Harriet Miers

October 9, 2005 | 127 comments
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Last year, on November 2, I was still undecided about whether to cast a vote for George Bush. I had decided not to vote for John Kerry, so my decision was between a vote for George Bush and a protest abstention. That afternoon, I visited the polling place, and I recount my experience here:

I skipped the portion of the ballot with the presidential candidates, and marked my choices for the other races. Then I stared at the line for Bush-Cheney. Five minutes I stood there and stared. I recounted a mental list of issues — including, importantly, Chief Justice Rehnquist’s bad health — and ultimately decided that my preference for Bush over Kerry was strong enough to overcome my inclination to register a protest. I voted for Bush.

The process that led me to cast that vote was a long one. At the end of last September, I publicly declared my intention to abstain here, and the reaction was immediate. Matt Evans wrote: “It’s our religous duty, it seems to me, to figure out who is better. Being weary shouldn’t be an excuse. Being a law professor, you must have ideas about what makes a good justice. The next 30 years of Constitutional law may depend on which candidate wins the election, and one of the candidates will pick better justices than will the other.”

With the nomination of John Roberts, I felt that my vote was vindicated. With the nomination of Harriet Miers, I feel profoundly disappointed.

On Conglomerate, I have been Harriet-blogging for several days, attempting to explain more fully my reasons for advocating her withdrawal as a nominee. Here is my first bite at the apple:

My support for withdrawal is based on the assumption that no new evidence will be forthcoming. If Bush knows something the rest of us don’t, by all means proceed with the hearings. What the rest of us know is that she appears to be an able administrator, which might be an important skill if she were being nominated for Chief Justice, but she’s not. (Notice that the positive spin on the “Warren” comment is that she meant to refer to “Warren Burger” and that she admired him for his administrative prowess. That’s the positive spin!)

What we would like to be surprised to learn is that she has thought deeply about the Constitution and judging and that she has the capacity for intellectual leadership in connection with a right-of-center world view. If she has these things, plow forward. But if this is just about getting the right votes — and I suspect this is the case — end it now. For me, the controversy is not about whether she went to Harvard or Yale — I prefer Chicago grads, but that’s really beside the point — it is about whether she is able to articulate a clear vision of the Constitution that comports roughly with my own. That’s why I plugged my nose and voted for George Bush rather than sitting out the last election. He promised that, and by all appearances, he has failed to deliver.

Today, I read EJ Dionne’s WaPo column entitled “Faith-based Hypocrisy,” which takes Bush to task for using Miers’ evangelical faith as the primary selling point for her nomination. Unlike some, I am comfortable with the notion that religion matters here, but I resent being told that I have to trust President Bush on this rather than being given a candidate who has enough of a record to allow me to make my own judgment.

127 Responses to Harriet Miers

  1. Guy W. Murray on October 9, 2005 at 11:42 pm

    Gordon, for me the last election was an easy vote (I went with the other guy), probably for all the opposite reasons you cited, with the exception of the Supreme Court. I too was deeply concerned about the direction of the Court. I also felt then, that Mr. Bush, as George Will has recently opined:

    “[H]as neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution . . . Furthermore, there is no reason to believe that Miers’s nomination resulted from the president’s careful consultation with people capable of such judgments.”

    I too was heartened, and pleasantly surprised at Justice Roberts’ nomination, and eventual confirmation. While I have never supported Mr. Bush or his policies, I felt he had actually nominated a very good candidate for the position of Chief Justice. I have always felt that as long as a president nominates one whose experience and overall qualification is commensurate with the office, the Senate should, in conjunction with their “advice and consent” role confirm that nominee; however, in this case, Ms. Miers’ nomination should either be withdrawn, or the Senate should vote against this nomination, grounded in Hamilton’s Federalist Number 76.

    I’m curious about your religion comments. Why does religion matter? Is there a constitutional basis for your belief, or does it stem from an LDS perspective of law, government, etc?

  2. Gordon Smith on October 10, 2005 at 12:04 am

    Guy, My comment about religion was inspired in part by this comment from Richard Land on Meet the Press:

    I think that John Roberts’ devout Catholicism and Harriet Miers’ strong evangelical beliefs should be irrelevant–irrelevant–when it comes to judging cases before the Supreme Court. In politicians, in governors and senators and congressmen, it’s very important, and they have a right to bring their faith convictions to bear on public policy. But when it comes to judges, they must set aside their personal convictions and rule based on the law.

    Whether you believe religion should be relevant to judging cases, does anyone really believe that religion is, in fact, irrelevant? I don’t, so I am comfortable making religion part of the mix, and I think that it always has been part of the mix. On the other hand, I don’t like being told that Harriet should be confirmed because she is an evangelical. That seems to be a big part of the message emanating from the White House to conservatives. And many are buying that message.

  3. NFlanders on October 10, 2005 at 2:16 am

    “For me, the controversy is not about whether she went to Harvard or Yale – I prefer Chicago grads”

    We should be so lucky; those are all top ten law schools. The fact that she went to the 52nd best law school and has never served as a judge SHOULD be a major factor in deciding whether she is qualified for the position.

  4. Mike on October 10, 2005 at 8:34 am

    Who is going to LEAD the fight to defeat her?

    She ain’t gonna drop out herself, don’t be idiotic.

    She has the backing of the President who is more skillful politically than most realize. His opponents constantly underestimate him.

    She has the support of Dr.Frisk and the Republicans are grumbling but they are anything but undisciplined. She has the support of the Mormon from Nevada, Mr. Reid who will bring at least a few Democrats. She will get the nomination unless she confesses to mass murder and child abuse during the hearings.

    You might have underestimated her. I think she, at the very least, will be heavily influenced by Justice Roberts which will give him an added boost. But she might be smarter than you think in spite of graduating last in the 152nd best law school, or whatever it was. And people do change; she might take it upon herself to do whatever it takes to become a great Judge on the Supreme Court.

    Bush gets to pick. We have lived too long in a system where people think they can clammer and manipulate an intelligent but morally weak President to do whatever the rabble of the general public wants at the moment. Our current President is neither.

    Next year, 2006, vote for someone who will represent your view in Congress. In 2008 vote for a new President. That is all you can do, unless you have the resources and time to get more involved in a local political party and perhaps run yourselves.

  5. Adam Greenwood on October 10, 2005 at 8:56 am

    I like your take on religion too, Gordon Smith. What I resent is that being an evangelical is more or less the only virtue that Ms. Mier’s supporters can point too. I’d like to think that a Supreme Court nominee should have something else to offer.

  6. Gordon Smith on October 10, 2005 at 9:15 am

    Exactly, Adam. It’s really quite offensive. As I wrote on my other blog,

    Many of the early responses to Miers’ nomination suggested that she was the product of a weak President who did not want to engage the Senate in a battle over conservative principles. That story doesn’t fit my image of President Bush, and the more I hear about the back-office work at the White House, the more I become convinced that the Miers nomination represents exactly the opposite of that story. This is a story of breath-taking arrogance.

  7. Guy W. Murray on October 10, 2005 at 9:36 am

    #4 Mike asked: Who is going to LEAD the fight to defeat her?

    So far, Mike, leading conservative commentators across the nation:

    http://www.huffingtonpost.com/2005/10/09/republicans-condemn-miers_n_8565.html

    http://www.theconglomerate.org/2005/10/withdraw_miers.html#c10064840

    http://www.professorbainbridge.com/2005/10/in_good_company.html

    http://msnbc.msn.com/id/9623345/

    There are dozens, and dozens more. I’d say Ms. Miers is anything but a done deal at this stage. She still has Senate hearings, which should prove interesting as well. Maybe, just maybe the Senate will actually fulfill its own Constitutional charge and deny this nomination.

