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October 5, 2005

A lot of reading to catch up on...

I am finding the blogosphere buzz on Harriet Miers absolutely fascinating, from Stephen Bainbridge's withering attack to the array of diverse insights set out at Volokh and TalkLeft and Confirm Them.  Helpfully, the Left Coaster collects and organizes a lot of information and links in a post entitled Who is Harriet Miers?

Thanks to this post at Crime & Federalism, I got a chuckle from Feddie's suggestion about how  Miers is likely trying to brush up on constitutional law.  But, on a serious related note, consider how much reading lies ahead for nominee (and then Justice?) Miers to enable her to engage effectively with the issues that confront the High Court.  As a commercial litigator and even in her more recent roles within the administration, I suspect Miers has had little time and limited reason to keep up with much of the Supreme Court's often laborious jurisprudence.

To pick my favorite example, consider the field of sentencing.  I suspect (but would not wager) that, as White House Counsel, Miers had ocassion to read Booker.  But how about Blakely, or Ring, or Harris, or Apprendi, or Almendarez-Torres or Watts or McMillan or Williams

Shifting from the Sixth Amendment to the Eighth Amendment, I genuinely wonder if Miers has ever read Furman or Gregg or Coker or Lockett or McClesky or Herrera or Atkins.  (Again, I suspect (but would not wager) that, as White House Counsel, Miers had ocassion to read Roper.)  Of course, while on the Eighth Amendment, we shouldn't forget Solem, Harmelin and Ewing.  And let's not even get started with habeas jurisprudence.

I raise these realities not to criticize Miers, but rather to speculate about the impact of her SCOTUS inexperience when (if?) she joins the Court.  There is a lot of SCOTUS jurisprudence I have not kept up with since my law school days (and I never have to worry about attracting and serving clients).  But, as a consequence, when discussing a dormant commerce clause or First Amendment issue, I will often seek guidance from colleagues who are more knowledgeable on these subjects.  Drawing out the parallel, we might reasonably expect that a Justice Miers, at least in the short term as she is catching up on her reading, will be a follower and not a leader on a lot of subjects.

Of course, those on the right may hope, and those on the left may fear, that a Justice Miers will just follow Justices Scalia and Thomas.  But, as I have noted in post here and here, many criminal defendants will be quite pleased if a Justice Miers were to follow the paths of Justice Scalia in Blakely and Justice Thomas in Harris. (And, of course, the current SCOTUS sentencing head-count entails that criminal defendants may not even need Miers on their side to prevail on a range of future Blakely issues.)

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