Saturday, October 08, 2005

Miers for Tax Court, SEC, Federal Circuit?

I must admit that the drumbeat from the White House, its defenders, and a fair number of lawyers that Harriet Miers is a good lawyer and therefore qualified to sit on the Supreme Court is getting under my skin. It reminds me of the classic law school saw that any professor can teach any class if necessary. (That, by the way, is true, although we tend to make exceptions for a few specialized courses.) But is sitting on the Supreme Court no different than teaching Torts to first year law students?

What would have happened if the President had nominated Miers to sit on the Tax Court, the Securities and Exchange Commission, or the United States Court of Appeals for the Federal Circuit (which has jurisdiction over patent cases and a few other specialized topics)? Would the same people claiming she is qualified for the Supreme Court have said she was qualified for these positions? I suggest they would not.

So, what is their message? Constitutional Law is not complicated, and it can be mastered on the fly by any capable lawyer.

For anyone who has spent a career studying Constitutional Law, the notion is offensive and naive. A tax novice on the Tax Court would wreak havoc on Tax Law. Assurances that she would vote like another well-respected tax court judge would not fix the problem. A Constitutional Law novice on the Supreme Court is even more dangerous. Constitutional Law is a complex blend of text, history, precedent, and policy. One who deals seriously with the issues recognizes how difficult it is to anticipate the impact of decisions and assess their potential for unintended consequences.

The impact of a Supreme Court justice is broader than that of a judge on the Federal Circuit, and the potential for damage to the nation from an unqualified justice is greater than with an unqualified SEC commissioner. We deserve not to have a justice undergoing on the job training in Constitutional Law.


  • At 1:29 PM, Blogger ScurvyOaks said…

    This is a truly great argument. I'm a tax lawyer, and I don't think that any tax lawyer would consider Miers qualified for the Tax Court.


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