  8. John C. on October 10, 2005 at 9:51 am

    “We have lived too long in a system where people think they can clammer and manipulate an intelligent but morally weak President to do whatever the rabble of the general public wants at the moment. Our current President is neither.”

    Not morally weak, but also not intelligent?

  9. Jordan on October 10, 2005 at 10:04 am

    I can’t believe Mat said that. I guess I’m going to hell then for not living up to my “religious duty.”

  10. Randy B. on October 10, 2005 at 10:08 am

    Gordon,

    Your comment on religion and judging took me a little bit by surprise (not that I disagree with you). Is it that you don’t think that her religious philosophy informs her legal philosophy, or only that it does or ought to influence it in such an insignificant way as to be only a secondary or tertiary concern? If the later, I’m curious as to what you think about the pursuit of “LDS perspectives on the law” (as advocated by Nate and others). If these types of perspectives have no power to change the course of the law, or to otherwise shed some light on what the law ought to be, then why pursue them at all?

  11. Chris Grant on October 10, 2005 at 10:10 am

    Do those of you who voted for the Bush-Quayle ticket (like I did, twice) think that Quayle was more intellectually qualified to be within a heartbeat of possessing the nuclear football than Miers is to be among 9 judges on the court of last resort? If so, why?

    Do those of you who supported Clarence Thomas’s appointment to the Supreme Court (like I did) think that Miers couldn’t hold her own with him in a battle of wits? If so, why?

    Do those of you who enjoy reading Scalia’s scathing dissenting opinions (like I do) think that Miers is a bigger ignoramus than Scalia implies that the justices who disagree with him are? If so, why?

  12. Gordon Smith on October 10, 2005 at 10:26 am

    Randy, Here is another surprise: I was one of the principle organizers of the LDS Perspectives on Law conference at BYU. I don’t think that there is anything inconsistent in my position. I said in the original post that “I am comfortable with the notion that religion matters here,” but as Adam noted, that should not be the sole (or, I would add, primary) “qualification” of the nominee.

  13. jimbob on October 10, 2005 at 10:27 am

    “The fact that she went to the 52nd best law school and has never served as a judge SHOULD be a major factor in deciding whether she is qualified for the position.”

    Yes, Ned. Heaven help us that we never have a justice who didn’t get a really great LSAT score.

  14. Gordon Smith on October 10, 2005 at 10:37 am

    Does anyone know why Harriet Miers attended SMU rather than a more prestigious law school? Lots of people are assuming that she chose SMU because she was not bright enough to go to a fancier place, but that may not be true. Lots of people choose their law schools for other reasons, including proximity to family and friends, the prospect of making political connections, the desire to be in one’s home city or state, etc. I have avoided this precisely because she may have a very good reason for choosing SMU other than “it’s the only place I could be admitted.”

  15. Chris Grant on October 10, 2005 at 10:42 am

    Gordon Smith asks: “Does anyone know why Harriet Miers attended SMU rather than a more prestigious law school?

    According to the Dallas Morning News: “Ms. Miers lived with her mother, Sally, and younger brother Jeb during her SMU undergraduate and law school years. Her father, Morris Miers, suffered a stroke during her freshman year, leaving the family in financial straits. Concerned that she couldn’t afford to keep her daughter in school, Ms. Miers’ mother telephoned SMU President Willis M. Tate, seeking help, said the nominee’s brother, Robert Miers. The president arranged a scholarship and job for the student at the university’s campus computer center, Mr. Miers said. ‘Harriet and the family are grateful to this day.'”

  16. Adam Greenwood on October 10, 2005 at 10:47 am

    The WSJ has a thorough discussion

    http://www.opinionjournal.com/diary/?id=110007384

    On the law school thing–this may not be true, but I am inclined to believe the law school one attends is not solely proxy for how bright one is. I think better law schools generally provide a better legal education. Does anyone know if I’m wrong?

    ———————-

    Sotto-voice HM dissent from the White House:

    http://frum.nationalreview.com/archives/10102005.asp#079027

  17. Mike on October 10, 2005 at 11:02 am

    Response to Guy Murray # 7

    So the right flank, after a generous indulgence in theatrics, is actually going to vote against Miers and squelch her nomination? (This could split the Republican party and pave the way for giving the next election to the Democrats.) Then Bushie boy is going to nominate, who? A liberal? Orin Hatch? A competent but controversial well known conservative so the left can slug him even harder? Dream on.

    One of the reasons Bush picked someone with so little reputation and experience is because of the intense scrutiny each nomination receives and the political fall out that results. We are paying the price for the “Borking” done by both sides that is now part of the process for every Judge. If Miers is rejected, Bush will nominate someone else even more obscure. There is no shortage of good attorneys with conservative ideology in this country who can be expected to be influenced by Roberts. Perhaps Bush will select one of those who post on this site. Gordon Smith for Supreme Court Justice!

    BTW, John # 8. President Bush chooses to present himself as a good old boy from Texas, not the product of the finest education New England has to offer, for a variety of reasons known mostly to himself. I personally think Bush is as smart as a fox clothed in dumb sheepskin. He and his team won two very close elections and unseated a popular president’s vice president selection (Gore) during a time of economic prosperity and beat the man (Kerry) who received more individual Democrat votes than any other candidate in history, not an easy pair of tasks. Bush gets what he wants more often than not politically. But Bush overdoes the country boy thang and does come across as witless at times. This is what I meant saying he is not intelligent. Nothing more.

  18. lyle on October 10, 2005 at 11:31 am

    I for one and serously considering paying to attend a Sen. Lieberman event this week so that I can try to press him to oppose Miers. I think he is one of the few Democrats who has the capacity to oppose her without looking like a hack and gather others to do so also.

  19. Guy W. Murray on October 10, 2005 at 11:31 am

    Mike #17

    It appears the “split” to which you refer in the Republican party is more than theoretical, i.e., “could”. The base is in fact split, as evidenced throughout conservative and mainstream publications across the country, (and even this and other LDS Blogs). As I’m not in Mr. Bush’s inner circle, I have no idea on the identity of another nomination; however, almost anyone would be better than the current nominee. After the largest increase in governmental spending, and influence in the history of mankind, the squandering of large budget surpluses, and even more important the lives of our young men and women, I understand completely how you would fear giving the next election to the “Democrats.”

    p.s. Gordon Smith is eminently much more qualifed for the Supreme Court compared to Harrier Miers. The only problem with Gordon’s selection, is that I’m not certain they allow blogging from the Bench!

    http://www.theconglomerate.org/2005/10/sitting_in_facu.html

  20. Adam Greenwood on October 10, 2005 at 11:36 am

    In response to the anyone-can-be-a-Supreme-Court-Justice argument, I’ll pass on this quote from
    Federalist 78 that’s been circulating:

    “There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.”

  21. Christine Hurt on October 10, 2005 at 11:40 am

    As to whether Miers went to SMU because it was the best place she could get in or whether other reasons motivated her — SMU law school costs about 8 times what Texas costs. If she was strapped for finances, could have gotten into Texas, but chose to go to SMU anyway, then I can’t believe she was a math major. At some point, we all have to show some gumption and move outside of our comfort zones.

