My favorite reason to hate the prospect of Justice Miers

I had a reprehensibly good time a few weeks ago at the marriage of Peculiar and Jack. The wedding was so happy and festive, the wedded couple so handsome, and their union so affectionate and true that it was almost enough to shake the foundations of my cynical weltanschauung; but I enjoyed myself anyway. At several points during the weekend, I found myself in heated agreement with Steve Bodio about the President's nauseatingly fatuous choice to replace Justice O'Connor. As he observed, it really is a pity that the two of us can't manage to talk about pleasant, trivial things when we're drunk, like most people seem to do, but must always turn our conversation to some dire question of academics or politics. The problem that arises from this habit in my case is that I frequently find myself struggling to express some opinion--carefully formed and considered while sober--through the fumes of a bottle or two of red wine, which are vying for leg room with the other clutter in my head. I therefore have a hazy recollection of shouting repeatedly "The real reason intellectual conservatives like us hate Miers is . . . ": but I can't recall what else, if anything, I managed to express. As a belated follow-up to that conversation, I'd like to offer a reason for hating the nomination beyond the handful or so that have been commonly cited by most conservative commentators.

The one nice thing the nomination has done is to reassure me that most conservatives are not mere heedless zombies under the spell of the Bush administration. I had begun to fear that Republicans would follow W over a cliff, if it came to that. But conservatives of all stripes have gleefully begun denouncing the nomination, and the administration with it, for reasons ranging from "her nomination solely because she is an evangelical woman cheapens the very meritocratic principles the Bush administration was supposed to champion" (the National Review) to "she's so butt-ugly she'll make Ruth Bader Ginsburg the pretty one on the Court" (my friend Bronson). But one reason, and one that fits nicely with the axes I usually grind, is that Miers has never, in her long career, evinced any inclination whatsoever for serious legal scholarship.

Now, I do not mean merely that Miers has no experience with constitutional law, which is irrelevant to my ultimate point, or that she's dumb, which on a Roberts-Scalia-Souter scale she almost certainly is, but which has been widely observed. What I mean is that she has never shown a capacity for taking difficult, analytical legal issues and teasing them out into a rational order. The U.S. Supreme Court does not just meet once a year and vote on whether states can place restrictions on abortion or the Ten Commandments on public property. What seems to escape many outside the legal field (including, apparently, Bush) is that the bulk of the work done by the Court does not involve weighty moral dilemmas or simple policy choices: it's the nitty-gritty of justiciability, arcane criminal procedure, commercial law, tax, etc. Harriet Miers, with her S.M.U. law degree and apparent history of having as little to do with the law as is possible for a professional lawyer, would probably contribute very little to this less glamorous struggle.

(Those of you--probably all of you--reading this post solely out of politeness may skip the following paragraph, as it contains most of the poorly-explained legal doctrine I always need to inject into my posts.)

I'll give a brief example of the sort of opinion I hoped would be produced less frequently by the Court after Bush's nominations, before my hopes were dashed to smithereens by this latest act of cronyism (doesn't W at least have some brighter cronies, damn it?). In Mosley v. Victoria's Secret Catalogue, Inc., the Court supposedly granted certiorari to decide an issue that had been plaguing the courts of appeals for some time. Without going into too much detail, the issue was whether, under the trademark dilution section of the Lanham Act, a plaintiff has to show that his mark has been actually diluted (i.e., that he has suffered some demonstrable harm from the dilutive mark), or whether a plaintiff can win merely by showing that the defendant's activity is likely to cause damage to the plaintiff's mark. For the first position, the arguments are that the statute actually says "causes dilution," and that it would otherwise be extremely easy for the owners of "famous marks" to enjoin nearly any use of marks similar to theirs. On the other side is the argument that the statute seems, in its general purpose, prophylactic; it would therefore make little sense to require plaintiffs to wait until the damage has been done before suing. A fairly complicated issue, but one presenting pretty clear alternatives. One would think the most sage court in the land could come up with a decisive reason for going one way or the other. And, sure enough, the Court voted unanimously and decided . . . nothing. At least nothing coherent. Stevens, writing for the Court, first noted that it indeed made no sense to require a plantiff to prove economic damage before suing for an injunction. He then went on to say that the statute required proof of actual dilution somehow (without suggesting any alternatives to showing economic damage), and remanded to the poor wretched Fourth Circuit for "proceedings consistent with this opnion," as if it weren't hard enough to make the opinion consistent with itself. To top it all off, Justice Kennedy wrote a "concurrence," which reads like an argument in favor of not requiring any proof of dilution, but somehow agrees with the majority in its reversal of the Fourth Circuit.

All this just goes to show that it can be really hard to get even a bunch of career nerds like the USSC to take enough of an interest in dull topics like trademark law to develop a coherent jurisprudence; yet these issues are just as essential to the Court's role--indeed more so, I would argue, since deciding them is something that can really only be done by them, as opposed to the sexier usurpations of legislative function that the Warren Court began. It is for this reason primarily that we need smart people who love the law, not policy, on the bench.

And so, Steve, at least one of the things that I'm sure must have been running through my head as we sprayed red droplets on each other's dress shirts in our haste to make our opinions known is that Harriet Miers, no matter how she votes or makes Republicans look, can can do considerable damage just by being scholastic dead weight on a court that is already struggling to maintain a consistent jurisprudence on the myriad of dull, commonplace issues that constitute 90% of its opinions. And I do hope your shirt came out as relatively unscathed as mine.