Harriet Miers Redux

by Pejman Yousefzadeh on May 6, 2009

I really have to call shenanigans on Stuart Taylor’s recycled piece on ideal Supreme Court nominees, much for the same reason why I came out against Harriet Miers’s nomination to the Supreme Court. We really don’t need trial lawyers of the type Taylor describes on the Court because appellate cases concern questions of law, not questions of fact. The factual questions are considered settled at the trial level; the appellate courts and the Supreme Court only concern themselves with errors of law. They do not revisit the facts, and if an appellant contends that a fact finder incorrectly adjudicated a question of fact, the appellate court will give deference to the trial court, as the trier of fact. After all, the trial court, having seen and heard the evidence, is much better situated to make factual determinations than the appellate court ever could be. As such, it does us no good whatsoever to have a Justice who has cross-examined a lying CEO or conducted discovery. These are great skill sets to have for a trial attorney, but they are not skill sets that fit in the Court, since the Court decides on questions of law. (To be sure, there are at times disputes over whether a particular question concerns an error of law or an error of fact, but that doesn’t justify Taylor’s complaint that we just don’t have enough trial lawyers on the Supreme Court.)

Much of what is advocated in the piece entails having Justices make policy in ways that Taylor would find convenient and efficient. I have no problem with efficiency–God knows, the dockets could use some–but it still involves legislating from the bench. Ensuring judicial economy through policymaking is the province of Congress for federal courts and state governments for state courts.

Bottom line: If I am the defendant in a murder case, I would not want Justice Scalia to represent me. But by the same token, I also wouldn’t want Perry Mason on the Supreme Court.

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