  22. jimbob on October 10, 2005 at 12:59 pm

    I really don’t see what difference it makes where she attended law school, and am not sure why anyone else here does either. Apparently, her “deficient” law school training was good enough to help her both enter and lead a large and important law firm for a number of years. The vast majority of Ivy League graduates would be lucky to have such a career. Whether that subsequent training is enough to qualify her for the Supreme Court is another question, I realize, but whether she jumped through the right hoops when she was 22 and deciding where to attend law school should be wholly irrelevant to this conversation. To be frank, any intimation to the contrary smacks of elitism to me. (“Yes, Ms. Miers. We realize you’ve done great and important things over the last 30 years, but as it turns out, we are only concerned with whether or not you ever resided in Cambridge.”) Indeed, one is reminded that even after 50 years of distinguished jurisprudence and lawyering, Dershowitz still starts his “Why I Hate Rehnquist” eulogy with the fact that while Stanford is pretty good now, when Rehnquist graduated from there, it more or less sucked. That is, in spite of the fact Dershowitz has a hundred intellectual disagreements with Rehnquist on which Rehnquist has written about at length, Dershowitz first feels a need to take a shot at Rehnquist’s alma mater. Why? Because Dershowitz needs something to say that regardless of subsequent accomplishment, Rehnquist just wouldn’t measure up to his standards, arbitrary though they might be.

  23. queuno on October 10, 2005 at 1:53 pm

    Re #21 – You have to consider how good the UT program may have been when Ms. Miers went to law school. SMU has been considered a top law program in Texas for a long time. And if she had family issues, then staying in Dallas was probably the motivation. It’s not about the ranking, it’s about one’s performance. In the sciences, the issue of “ranking” is overblown — it’s about your mentors, advisors, and the research you did. I’m doing a PhD, but briefly considered an MBA. I would have picked SMU over UT because of the quality, and because of employment issues, I was tied to Dallas.

  24. Adam Greenwood on October 10, 2005 at 2:09 pm

    “The vast majority of Ivy League graduates would be lucky to have such a career.”

    Her career has been a success in terms of money and prestige, yes.

  25. lyle on October 10, 2005 at 3:09 pm

    Jimbob: With all due respect to the ego of Texans, I don’t think her firm qualifies as “important.” It may be an “important” regional player, and Texas a big market, but it certainly doesn’t scream “qualified.”

    I’m open to the argument that this is just another “elitist” argument that doesn’t carry any weight.

  26. lyle on October 10, 2005 at 3:12 pm

    If the FBI director appointed by Clinton had a falling out with his “boss,” then what is to stand in Miers way of going the same route? Does Bush expect his counsel to roll-over and play dead while a justice?

    http://www.nytimes.com/2005/10/10/politics/10freeh.html

  27. b bell on October 10, 2005 at 3:19 pm

    Lyle,

    Good observation #26. That is why so many conservatives are looking for the track record that HM does not have. I am leaning more and more against her nomination as time goes on. Conservatives took a chance on o’Connor, Kennedy, and Souter. Look what it got us.

  28. Cyril on October 10, 2005 at 3:27 pm

    jimbob,

    That is why no one (liberal or conservative) cares for Dershowitz. But you make several good, overarching points, many of which the provincial east coasters will not concede because it strikes to close to their Baals.

  29. Adam Greenwood on October 10, 2005 at 3:35 pm

    Gordon Smith works in Wisconsin. I work in New Mexico. The furthest East I’ve lived is Indiana, except for boot camp in South Carolina. Now I’m some kind of provincial easterner because I think HM’s running a mid-market law firm doesn’t automatically qualify her for the Court? Nope. I’ll match boots and bolos with anyone.

  30. b bell on October 10, 2005 at 3:44 pm

    Cyril,

    I live in TX. I am not happy about her nomination. I am not in law either. So I have no law school /lawyer opinion issues to confront.

  31. Mark B. on October 10, 2005 at 3:59 pm

    SMU may be 8X as expensive as Texas now, but what was it in the late 60’s-early 70’s–I don’t know the exact dates of Ms. Miers’ attendance there.

    Having just received a glossy promo book from my alma mater just south of the Midway, and having noted that tuition for 05-06 is nearly seven times what it was my last year of law school ($35K plus compared to $5400), my guess is that tuition in the Miers’ era was infinitesimal compared to today.

    Isn’t she just the G. Harold Carswell of our generation?

  32. jimbob on October 10, 2005 at 4:53 pm

    “With all due respect to the ego of Texans, I don’t think her firm qualifies as
    ‘important.’ It may be an ‘important’ regional player, and Texas a big market, but it certainly doesn’t scream ‘qualified.'”

    I’m no fan of Locke Liddell, but I’m not sure what it would have to do to be an “important” firm beyond what it has done. It’s a frequent AmLaw 100 firm with good profits and a large and diverse plate of business. With no offense meant, my guess is that by saying that it’s just “regional”, the implicit thought is that no matter how big or successful a firm is, if there isn’t an office in New York, it’s just an unimportant “regional” firm. Which is strange, given that Schulte, Roth, and Zabel, for example, is never referred to a “regional” firm, even though it really only has one major office–in New York. This statement, to me, is the law firm equivalent of the erroneous law school “prestige” bias that has permeated this thread.

  33. lyle on October 10, 2005 at 6:01 pm

    Jimbob: You prove your point…how many people have heard of Schulte, Roth & Zabel without googling it? and/or who don’t live/work in NYC? Hm…

    aside: Tim Flanigan just withdrew his nomination to be Deputy AG at DOJ. As Nate pointed out awhile back, he could have been a good choice for the Court…but would probably be the floor most reasonably attorneys would consider as qualified. HM doesn’t even come close; and he was the Deputy WH counsel. Funny how the Deputy could be more qualified than the latter Chief counsel.

  34. Adam Greenwood on October 10, 2005 at 6:24 pm
  35. jimbob on October 10, 2005 at 6:43 pm

    “[H]ow many people have heard of Schulte, Roth & Zabel without googling it? and/or who don’t live/work in NYC? Hm…

    Are you referring to lawyers? I suspect many have heard of Schulte: I’ve never been to NYC or worked with an attorney from Schulte and I know who they are. If you’re referring to the average non-attorney, I don’t think very many can name even one major law firm besides that whole “Dewey Cheatem and Howe” nonsense. So I guess I’m missing your point, unless it is that most non-lawyers don’t really understand why HM is or is not qualified.

  36. Adam Greenwood on October 10, 2005 at 7:47 pm

    A profile of conservative appointees who become left wing philosopher kings:

    http://www.volokh.com/archives/archive_2005_10_09-2005_10_15.shtml#1128977555

  37. gst on October 10, 2005 at 8:05 pm

    Locke, Liddell is not among the leading Texas firms. I don’t think its much disputed that the top tier of Texas firms is comprised by Baker Botts, Vinson & Elkins, and Fulbright & Jaworski. Locke, Liddell falls in the next tier with Haynes & Boone, Jenkins & Gilchrist, et al.

    And lest I be accused of being a firm snob, let it be known that I left (under my own power) a leading world-wide firm (where my colleagues included, among other luminaries, Nate Oman!) for a small-market firm with 15 guys you’ve never heard of.

  38. lyle on October 10, 2005 at 8:38 pm

    Jimbob: An informal survey has yet to discover one attorney, let alone non-attorney, who is familiar with the firm you mentioned.

    GST makes that point very well. I’ve heard of all three of the ‘leading’ firms he mentions; but not locke, liddell, whatever. Why is that?

  39. manaen on October 10, 2005 at 9:27 pm

    “that whole “Dewey Cheatem and Howe” nonsense.”

