One and One Half

I must beg my readers' pardon, but I am going to put in one more post about Harriet Miers. Rather than debate Miss Miers's own virtues, which I imagine you can get your fill of elsewhere, I want to discuss the voice of the Supreme Court and its effect on the creation of law.

It has been pointed out (notably by Bill Dyer) that the present, academically oriented Court tends to produce, in place of clear rulings which create strong precedents, a muddle of opinions striving for attention:

You're going to end up with a Court full of prima donnas who can't "just" concur, but instead feel compelled to write countless separate opinions. You'll often have no majority opinion, but instead special concurrences, partial concurrences, separate dissents, and partial concurrences only in Part III-D-6(f) but not Part III-D-6(g) of another's minority opinion. You'll get a Court that on the same day finds a display of the Ten Commandments constitutional in Texas and unconstitutional in Kentucky. You'll get a Court that takes up an incredibly important issue like redistricting, one that's splintered the Court in previous years, and then just leaves things more splintered when it's done. You'll get a Court that flip-flops within the space of a few years on issues involving capital punishment and what the government may or may not do in an attempt to promote morality.

Mr. Dyer focuses on the effects of this lack of clarity at the trial court level, but I would like to consider their consequences at the Federal appellate level -- and, in particular, on the Ninth Circuit Court of Appeals. That body, which has exhibited substantial creativity and determination in finding, both in precedent and in the Constitution, interpretations pleasing to itself, has been hugely enabled by the Rehnquist Court's failure to provide unambiguous standards in many cases. The Ninth Circuit is half Supreme in itself -- and it is far more liberal and far less bound by the text of the Constitution than is the true Supreme Court.

If President Bush and his advisers are aware of this problem, it would help to explain their choice of John Roberts over more academic conservative stars like Michael Luttig and Michael McConnell. Mr. Roberts may be the man most able to crystallize conservative opinion into clear and principled precedents, which would greatly narrow the ambiguous region from which the Other Half derives its power. The choice of Miss Miers, who is apparently not a prolific writer and thus more likely to contribute to consensus than to concur separately, appears as a force multiplier for this strategy.

Finally, there is the issue of Miss Miers's age. She is old and will soon slide into senility and retirement (hopefully not in that order). This behavior, as the software boys say, is by design. President Bush believes in an emerging Republican majority, in a country which is becoming more conservative. In fifteen years' time, he expects that the likely replacements for Miss Miers will be more, not less, conservative. In this context, why should he give lifelong power to a youngster?