October 24, 2005
More Questions to Ask Harriet Miers
UPDATE: Some suggested cases below!
I just thought of something that might actually be valuable to the confirmation process, at least to the extent that members of the Senate bother to listen to constructive suggestions.
I hope we all, Loyalists and Rebel Alliance alike, that Republicans should not stoop to asking Miss Miers how she plans to vote on various pending cases. But on the other hand, as George Will noted -- broken clock, right twice a day (or once if it's military time) -- it would be very useful to ask her questions to elucidate her judicial philosophy.
So I had a brain storm. Not quite Hurricane Delta, but maybe something better than a tropical depression: what historical cases can we find -- none dating after 1960 (year arbitrarily picked for personal, sentimental reasons related to someone I greatly love) -- that would illuminate the judicial philosophy of any nominee who analyzed them?
I suppose you could start with Marbury v. Madison, but that would be silly, since I think any contemporary nominee supports judicial review, at least in theory. But how about comparing Plessy to Brown? Or that case (whose name I always forget, not being a lawyer) that held that even wheat grown for personal consumption could be regulated under Congress's interstate-commerce grant of authority... would a Court nominee's thinking on that case be illuminating?
There must be a number of other cases that Miers could analyze without running afoul of the prohibition against prejudging -- the cases arising out of the Japanese internment? early free-speech cases? some of the "incorporation doctrine" cases? -- that would tell us something significant about how she thinks. (Ideally, since I want to hear a considered opinion, rather than a game of gotcha, I'd prefer the list be given her in advance, so she could research and ponder them.)
But I'm not a lawyer, so I certainly cannot compile a list of the top of my triangular head of the most important, most illuminating cases: can some of you blogospheric attorneys please offer up suggestions?
If you can explain its importance to a non-lawyer such as me, I'll update this post to include a list (with links) at the bottom; but if you just say the name and nothing else, I will ignore it, since I've probably never heard of it -- I have absolutely no intention of briefing these cases myself!
I call upon you, Patterico -- and upon Bill Dyer, John, Scott, Paul, Glenn, Hugh and any other attorneys or law profs. And even non-lawyer deep thinkers about constitutional issues... Captain Ed? Please either comment here or on your own blogs with a trackback here, and I'll compile the list and try to figure out how to get it to J-Com senators who might find it useful.
(Every time I do this, I get a good comment from Pat, very occasionally something fascinating from Beldar, and everybody else just ignores me. But, ever the optimist, I shall try and try again....)
Thanks!
UPDATE: All right, our first batch of cases to ask Miss Miers about has come in. Fort Wit:
- Griswold v. Connecticut, 381 U.S. 479 (1965) - the case that found a right to privacy emanating from the penumbra of various other rights; this case was suggested by both Captain Ed and also commenter Diffus. (Technically, this falls outside my arbitrary line, and it's a bit too contemporary and likely to come up again in subsequent cases... so this one may be out).
- Plessy v. Ferguson, 163 U.S. 537 (1896); Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) - the first found that public schools could be segregated on the principle of "separate but equal;" the second overturned the first, finding that no such scheme was possible, and that the Civil Rights Amendments required desegregation. Captain Ed (in the same post as supra) seconded my suggestion of these above.
- New York Times Company v. Sullivan, 376 U.S. 254 (1964) - this case found that in cases of libel or slander involving public figures, the standard that had to be met was "actual malice" (I thought "reckless disregard for the truth" was also a possible standard... do I misremember?) Suggested by Patterico, in the comments. (Also inside the "red line" of 1960.)
- Wickard v. Filburn, 317 U.S. 111 (1942) - the "wheat" case I mentioned above; Unabrewer has been suggesting this one as a question since long before this post!
- United States v. Miller, 307 U.S. 174 - Miller was convicted of possessing a short-barreled (sawed-off) shotgun; he raised the Second Amendment, but the Court ruled that no evidence had been presented that this type of weapon was normally found in army or militia units, so was not covered by the right to keep and bear arms. That is, they held that the RTKBA covered all military style weapons, presumably including so-called "assault weapons."
TriggerFinger suggested this one, and it's a good suggestion, as this case has been wildly misconstrued by virtually every appellate court that has cited it since it was decided in 1939: typically, appellate courts wrongly claim that the Court held that only members of the National Guard qualified as militia, and the Second Amendment applies only to them. The Court itself revisited this issue in 1990 in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), clarifying in dicta that "militia" standing of the gun owner has no bearing on the right. - Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) - a very bad decision decided very badly; lots of juicy constitutional issues in this case, only the second time the Court had struck down a federal law as unconstitutional... and in my mind, the prototype for judicial activism of the worst kind. Suggested by moi.