    Now we’re talkin’. Please advise when we can start with the lawyer jokes.

  40. Stephen M (Ethesis) on October 10, 2005 at 9:51 pm

    I’m doing a PhD, but briefly considered an MBA. I would have picked SMU over UT because of the quality

    SMU had Reinganum and others at the time you made up your mind. It would have been a great choice for that reason, not to mention, UT Dallas is a great place for a PhD (if you had decided on Dallas).

  41. sam b on October 10, 2005 at 9:52 pm

    And here I was thinking that people kind of got what they voted for. (Not guilty.)

  42. Stephen M (Ethesis) on October 10, 2005 at 11:11 pm

    http://volokh.com/posts/1128920733.shtml

    and

    http://volokh.com/posts/1128804064.shtml

    Miers sure is creating some interesting posts.

  43. Marc Bohn on October 11, 2005 at 6:44 am

    With all the hubbub over where Ms. Miers graduated from law school, I it might be interesting to note where the other current Justices graduated from:

    John Roberts – Harvard
    Stephen Breyer – Harvard
    Ruth Bader Ginsburg – Harvard
    Sandra Day O’Connor – Stanford
    Clarence Thomas – Yale
    David Souter – Harvard
    Anthony Kennedy – Harvard
    Antonin Scalia – Harvard
    John Paul Stephens – Northwestern

    Past Justices of Note:
    William Rhenquist – Stanford (No Judicial Experience)
    Louis Powell – Washington & Lee (No Judicial Experience)
    Warren Burger – Minnesota
    Thurgood Marshall – Howard
    Earl Warren – Berkley (No Judicial Experience)

  44. lyle on October 11, 2005 at 9:14 am

    Marc, as usual, is right. A few additions to his list:

    Rhenquist: Assistant Attorney General, former Supreme Court Clerk
    Powell: President of the ABA and a distinguished attorney from a national firm
    Warren: Gov. of California, with broad experience interpreting state law and how it interacts with federal law.

    Perhaps she should be given a short Q&A session, on national TV, today, about how the Supreme Court functions…little things like:

    1. Please explain the certiorari (“cert”) process to the Public.
    2. How many justices does it take to grant “cert” ?
    3. Who decides who will write the majority opinion?
    4. Please explain the Doctrine of Incorporation
    5. Please explain Statutory interpretation
    6. Please give us a short introduction to Constitutional law, including the ten most influential opinions in your opinion, along with why they are important to the development of Constitutional law.

    Any guesses as to how she would do without the “primer” that she is widely seen to be needing before the hearings? Do we want a nominee who couldn’t even answer basic questions about the Court without having to google/study them?

  45. Chris Grant on October 11, 2005 at 9:24 am

    Lyle asks: “Any guesses as to how she would do without the ‘primer’ that she is widely seen to be needing before the hearings?

    Any guesses how Clarence Thomas would have done on the same quiz at his confirmation hearings?

  46. Guy W. Murray on October 11, 2005 at 10:43 am

    Chris #46

    Clarence Thomas was no more qualified than Ms. Miers. He too was a political justice, the dividends of which paid off handsomely in 2000.

  47. Daniel Peterson on October 11, 2005 at 11:02 am

    ““With all due respect to the ego of Texans, I don’t think her firm qualifies as
    ‘important.’ It may be an ‘important’ regional player, and Texas a big market, but it certainly doesn’t scream ‘qualified.’”

    Larry McMurtry sometimes wears a tee shirt bearing the title “Important Regional Novelist.,” bestowed upon him some years ago by the [insert drum roll here] New York Times. Apparently, since he lives and writes in Texas, merely writing a dozen or so significant and healthy-selling novels (Including “Lonesome Dove,” for which he won the 1986 Pulitzer Prize) will never be enough to lift him out of the “regional” category. It seems, however, that New York City is not a “region.”

  48. lyle on October 11, 2005 at 11:07 am

    Chris & Guy: He would have done just fine. Unlike Miers, he had already been a judge; not to mention already having knowledge of the above subjects. So…sorry, your analogy fails to produce the results and I don’t think anyone can convincingly argue that she could do even a “C” job on the above questions if forced to today. I don’t want a “C” justice.

  49. Nate Oman on October 11, 2005 at 11:12 am

    Warren Burger did not graduate from Minnesota. He graduated from William Mitchell College of Law in Minneapolis. They are very different beasts. William Mitchell at the time was purely a night school, and even now is very much a second or third tier law school. Burger did, however, have a distinguished career on the DC Circuit prior to being elevated to the Court. Also, he had served as the Deputy Attorney General under Eisenhower.

    Rehnquist had been head of the Office of Legal Counsel, which is essentially the DOJ office in charge of answering very difficult questions of federal or constitutional law for the executive.

    Thurgood Marshall was Solicitor General.

  50. Guy W. Murray on October 11, 2005 at 11:21 am

    Lyle # 49 –Justice Thomas was a Federal Appellate Court judge possibly for one year prior to his elevation. He was not steeped in Constitutional theory or practice prior to his elevation. His prior legal experience did not give him that either; however, he was being groomed by a well oiled political machine for the Supreme Court. A brief sketch of his background is here:

    http://www.oyez.org/oyez/resource/legal_entity/106/background

    His grooming and meteoric rise to the Supreme Court is well chronicled here:

    http://www.amazon.com/exec/obidos/tg/detail/-/0395633184/103-1257048-9250251?v=glance

    He was a product of affirmative action, and IMHO is nowhere the intellect of Scalia, or even Judge Bork, who never made it to the High Court; but, was eminently more qualified.

    I don’t think Ms. Miers could do a “C” job either–but that doesn’t boost Mr. Thomas’ qualifications. They’re probably both equally qualifed. It will be interesting to see the ABA’s rating of Ms. Miers. They rated Justice Thomas only “Qualified” but Justice Roberts “Well Qualified.”

    http://www.cnn.com/2005/POLITICS/08/17/roberts/

  51. danithew on October 11, 2005 at 11:24 am

    I’m surprised at how vehement many conservatives are in their statements against Miers. Had it not occurred to them that she might be a potential ally? I’m concerned (if she is eventually confirmed as a justice) that even if she began as a conservative she will turn on her new enemies once she is in her seat. Even if she isn’t the ideal conservative candidate — now that the candidate has been named, wouldn’t it be wiser for conservatives to hold back a little in expressing their disappointment?

    I also think there are some huge egos involved here, perhaps even institutional egos. It’s obvious that her candidacy is a tremendous blow to some — but I wonder if her critics are really suffering for the right reasons.

  52. lyle on October 11, 2005 at 11:25 am

    Guy: Nice try. The issue is the nominee’s qualifications at the time they are nominated…i.e. Thomas had one year as an appellate judge doing the type of working and thinking required of a justice. Thomas is admittedly the baseline of the minimally qualified candidate…but at least one can make the argument with a strait face. I still can’t understand how people just don’t bust out laughing over Miers.

  53. lyle on October 11, 2005 at 11:26 am

    Danithew: You are exactly correct…it’s about institutions. And some folks are very concerned that a very important institution, SCOTUS is being damaged by this nomination.

