Sunday, October 09, 2005

Miers for the Supreme Court: a Soccer Theory

I have a conspiracy theory about the Harriet Miers nomination. I think it's entirely possible that Bush really does consider her to be uniquely qualified to take part in shifting American jurisprudence, rather than just defensibly qualified in the way that Beldar defends her. If I understand the Beldar theory, Miers

  • is well-qualified, maybe within the top thousand candidates
  • offers a useful kind of diversity
  • is someone that Bush can trust, based on long friendship. He thinks he knows who she is and how she feels about the role of law, and all that.
Perhaps that's all that there is, perhaps it's all that should be looked for. American law is in a sense all about getting representation for each viewpoint, and so it's a good thing to make sure that different viewpoints get on the Court. Sure, it's likely that he trusts her and considers her to be reliably "conservative" to the extent that Bush is himself a conservative (I don't see why realio-trulio conservatives should find this reassuring, any more than libertarians, but Bush got re-elected and it's his option.) But I have another thought. I'm looking at PowerLine's saying that
any admiration she may harbor for Warren Burger's work in judicial administration is almost completely irrelevant to her prospective service.
Isn't it's possible that this is totally wrong? Isn't it possible that Bush and Roberts have already agreed to have a real manager like Miers take a substantial role, perhaps informally defined, within Roberts' sphere of judicial administration? If Bush wants to manage the judiciary from within, maybe he actually went looking for a high-level manager -- one that he could trust, and who would be empowered by Roberts. In that case, her management background is central, not just a kind of viewpoint diversity.

Think about it -- the Supreme Court as described to non-lawyers like me has the structure of a kindergarten soccer team, with players who basically run around and either cooperate or get in each others' way, plus one (the keeper) who tries to remember a specific role. They are interchangeable except in the sense that one might be more aggressive, another might be better coordinated, and so on. (Supporting personnel, such as parents or law clerks, may get specific roles, but not the players.) Back when I was in computer science graduate school, in the 70's, much was written about Harlan Mills' "Chief Programmer Team" with the Chief Programmer (and an assistant of similar skills), the Language Lawyer, the Librarian, and a few others. A team should generally have different kinds of people on it, doing different kinds of things in a non-interchangeable way.

Speaking roughly, Bush has Scalia and Thomas; he has Roberts; now he wants Miers. Maybe he thinks Miers as a manager gives Roberts a better chance of turning those four votes into five on at least some cases, and maybe he thinks Miers as a judicial administrator gives Roberts a better chance of changing the way that America does its judicial business.

Or then again, maybe not.


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