Great start, guys -- let's get some more folks to weigh in on this one!
(Some have misunderstood the exercise: it's not just to think of questions, but specifically landmark Supreme Court cases from long ago... so that Harriet Miers can analyze them and clarify her judicial philosophy without worrying about compromising her ability to judge future cases that come before the Court.)
Hatched by Dafydd on this day, October 24, 2005, at the time of 5:44 PM
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» Useful questions to ask Miers... from TriggerFinger
The Big Lizard has come up with a way to maybe get some useful answers out of Miers
about her judicial philosophy: ask her for her opinion on specific
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Tracked on October 24, 2005 8:25 PM
» What To Ask Miers? from Captain's Quarters
Dafydd ab Hugh issues a challenge to the blogosphere, calling on bloggers from all sides of the Harriet Miers nomination to come up with questions for Miers' confirmation hearings. I think this is an excellent idea, especially for those who... [Read More]
Tracked on October 24, 2005 9:15 PM
» I oppose the Miers nomination. from Small Town Veteran
NZ Bear wants everyone in the Ecosystem to take a stand on the Harriet Miers nomination so he can track the pulse of the blogosphere here. NZ, I oppose the Miers nomination. I've been leaning strongly against the Miers nomination [Read More]
Tracked on October 24, 2005 11:46 PM
» I oppose the Miers nomination. from Small Town Veteran
NZ Bear wants everyone in the Ecosystem to take a stand on the Harriet Miers nomination so he can track the pulse of the blogosphere here. NZ, I oppose the Miers nomination. I've been leaning strongly against the Miers nomination [Read More]
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» Questions for Miers from The Unabrewer
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Comments
The following hissed in response by: RBMN
They always ask about the obvious landmark decisions. Miers will be ready for those. They need to get down into the foundational cases (that most non-lawyers have never heard of) to see if she's really done some thinking about constitutional law. If you remember Roberts talking about this, landmark decisions are usually built slowly from the ground up. The foundation shifts with repeated testing of the law, and the framework of the house ends up shifting a bit too. We need to find out if Miers has ever been down in the basement and looked around.
The above hissed in response by: RBMN ![[TypeKey Profile Page]](http://biglizards.net/blog/nav-commenters.gif)
at October 24, 2005 6:13 PM
The following hissed in response by: KarmiCommunist
Two more questions, Lady Harriet...
1) America is at War...Treason, Subversion, Espionage, Insurrection, Rebellion, and Sedition show up in the form of the Press, and in some cases...the leadership of the Democrat Party. Will you ignore such if such charges are brought before You???
2) Three days into Iraq, and Mainstream Media starts claiming that "American Troops are bogged down". My charges against the Press and Press members who reported such shows up in front of the Supreme Court. Would you be willing to stand for the Constitution, or simply ignore my charges???
KårmiÇømmünîs†
Dualistic, Non-Dualistic, Karmic, "Jail House" Lawyer, and current Dualistic, Non-Dualistic, Karmic, "Jail House" Prosecutor.
The above hissed in response by: KarmiCommunist at October 24, 2005 7:56 PM
The following hissed in response by: KarmiCommunist
Dafydd,
Since you have clearly asked for legal advice at least twice, whilst i have given it free once, you now owe me $1,000,999.99.
Don't make me take you into Court in order to collect...so to speak of fair requests for advice and fair prices for such requests.
Karmi
The above hissed in response by: KarmiCommunist at October 24, 2005 8:06 PM
The following hissed in response by: Patterico
Off the top of my head:
She is certain to pay plenty of lip service to the idea that judges should not read their personal preferences into the Constitution, and should hew closely to the text. I would ask her whether she believes that the decision in New York Times v. Sullivan, which created a new standard ("actual malice") for establishing libel, is an example of proper constitutional adjudication -- and why.
It's hardly a "gotcha" question, since Sullivan is a landmark case. And there is a very good argument to be made that creating this standard was proper. But can she articulate that argument? And does she agree with it?
If she were to knock one like that out of the park, and give a Scalia-like explanation as to why Sullivan is required by the 1st Amendment, though the Constitution says nothing about actual malice, I'd be favorably impressed.
There's a million things you could ask. That's just one that leaps to mind.
The above hissed in response by: Patterico at October 24, 2005 9:43 PM
The following hissed in response by: Diffus
The constitutional right to privacy is not expressly enumerated. Instead, the Supreme Court ruled in Griswold that a right to privacy is one of a penumbra of rights not explicitly defined but nonethless emamating from the Constitution. Do you believe that there exist more such rights in the Constitution, not expressly defined, but emanating from that document? If so, what might they be? Griswold specifically referred to apenumbra of rights emanating from the First Amendment. Does a penumbra of rights emanate from any other amendment, say, the Second, or, for that matter, any other clause of the Constitution?