  54. Guy W. Murray on October 11, 2005 at 11:27 am

    Lyle – – wer’e not really in disagreement here on Ms. Mier’s qualifications (though laughing is not what comes to mind); but, I suspect we are on Justice C’s

  55. Chris Grant on October 11, 2005 at 11:51 am

    Lyle writes: “Rhenquist: Assistant Attorney General, former Supreme Court Clerk

    Wikipedia summarizes his tenure as clerk as follows:

    “There, he wrote a memorandum arguing against school desegregation while the court was considering the landmark Brown v. Board of Education case. Rehnquist later claimed that the memo was meant to reflect Jackson’s views and not his own. Rehnquist’s memo, entitled ‘A Random Thought on the Segregation Cases,’ defended the separate-but-equal doctrine embodied in the 1896 Supreme Court case of Plessy v. Ferguson. Rehnquist concluded that Plessy ‘was right and should be reaffirmed.’ When questioned about the memos by the Senate Judiciary Committee in both 1971 and 1986, Rehnquist blamed his defense of segregation on the late Justice Jackson, stating – under oath – that his memo was meant to reflect the views of Justice Jackson. But Justice Jackson voted in Brown, along with a unanimous Court, to strike down school segregation. According to law professor Mark Tushnet, Justice Jackson’s longtime legal secretary called Rehnquist’s Senate testimony an attempt to ‘smear[] the reputation of a great justice.’ Rehnquist later admitted to defending Plessy in arguments with fellow law clerks.”

    It sounds like he might have believed in the existence of “white people”.

    Powell: President of the ABA and a distinguished attorney from a national firm

    The standard Internet description of Hunton, Williams, Gay, Powell and Gibson appears to be “a large Virginia law firm”. Why do you call it national?

    Warren: Gov. of California, with broad experience interpreting state law and how it interacts with federal law.

    Maybe Miers could get a crash course on these intricacies from Ah-nold.

    Perhaps she should be given a short Q&A session, on national TV

    How did those of you at lds4bush.com feel about the quizzes administered to GWB and his performance on them?

    3. Who decides who will write the majority opinion?

    We should also ask her where the restrooms are located in the Supreme Court Building. Imagine the embarrassing situations that would arise if she were ignorant of that.

    4. Please explain the Doctrine of Incorporation

    Too bad Raoul Berger isn’t around anymore for you to ask him that question.

    5. Please explain Statutory interpretation

    I’m going to go out on a limb and guess that it has something to do with interpreting statutes.

    6. Please give us a short introduction to Constitutional law,

    This seems like an odd question to ask if, in fact, Constitutional law is this extraordinarily broad and deep area of intellectual endeavor. Ask a mathematician “Please give us a short introduction to mathematics”, and milk will come out his nose.

  56. jimbob on October 11, 2005 at 12:06 pm

    “An informal survey has yet to discover one attorney, let alone non-attorney, who is familiar with the firm you mentioned.”

    Fine. Let’s do this hypothetically, then. Would you consider a 400+ attorney law firm with multinational clients and large books of business “regional” simply because it only had one office in New York?

  57. lyle on October 11, 2005 at 12:23 pm

    Chris: nice standup routine; except you forgot Nate’s additions/comments on qualifications of the non-judges listed. almost as funny as the HM nomination.

    jimbob: yup; of course, if they had a “national” reputation, that might differ.

  58. jimbob on October 11, 2005 at 12:23 pm

    “Locke, Liddell is not among the leading Texas firms. I don’t think its much disputed that the top tier of Texas firms is comprised by Baker Botts, Vinson & Elkins, and Fulbright & Jaworski. Locke, Liddell falls in the next tier with Haynes & Boone, Jenkins & Gilchrist, et al.”

    Am I to understand that a firm cannot be “important” because there are other firms which are more important? That would seem to eliminate from consideration a whole lot of worthy firms. The running theory on this thread seems to be that you should never pick a practioner as justice, but if you do, make sure he or she is from Jones Day (who apparently was just a regional Cleveland firm until it made it into NYC), Latham and Watkins, Skadden Arps, or Baker McKenzie. All other firms are less well known, and therefore are “second tier.”

  59. Chris Grant on October 11, 2005 at 1:02 pm

    Lyle writes: “Chris: nice standup routine;

    Okay, let me see if I can coax a substantive response out of you by restating things less humorously:

    (1) Why was Rehnquist’s tenure as clerk a net positive on his road to the Supreme Court?

    (2) Why do you call Hunton, Williams, Gay, Powell and Gibson a national firm?

    (3) Is Governor Schwarzenegger gaining the same “broad experience interpreting state law and how it interacts with federal law” as governor of California that you assert Governor Warren did? And would the same go for former Governor Ventura of Minnesota and, say, former Governors Miriam “Ma” Ferguson and George W. Bush of Texas?

    (4) George W. Bush was famously administered quizzes in public about geography, international politics, and philosophers. How did those of you at lds4bush.com feel about those quizzes, and what should the American public have concluded from his performance on them?

    (5) Why is the protocol for deciding who writes majority opinions an essential of Constitutional law rather than a piece of trivia?

    (6) If Miers answered your question about the Doctrine of Incorporation the way Raoul Berger would have, would you have given her full marks?

    (6a) Justice Scalia has been quoted as saying that Justice Thomas does not believe in stare decisis. If you had asked Miers to explain the doctrine of stare decisis instead of the doctrine of incorporation, would you have accepted the purportedly Thomasonian answer that it is false doctrine?

    (7) What sort of answer are you looking for when it comes to explaining statutory interpretation?

    (8) What are you looking for when you ask for a short introduction to Constitutional law?

    (9) Is your knowledge about Thomas’s ability to field such questions in his confirmation hearings based on having watched them as a teenager? If not, what is it based on?

  60. Ecos on October 11, 2005 at 1:23 pm

    Miers is what we here in Texas tend to call a “bar queen”- someone who gets heavily involved in the state bar and is thus well-known, not for the quality of her practice.

    And LLS is a dysfunctional firm if ever there was one- its like a dysfunctional family over there. I know- I worked there. Good riddance!

    I don’t think you have to necessarily go to a top law school or have clerked for the Supreme Court or worked at Gibson or Sidley to be “worthy” of being on the Supreme Court. But you should be someone who has distinguished him/herself through deep, abiding, and demonstrated knowledge and understanding of the law, not some second rate bar queen who happens to have the President’s ear at a key time.

    Note that I am not saying Harriet Miers is incompetent- just that she doesn’t seem like a good choice for SCOTUS. She should go back to private practice, make lots of money, and schmooze with the types that tend to get really into state bar activities- that’s what she is good at.

  61. Chris Grant on October 11, 2005 at 1:34 pm

    Ecos writes: “Miers is what we here in Texas tend to call a ‘bar queen’- someone who gets heavily involved in the state bar and is thus well-known, not for the quality of her practice.

    Does the terminology indicate that this is an activity in which only the womenfolk engage? And when you say “we here in Texas” are you talking about a large enough group that this alleged category has left a trace anywhere on the Internet?

  62. Stephen M (Ethesis) on October 11, 2005 at 2:05 pm

    I’ve never heard the term “bar queen” — but I’ve only been in Texas since 1985.

  63. lyle on October 11, 2005 at 2:27 pm

    Chris: You make some good points.

