, those provisions would have to be respected by a Supreme Court that would leave them alone and likely not entertain any case challenging them because it is not likely that those cases will have federal questions accompanying them.

To hold to the originalist/strict constructionist theories of Constitutional interpretation is far more intellectually challenging and requires far more scholarship than merely pouring new wine into old bottles. It requires first and foremost a careful reading of the plain text of the Constitution. It requires scholarship that delves into the intent of the Framers by analyzing the Ratification Debates at the Constitutional Convention and The Federalist. And it requires that those who engage in this activity have some grounding in it. Harriet Miers--for all of her formidable legal talents, does not have that grounding.

I agree with Hewitt that the rules of Constitutional law can be easily learned. But note his comment that "rules changes are troublesome and greatly contested." He makes this point about golf, but it applies as well to Constitutional law which is "subject to much more frequent changes" than are the rules of golf. Quite so, which means that those who fight over whether or not there will be changes and what kind of changes might be implemented will have to possess the savvy and background to wage those battles successfully. And there is a vast difference between Harriet Miers's ability to do that and the ability of John Roberts, Janice Rogers Brown, Michael Luttig and Michael McConnell (just to name a few) to be able to do that. Harriet Miers is simply not in their class.

It is noteworthy that Hewitt cites to Robert Bork to buttress his pro-Miers argumentation. Perhaps he would care to take note of this.

UPDATE: My apologies. As Professor Hewitt notes in an update to his post, he did acknowledge Bork's opposition to Miers and thererfore does not need me to call upon him to do so.