Thursday, October 20, 2005

Miers as a business jurist?

In the Wall Street Journal today, Ronald Cass and Ken Starr have an op-ed praising Harriet Miers' business litigation background and imply that her experience with business issues will enable her to be a credit to the Court.

Prof. Matthew Franck eviscerates their argument in the post linked above. Some excerpts:

The body of the piece begins with this sentence of pure buncombe: "As teachers and writes on constitutional law, we would not for a moment downplay the importance of constitutional issues." That begins a sixteen-paragraph effort to do just that. But worse, [their argument] all but concedes that Ms. Miers is not ready for prime time in constitutional law.

Anyway, Cass and Starr can't manage to talk about their chosen subject of business law without regularly straying into the constitutional dimensions of the relevant case law. Whether high punitive damages violate due process, whether the recent extension of copyrights by Congress was within its constitutional authority, whether last summer's Kelo ruling on eminent domain rested on a good or bad reading of the takings clause — these are the sorts of cases where Cass and Starr think Miers will bring some expertise to bear. (Perhaps they really believe this guff — they construct one of the weakest arguments I've seen against the Kelo decision, precisely because they approach it from an economic perspective, not a constitutional one.)

So the realms of "business law" and constitutional law are not so distinct. What about other, non-constitutional problems in law? Cass and Starr cite some other dimensions of "business law," like jurisdictional questions and telecommunications, where the relevant skill of the judge is his well-trained eye for statutory construction — a subject-neutral form of legal acumen that is more likely to be developed by deciding or at least arguing many federal appellate cases than by representing businesses in their everyday affairs.

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Whether they like it or not, Cass and Starr have made the case against Miers stronger than the one for her.

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