    1. For the same reason that Thomas’ one year as a Cir. Judge are relevant…at least they both had spent 1 year on topics/issues/jurisprudence that SCOTUS deals with.
    2. My bad; although Powell certainly had a ‘national’ reputation that belonged to him…unlike HM’s because of who she worked/schmoozed for.
    3. Every governor is going to be diff.; and I admit that the ones you mention are certainly frightening prospects as Justices; but the point is that they have have some work-related basis for being able to adjudicate such issues.
    4. Famous quizzes? If you say so. Unknown to me. However, one expects a nominee/candidate to have some knowledge of the field they are going into. Bush blew his? So what. That doesn’t make Miers anymore qualified for SCOTUS just because her boss was less qualified for Pres.
    5. Who writes the opinions and how many votes are needed to grant cert, etc. are an essential part of being a functioning contributing justice. These aren’t trivia. Would you take a job where you had no idea how to go about doing it?
    6. Does Miers have any idea who Berger is? Why do I doubt it. Perhaps she thinks it was Justice Berger? Or can’t spell?
    6a. Could she articulate a defense of such? If rational…why not? Although, referring to examples that are based on hearsay seems somewhat dicey.
    7. It might be helpful if she could explain the framework used to decide issues of statutory interpretation; and to what extent she was going to use committee reports, etc. as relevant to intent. This could be the most informative answer she could give the Senators…at least as it relates to how she will be adjudicating the laws they pass.
    8. I’m looking for any indication that she understands anything about how the Constitution is currently interpreted, i.e. Lemon test, rational basis v. heightened/intermediate scrutiny, etc.
    9. Never watched them. It’s based on reading his opinions as a Cir. court judge.

  64. Marc Bohn on October 11, 2005 at 3:24 pm

    Nate… Much obliged for the correction on Burger. My eyes must have skipped a line when I checked his background on oyez (I will note however, that technically Burger graduated from the St. Paul College of Law, as the William Mitchell College of Law was known then). I also should have said “Never been a judge” rather than “No judicial experience.”

    That said, the list was not intended to undermine the qualifications of any of the justices listed, but merely to give context to the present discussion surrounding Ms. Miers. In the end, it’s my view that neither attending a “top ten” law school nor having been a judge are necessarily prerequisites for a qualified Supreme Court Justice.

  65. Adam Greenwood on October 11, 2005 at 4:37 pm

    “You’re the best governor ever!” –Miers to Bush
    http://www.nytimes.com/2005/10/11/politics/politicsspecial1/11archive.html?hp&ex=1129089600&en=025c849e781015f2&ei=5094&partner=homepage

    Miers for Hillary? Close but not quite.
    http://news.bostonherald.com/politics/view.bg?articleid=106487

    Administration still uninformed about Miers’ record:
    “The administration was trying to assemble and review as much documentation as it could find about Ms. Miers’s public record before she came to the White House, including details of her service on the Dallas City Council and her role as president of the State Bar of Texas.”
    http://www.nytimes.com/2005/10/09/politics/politicsspecial1/09confirm.html

    “”We spent about 1,200 hours together and had in excess of 6,000 agenda items, and I never knew where Harriet was going to be on any of those items until she cast her vote,” former council colleague Jim Buerger said. “I wouldn’t consider her a liberal, a moderate or a conservative, and I can’t honestly think of any cause she championed.””
    http://www.washingtonpost.com/wp-dyn/content/article/2005/10/07/AR2005100701813.html

    Q&A on Miers’ qualifications:
    http://www.redstate.org/story/2005/10/11/102946/57
    http://www.nytimes.com/2005/10/09/politics/politicsspecial1/09confirm.html

  66. Adam Greenwood on October 11, 2005 at 4:45 pm

    Administration still trying to find things out about Miers
    “The administration was trying to assemble and review as much documentation as it could find about Ms. Miers’s public record before she came to the White House, including details of her service on the Dallas City Council and her role as president of the State Bar of Texas.”
    http://www.nytimes.com/2005/10/09/politics/politicsspecial1/09confirm.html

    “We spent about 1,200 hours together and had in excess of 6,000 agenda items, and I never knew where Harriet was going to be on any of those items until she cast her vote,” former council colleague Jim Buerger said. “I wouldn’t consider her a liberal, a moderate or a conservative, and I can’t honestly think of any cause she championed.”
    http://www.washingtonpost.com/wp-dyn/content/article/2005/10/07/AR2005100701813.html

    Miers for Hillary? Close, but not quite.
    http://news.bostonherald.com/politics/view.bg?articleid=106487

    “You’re the best governor ever” -HM to Bush
    http://www.nytimes.com/2005/10/11/politics/politicsspecial1/11archive.html?hp&ex=1129089600&en=025c849e781015f2&ei=5094&partner=homepage

    Q&A on Miers
    http://www.redstate.org/story/2005/10/11/102946/57

  67. GoAdam Greenwood on October 11, 2005 at 4:45 pm

    Administration still trying to find things out about Miers
    “The administration was trying to assemble and review as much documentation as it could find about Ms. Miers’s public record before she came to the White House, including details of her service on the Dallas City Council and her role as president of the State Bar of Texas.”
    http://www.nytimes.com/2005/10/09/politics/politicsspecial1/09confirm.html

    “We spent about 1,200 hours together and had in excess of 6,000 agenda items, and I never knew where Harriet was going to be on any of those items until she cast her vote,” former council colleague Jim Buerger said. “I wouldn’t consider her a liberal, a moderate or a conservative, and I can’t honestly think of any cause she championed.”
    http://www.washingtonpost.com/wp-dyn/content/article/2005/10/07/AR2005100701813.html

    Miers for Hillary? Close, but not quite.
    http://news.bostonherald.com/politics/view.bg?articleid=106487

    “You’re the best governor ever” -HM to Bush
    http://www.nytimes.com/2005/10/11/politics/politicsspecial1/11archive.html?hp&ex=1129089600&en=025c849e781015f2&ei=5094&partner=homepage

    Bush’s judicial nominee cheerleading team keeps their mouths shut.
    http://msnbc.msn.com/id/9629612/site/newsweek/

    Q&A on Miers
    http://www.redstate.org/story/2005/10/11/102946/57

    The Good Professor makes an originalist, textualist argument
    http://www.professorbainbridge.com/2005/10/hewitt_and_mirg.html

    White House Gossip:
    http://www.confirmthem.com/?p=1555

  68. gst on October 11, 2005 at 5:13 pm

    Danithew (#52), R. Ponnuru addresses the concern you raise here: http://corner.nationalreview.com/05_10_02_corner-archive.asp#078949

    The short of it is: that she might change her view of the Constitution out of spite is not a compelling argument to support her.

  69. Chris Grant on October 11, 2005 at 5:18 pm

    Lyle writes: “Famous quizzes? If you say so. Unknown to me.

    Googling “Jesus Bush philosopher” gives 532,000 hits. The first page of these all refer to the time when, in a presidential debate, Bush named Jesus as the political philosopher who’d had the greatest influence on him, so I’d guess that many of the other half million hits do, too. If you somehow managed to miss out on hearing all the ridicule he received for that answer, I envy you.

    Similarly, Googling “‘George W. Bush’ quiz leader Pakistan” gives 70,700 hits, which appear to be largely about the international politics quiz he was given by a reporter in November 1999. Count yourself lucky that you missed out on that one, too.

  70. Mark B. on October 11, 2005 at 6:05 pm

    You all are leaving out another important qualification that Earl Warren (“The worst damned mistake I ever made”–Eisenhower):

    He was the Attorney General of California during the 2nd World War, and was instrumental in persuading the feds to remove Japanese-Americans from the west coast to concentration camps in the interior of the country.

    I wonder how this affected his understanding of the 14th amendment–perhaps guilt was a big motivation. From Warren’s autobiography:

    “I have since deeply regretted the removal order and my own testimony advocating it, because it was not in keeping with our American concept of freedom and the rights of citizens. Whenever I thought of the innocent little children who were torn from home, school friends and congenial surroundings, I was conscience-stricken.”

