Wednesday, October 05, 2005

Liberal Politics & Cronyism & Persuasive Legal Interpretation

It is interesting, revealing, discouraging, and, yes, disgraceful to see that even liberal, tub-thumping, and moralizing politicians such as Senator Schumer seem not to mind that Miers is an undistinguished nominee to the Supreme Court. In his initial press conference Schumer effectively said it matters not that Miers is Bush's crony. All that matters to Schumer, it seems, is that Miers vote the "right" way as often as possible.

Fie on both of your houses, on (some of) you Democrats and on Republican Bush-sycophants! Whether we like it or not, in our constitutional scheme a Supreme Court Justice must have some of the qualities of both a philosopher king and a Biblical scholar. The Supreme Court leads not only and not even primarily by reason of its coercive legal authority. The Supreme Court leads in very significant part by reason of the lucidity and the persuasiveness of its pronouncements.

Although Miers cannot be called one of the country's preeminent private lawyers, she did have an impressive record in private practice. But nothing in her record attests to her ability to explain her vision of American constitutional principles to other people, either to lawyers or to the country as a whole. (Indeed, nothing in her record suggests even her ability to divine, or infer, plausible constitutional principles from the text, history, and philosophy of the U.S. Constitution.)

Harriet Miers is not a street cleaner. She is unquestionably intelligent. It also appears that she has been a zealous and effective advocate for her clients. But, my dear Senators, the question now is the composition of the Supreme Court. Not every intelligent person, not every canny person, and not every successful legal practitioner is qualified to prescribe and explain the legal rules that constitute the foundation of the American system of government.

Tuesday, October 04, 2005

A Small Circle of Friends

The Hon. Harriet Miers once described George Bush as the most intelligent man she had ever met. One presumes that Ms. Miers has a very small circle of friends and acquaintances.

The Judicial Philosophy of the Hon. Harriet Miers

Harriet Miers' judicial philosophy is plain. When introduced by the President, she said she is in favor of strict construction of the law. The meaning of "strict construction" is plain. Isn't it?

Well, perhaps not.

Let's see if we can clarify her position. Let's apply Miers' interpretive strategy to "strict construction." Isn't that fair?

The first step is to take the words "strict" and "construction" as written (or spoken?).

The second step is (isn't it?) to take words in their ordinary sense -- their common sense sense, so to speak.

Well, then, the third step is clear: If judges are to avoid putting themselves into the words of the law -- and they are to follow the words of their law rather than their personal and subjective views of the meanings of those words --, they should turn to dictionaries and thesauruses (thesauri?) to ascertain the ordinary meaning of words. Right?

Well, then, let's use that method now.

[I leaf through my thesaurus.]

Can "strict" mean "harsh" and "construction," "fabrication"? So Miers favors harsh fabrication of the law? Mmm, I don't want to use her private intentions to construe her words, but, still, this -- "harsh fabrication" -- doesn't sound quite right.

[I leaf through my thesaurus again.]

Aha! I have it! By "construction" she means "interpretation" and by "strict," she means "crabbed." So Miers favors a crabbed interpretation of the law. A strict construction of her comments proves this.


While blogging here, I just heard President Bush say (in a news conference) that Miers shares his judicial philosophy. I confess I didn't realize that Bush has a judicial philosophy. Is it originalism? Does he favor the Court's use of the evolving standards of civilized nations to interpret the Constitution? Is Bush in favor of a natural law approach to the Bill of Rights? Well, time will tell, more or less. Yes? No?

Miers: Harold Carswell Reincarnate?

Senator Roman Hruska, a Phi Beta Kappa graduate of Creighton University, said:
Even if he [Carswell] was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there.
Warren Weaver, Jr., Carswell Attacked and Defended as Senate Opens Debate on Nomination, N.Y. TIMES, March 17, 1970, at 21.

Sunday, October 02, 2005

The Death of Innocence

The Supreme Court recently agreed to review the decision of the South Carolina Supreme Court in a capital case, State v. Holmes, 605 S.E.2d 19 (2004). The Court agreed to consider the following question:
Whether South Carolina's rule governing the admissibility of third-party guilt evidence violates a criminal defendant's constitutional right to present a complete defense grounded in the Due Process Confrontation, and Compulsory Process Clauses?
See Holmes v. State, 2005 WL 770655 (March 31, 2005)(petition for writ of certiorari) and Holmes v. South Carolina, -- S.Ct. --, 2005 WL 770216 (Sept. 27, 2005)(granting petition for question stated above).

Holmes raises a variety of issues. Some of the issues in the case involve the razzle dazzle of forensic science, including DNA evidence and palmprint evidence. But such razzle dazzle is peripheral to the main issues presented by Holmes' successful petition for Supreme Court review; the important issues are quite traditional and have little or nothing to do with technology.

Try as it might -- and try it probably will -- the Supreme Court will not be able to entirely avoid two broad questions:

1. What is the relationship between the due process guarantee of fair trial -- which, the Court has said or suggested, encompasses a guarantee of trial rules and procedures that are likely to produce a high degree of factual accuracy in criminal trials -- and nonconstitutional rules of evidence. (Some members of the Court may fall prey to the temptation to refer with scorn to the proposition [advanced by whom?] that the due process clause constitutes a code of evidence.)

2. Does the due process guarantee of proof beyond a reasonable doubt have any meaning in the absence of constitutional rules guaranteeing that an accused will have an opportunity to submit evidence of innocence if such evidence meets some threshold of probative value? (Some members of the Court may fall prey to the temptation to rely again on the hypertechnical argument that the due process guarantee of proof beyond a reasonable doubt standard speaks only to the way that the trier of fact should evaluate admissible evidence, and not to the question of the kinds of exculpatory evidence that must be admitted in a criminal trial. [The theory here is: The scales are heavily tilted against the prosecution but the reasonable doubt requirement does not prohibit the prosecution from preventing the accused from placing some of his heavy stones on the scales of justice.])

Other grand issues -- even broader than the two I have just mentioned -- are presented by Holmes. But I will restrain myself and I will not mention them now. But I feel compelled to mention one additional question. Holmes does arouse (in my breast) one nagging suspicion or question:
What is the true reason for the persistent tendency to impose sharp limitations on attempts by criminal defendants to show their innocence by introducing evidence of the guilt of third persons? Are these limitations imposed to avoid the waste of time and resources? Or do the restrictions on such evidence grow out of the fear that juries will often -- too often -- find such evidence persuasive?
But if the last reason is the true motivation for restrictions of third-person guilt, is the fear justified? Why should jurors have any more difficulty assessing this sort of evidence than they have assessing any other sort of exculpatory evidence?

The suspicion that juries will fall prey to manufactured evidence of third-person guilt is puzzling: juries as well as judges can and will use their common sense and their ingrained skepticism when they evaluate "admissions" of guilt by jailbirds and other suspicious characters. So what accounts for the unusually stringent limitations on such exculpatory evidence?

Is the persistent suspicion of evidence of third-person guilt somehow rooted in an unspoken belief that assessment of such evidence normally involves after-the-fact assessments of failure to investigate and that such post hoc assessments of whether an investigative road not taken should have been taken are very, very difficult, so difficult that triers such as jurors will make too many mistakes about such questions?