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So much for Justice Althouse

Tuesday, October 11, 2005  |  posted by Hugh Hewitt

Professor Althouse is off to give “lunchtime talk to the Dane County Bar Association,” thus permanently disqualifying her from SCOTUS.

Also, this e-mail:

I am a mere lawyer, who has to work with complaints and discovery and advising clients on how to comply with the law. As such, I am apparently unqualified to discuss the SCOTUS, but I’ll try.

1. No one has the qualifications necessary to sit as a Justice:

A. The argument has revolved around Ms. Miers apparent lack of facility with constitutional questions. The conclusion is that she is unqualified.

B. This argument contains a hidden, and false premise: namely, that the SCOTUS only answers Con Law questions. However, the Court’s work concerns a host of issue which have little or no Con Law aspect: Federal Statutes, for instances.

C. The statutes at issue have practical implications for us unimportant lawyers and our unimportant clients (not everyone is as important as a Gitmo detainee). I have to tell my client how to avoid being sued for discrimination under State and Federal laws. I think Ms. Miers experience in representing corporations and in running a business could be truly informative and valuable when it comes to deciding what is the real burden on employers and employees. The same for questions about insurance and tax and federal regulations, et cetera.

D. (Broader point): What about criminal procedure issues? Sure such issues implicate the constitution, but the real question is what happens when cop meets public. What kind of practical experience do any of the justices have with criminal law?

E. In sum: Miers may have limited Con Law experience, but she has other experience which actually may be more important for the Court’s day-to-day activities. If the standard (prior detailed experience) where truly applied to all of the areas of the Court’s work, then no one would ever be qualified to sit.

2. She’s not the best:

A. There’s no such thing. There is qualified and unqualified. Different skill sets matter in different circumstances.

3. (As you said): It is not that hard:

A. It is harder than writing an opinion piece, or even having an opinion. However, it is no harder keeping track of the strands of a first amendment argument than it is keeping track of a merger.

B. In fact, keeping track of the various arguments in a real trial matter is actually more difficult. I have both argued a first amendment case before the California Supreme Court and have prepared trial cases. It was more fun to argue the first amendment. It is more difficult to organize the sprawling, moving mass of a case going to trial.

C. It took amazing sophistry for the Court to shake ‘due process’

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