  71. lyle on October 11, 2005 at 6:09 pm

    Thanks Mark…good catch. However it was a useful lesson in that maybe being a governor, by itself, isn’t a _strong_ qualification for being a Justice nominee.

  72. JrL on October 11, 2005 at 6:19 pm

    “The fact that she went to the 52nd best law school and has never served as a judge SHOULD be a major factor in deciding whether she is qualified for the position.”

    Absolutely! Those are significant factors in support of confirming her nomination.

    Put another way… The few hundred lawyers who graduate each year from the “top ten” schools are not necessarily the best, nor even the best-educated law graduates that year. The contrary suggestion cannot possibly be quantified — indeed, it cannot possibly be true. And the idea that a (very) few months of sitting on an appellate court (e.g. Thomas and Roberts) or some other court divides the qualified from the unqualified makes no sense at all to me. Well, maybe if everything else were equal — which, of course, it never is.

  73. Adam Greenwood on October 11, 2005 at 6:25 pm

    “The few hundred lawyers who graduate each year from the “top ten” schools are not necessarily the best, nor even the best-educated law graduates that year. The contrary suggestion cannot possibly be quantified – indeed, it cannot possibly be true.”

    It cannot possibly be true that the lawyers who do not graduate from the top ten law schools are not the best educated law graduates? Really? I did not graduate from a top ten law school, so I’m brilliant by your lights, but I still don’t understand what you’re saying. Or I do, but you can’t possibly mean that.

  74. Chris Grant on October 11, 2005 at 7:07 pm

    Adam Greenwood writes: “It cannot possibly be true that the lawyers who do not graduate from the top ten law schools are not the best educated law graduates?

    I believe the “contrary suggestion” JrL was referring to was the logical negation of his statement: “The few hundred lawyers who graduate each year from the ‘top ten’ schools are not necessarily the best, nor even the best-educated law graduates that year.” That logical negation is: “The few hundred lawyers who graduate each year from the ‘top ten’ schools are necessarily the best or at least the best-educated law graduates that year.”

    I did not graduate from a top ten law school, so I’m brilliant by your lights

    This appears to be a non sequitur. Saying that the few hundred football players entering the NFL draft from the top 10 college football programs are not necessarily the best football players entering the draft is not the same as saying that everyone who played at a mediocre college is a stellar player.

  75. Adam Greenwood on October 11, 2005 at 7:20 pm

    Chris Grant,
    Try to read what I said as charitably as you want me to read JrL. And don’t just read what I said about JrL. Read JrL, including the first two sentences that he says are the same as the last ones, only “put another way.” Dial down the anger too. Save some for the Devil. (In the interests of taking my own advice, I will stop responding to your comments. My gift to you is the last word. )

  76. Stephen M (Ethesis) on October 11, 2005 at 10:15 pm

    I’m still trying to look at many sides of this issue, rather than making up my mind and looking for support. It has been an interesting journey.

  77. Marc Bohn on October 11, 2005 at 11:39 pm

    #69 – I prefer Dallin H. Oaks’ opinion of Warren, as a one-time clerk, over Eisenhower’s (http://www.law2.byu.edu/Law_Society/pdf_Clark_Memorandum/cmS05.pdf):

    “In contrast to my disagreements with his votes on some cases, I adored the chief
    justice as a person, and I admired him as an administrator of the Court and as a wise and
    considerate employer… [Upon ending my Clerkship] I recorded these thoughts in my personal journal: “I felt a keen loss at leaving him. Though these pages scold him severely . . . in regard to what I consider his faulty notion of how a judge should reach decisions, I have developed a profound affection and respect for him. I believe he is completely honest, sincere, and utterly without guile. He has wonderfully mature judgment about many matters, and he is the most kind and considerate employer one could ask for. I will miss him”…. When the chief justice resigned in 1969, while still in good health at age 78, I wrote him a letter recognizing his resignation as a fulfillment of his intention—frequently voiced to his law clerks—to resign while still at the peak of his powers and effectiveness. “I believe you have done that,” I wrote, then expressed my belief that this was “the right and proper course.” I continued, “That is what I would have wanted for you if you had been my father, and I feel the same way about you as one of a small group of men who are in a very real sense my fathers in the law.”

  78. Miranda PJ on October 11, 2005 at 11:46 pm

    It is wrong to suggest that only those with judicial experience can make good constitutional law or that only those with the finest educational credentials can make good judges. But what is worse than this kind of insider elitism is the insider cronyism that Bush is guilty of.

  79. Chris Grant on October 12, 2005 at 8:24 am

    Adam Greenwood writes: “Try to read what I said as charitably as you want me to read JrL.

    You said to JrL: “I still don’t understand what you’re saying. Or I do, but you can’t possibly mean that.” That sounds to me like what a confused person says. I didn’t realize that you’d have preferred to remain confused rather than having me share a fragment of a Math 190 lecture with you.

    Read JrL, including the first two sentences that he says are the same as the last ones

    I assumed that the two sentences of JrL that you actually quoted were the ones to which you were responding. My bad.

    Dial down the anger too.

    Sorry. There’s something about people ridiculing and spreading rumors about a decent lady that gets my dander up. On NRO, they’ve now resorted to ridiculing her looks, with the disclaimer that this shouldn’t be interpreted as a “smear job”. Why in the world would anyone think that? I mean, when Senator Heflin announced to national television that Judge Bork’s beard made him a strange-looking individual, conservatives didn’t take that to be part of the Borking process, did they?

  80. Adam Greenwood on October 12, 2005 at 10:09 am

    The revolt of the aides (understandable but disquieting)
    http://www.nytimes.com/2005/10/12/politics/politicsspecial1/12confirm.html

    Her favorite justices are Warren Burger and Oliver Wendell Holmes. Gaah!
    http://www.washingtonpost.com/wp-dyn/content/article/2005/10/11/AR2005101101804.html

  81. lyle on October 12, 2005 at 12:08 pm

    So, here is a thought. If Miers is qualified, and she is only as qualified as several thousands of other attorneys in the country…

    Does this help/hurt the institutional legitimacy of the Court?

    Pro: It makes the Court seem more democratic, as “anyone” can aspire to such heights and consider themselves as qualified to say “what the law [constitution] is.”

    Con: Why respect the opinion of 5 judges who are no more “special” than 1000s of other attorneys in the nation who/if they are acting like a super-legislature?

  82. Jack Sprat on October 12, 2005 at 12:59 pm

    Miers is Bush’s Johnny Cochrane. Who knows how many close scrapes with the law Miers has helped Bush escape? With all the skeleton’s in Bush’s closet, maybe he’s going with the most brilliant defensive attorney he’s ever encountered?

    As long as we’re playing the Google Game, try “bush criminal”. That’ll score you 21,700,000 points.

    BTW, as for Bush not believing in judicial activism, conveniently, many of his appointees do.
    http://www.nrdc.org/media/pressReleases/010718.asp

    It’s just a matter of what kind of activism you’re interested in.

  83. gst on October 12, 2005 at 1:13 pm

    Jack Sprat, you must concede that some of those hits must refer to the president’s criminal family, and not to him particularly. You know, because he’s from a well-known crime family. It’s well-documented by a bunch of internet geniuses.