The above hissed in response by: Diffus at October 24, 2005 9:44 PM
The following hissed in response by: The Unabrewer
The wheat case you mention is Wickard v. Filburn, 1937 I believe. I've mentioned in comments elsewhere that I'd be curious to hear various potential nominees weigh in on that one.
The above hissed in response by: The Unabrewer at October 24, 2005 11:54 PM
The following hissed in response by: deignan
This is too easy.
There are only Two Questions for Harriet Miers that need to be answered to clear this whole sordid mess up.
The above hissed in response by: deignan at October 25, 2005 5:29 AM
The following hissed in response by: Dafydd ab Hugh
Deignan:
Paul, anybody could give a great answer to those two questions. We need something a lot more specific.
Dafydd
The above hissed in response by: Dafydd ab Hugh at October 25, 2005 5:48 AM
The following hissed in response by: Patterico
The term "actual malice" is a term of art that doesn't mean what it seems to. It means with knowledge of the falsehood, or with reckless disregard for the truth of the assertion.
The above hissed in response by: Patterico at October 25, 2005 6:06 AM
The following hissed in response by: deignan
Ok, then it should be easy for Miers. She could even answer them before the hearings.
Inquiring minds want to know.
The above hissed in response by: deignan at October 25, 2005 9:45 AM
The following hissed in response by: Kenneth Ashford
How about Bush v. Gore? Those legal issues are unlikely to rear their head again (we can only hope).
In particular, she should be asked to comment on the portion of that court's opinion which suggested that their decision was NOT to be binding legal precedent. Regardless of the subject matter, what does Miers think about Supreme Court establishing legal "precedents" that are "for this day and this train only"?
Again, the objective isn't to force her to decide about the *substance* of the Court's decision, or the political ramifications of it. But it would be interesting to hear her views on the *process*.
The above hissed in response by: Kenneth Ashford at October 25, 2005 11:38 AM
The following hissed in response by: Dafydd ab Hugh
Patterico:
The term "actual malice" is a term of art that doesn't mean what it seems to. It means with knowledge of the falsehood, or with reckless disregard for the truth of the assertion.
Heh... maybe in the future, you should translate those "terms of art" into real English -- unless you want me to start talking about functionals, iterative solutions, and why an unbounded, finite plane is topologically identical to a sphere!
Come on, give her some more cases... aren't there some juicy ones from the late forties and the fifties where the Court, after FDR's appointments, finally started finding the more controversial elements of the New Deal constitutional?
Or for that matter, what about the reasoning in Dred Scott? Can't we add that to the list? I've always been bothered by that ruling even taking into account the sentiment of the day... I don't know enough law to say whether it is legally considered judicially activist when they teach it in Con Law (do they teach it in Con Law?) But I, as a lay person, define judicial activism as whenever the judge, not the legislature, settles the basic principle of policy, rather that simply deciding whether the law is forbidden by some article of the Constitution.
Chief Justice Taney thought he was an originalist, asserting that the basis of the decision was that the Framers considered blacks to be "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." But on the other hand, Justice Curtis pointed out that these same Framers had no objection to the many freed slaves in various states being considered free citizens.
In any event, the Court first held that it had no jurisdiction -- and then went on to rule on the merits! It was worse than Roe! (In Roe, the Court first held that they couldn't determine when the foetus became a person -- and then determined when the foetus became a person. Yeesh!)
Maybe it's too easy a case? Still, I'd like to hear why she objects to it: the deciding factors for me are that the Dred Scot decision overturned federal laws higgledy piggledy because six justices simply didn't like them (the very essence of judicial activism, and that they took it upon themselves to decide the fundamental principle of whether blacks could be citizens -- and to hell with what Congress had decided.
There was nothing in the Constitution that could reasonably have been interpreted to conclude that Congress was forbidden from declaring that slavery was illegal here, there, or anywhere it chose. Indeed, the only prohibition on Congress's authority in this matter, Article I, section 9, paragraph 1, was limited to the slave trade (not slavery itself) -- and in any event was term-limited and had expired. At absolute worst, the Court could have held that the federales, the free state of Illinois, or the free territory of Minnesota owed compensation to Irene Emerson.
I'm adding Dred Scott to the list on my own... I hope the lawyers here don't think I'm nuts.
The above hissed in response by: Dafydd ab Hugh at October 25, 2005 1:51 PM
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