  84. Jack Sprat on October 12, 2005 at 1:16 pm

    GST, yes and yes.
    http://www.consortiumnews.com/archive/lost7.html

    But, as ETB used to say, none dare call it conspiracy…

  85. gst on October 12, 2005 at 1:24 pm

    Jack, there’s a discussion of Mormon superheroes going on over here: http://www.millennialstar.org/index.php/2005/10/11/unpractical_ethics_superheros

    You could be one. Your superpower: “He’s Impervious to Sarcasm!”

  86. Jack Sprat on October 12, 2005 at 1:25 pm

    Here’s an interesting exercise–
    Prove that GWB has anything but contempt for
    a) The Constitution
    b) Laws duly legislated, but opposed to his own position
    c) laws that stand in the way of his own enjoyment

    OK, that was mostly just for fun. But really, what does Bush think is the purpose of
    a) laws
    b) lawyers
    c) judges

    I’m not sure Bush’s views are more sophisticated than
    a) laws that support what I do are good, others are to be opposed
    b) lawyers are the people that get you out of trouble when you oppose inconvenient laws
    c) judges are the people you need to help your lawyers when you are opposing inconvenient laws

    Doesn’t this look like Bush’s personal record, and the record of his administration? Isn’t this administration notorious for seeking to circumvent the law?
    –Including international laws such as Geneva
    –look at this administration’s record of opposing environmental law

    No matter what your stand on Bush’s personal or administrative legality or illegality, my main point is that we need to look at what Bush really thinks of the law to understand why he may have appointed his personal friend and own legal counsel to SCOTUS.

  87. Adam Greenwood on October 12, 2005 at 1:25 pm

    Who the elitists and the sexists (according the Administration) would favor:

    http://corner.nationalreview.com/05_10_09_corner-archive.asp#079289

  88. jimbob on October 12, 2005 at 2:02 pm

    “Why respect the opinion of 5 judges who are no more “special” than 1000s of other attorneys in the nation who/if they are acting like a super-legislature?”

    Well, there’s that whole pesky federal constitution thing.

  89. lyle on October 12, 2005 at 2:35 pm

    Jimbob: You are exactly right. Which is the problem. DOwn goes the respect for the constitution, which is seen as a “pesky” thing manipulated at will by the vote of five…

  90. Jack Sprat on October 12, 2005 at 3:20 pm

    Jack, there’s a discussion of Mormon superheroes going on over here: http://www.millennialstar.org/index.php/2005/10/11/unpractical_ethics_superheros

    You could be one. Your superpower: “He’s Impervious to Sarcasm!”

    Or gst, maybe I just countered your sarcasm (an evil apparently only found in the Book of Mormon among the people of Ammonihah–see Alma 14:21) with irony.

    Meanwhile, still wondering about Bush’s view of the law, lawyers, and judges.

    Irony Man

  91. gst on October 12, 2005 at 3:35 pm

    Is this administration indeed “notorious for seeking to circumvent the law”? Has there ever been an administration that was not accused of seeking to circumvent the law by its opponents? Ever?

    To answer your question: I’ve gone on record here with my consternation with President Bush’s apparent misconception of what a Supreme Court nominee ought to be. I don’t, however, subscribe to your tinfoil hat view that he’s putting his friend on the Court to insulate himself from criminal conviction. I don’t believe that any more than I believe that the Clintons murdered Vince Foster.

  92. jimbob on October 12, 2005 at 4:18 pm

    “You are exactly right. Which is the problem. DOwn goes the respect for the constitution, which is seen as a “pesky” thing manipulated at will by the vote of five…”

    There are plenty of judges whose reasoning I found so deficient that I questioned the author’s intelligence (Planned Parenthood v. Casey and Hill v. Colorado spring to mind). But I still accept the decisions as law. In that sense, I still “respect” the decisions, which is where I was heading with my comment. If your point is that the court loses an Aretha Franklin type of respect (lower public’s estimation of competence) when a less than adequate candidate is appointed, I guess I would concur. But I think most non-lawyers, and even many acquainted with the law lose that kind of respect for the court every time someone not of their ideological bent is appointed (i.e., I disagree with Brennan, so Brennan must be stupid, so when he was appointed, the court lost my respect). So I’m not sure I agree that the overall net effect of appointing a less than qualified person is particularly more damning to the public’s estimation than what it was before. I think as lawyers we tend to forget that the public has a hard time seeing through the legal minutiae and are largely, therefore, de facto legal realists anyway. As a result, my guess is that most people are less concerned with HM’s qualifications and more with her ideological leanings.

  93. Adam Greenwood on October 12, 2005 at 6:07 pm

    “I disagree with Brennan, so Brennan must be stupid, so when he was appointed, the court lost my respect”

    Most people who disagree with Brennan admit that he was a gifted man, Jimbob.

  94. Adam Greenwood on October 12, 2005 at 6:18 pm
  95. jimbob on October 12, 2005 at 7:20 pm

    “Most people who disagree with Brennan admit that he was a gifted man, Jimbob.”

    And I’m one of them. The “I” there was a hypothetical person speaking to himself. I’m sorry if that didn’t come through on the writing. Again, however, I would point out that most people who disagree with Brennan don’t have any idea whether he was gifted or not, because most people never read his opinions, or have any idea what they’re about, except that he frequently came out on the left. Most lawyers and jurists would agree he was gifted, of course. But not most people. They only know that he was for abortion, for example, so must be wrong, and therefore can’t be very smart. Which leads to my point: the average person has no idea what goes into making a good justice, because the average person doesn’t often think in terms of “good, well thought out argument, but still false.” It’s only “they disagree with me, so they’re dumb” (see here at around 45, for example: http://www.millennialstar.org/index.php/2005/09/01/fair_conference_transcripts#comments.) Accordingly, I don’t think the court’s prestige goes up or down on a HM nomination among most Americans, as they are really looking at end results, as opposed to whether she can make a good legal argument, to make their decisions.

  96. jimbob on October 12, 2005 at 7:50 pm

    My new mantra: edit, then submit. Please omit the last parenthetical in 96.

    [Editor- done]

  97. Eric S. on October 12, 2005 at 8:05 pm

    jimbob:

    Amen. I have often told people my two favorite SCOTUS justices are Brennan and Scalia. Anyone who has read lots of Supreme Court cases can understand this; nobody else can.

  98. lyle on October 12, 2005 at 10:26 pm

    All:

    http://www.rightsideredux.com/2005/10/exclusive-video-conservative-ice-age.html

    This is just hilarious!!! and better yet, it comes from a quasi-bloggernaclite.

  99. Adam Greenwood on October 13, 2005 at 10:24 am

    The Harriet Miers petition (Assyrians not allowed, I’m afraid):

    http://frum.nationalreview.com/archives/10122005.asp#079360

  100. Adam Greenwood on October 13, 2005 at 10:20 am
  101. Justin @ RSR on October 13, 2005 at 10:23 am

    Better yet, the video comes from an ardent T&S reader :)

  102. Justin @ RSR on October 13, 2005 at 10:25 am

    I should also note… the video is the fun part… the real work that I’ve done on Miers is here:
    http://www.rightsideredux.com/projects/miers/procon.htm

  103. Adam Greenwood on October 13, 2005 at 12:08 pm

    a PDF of Harriet Miers testimony in which she says the NAACP is good and the Federalist Society is bad:
    http://www.nationalreview.com/pdf/MiersExcerpt.pdf

  104. Adam Greenwood on October 13, 2005 at 12:39 pm

    I guess I should also hat tip to Drudge, who broke the story, along with her membership in something called the Democratic Progressive Voters League:

    http://www.drudgereport.com/flash4hmn.htm

  105. Adam Greenwood on October 14, 2005 at 4:25 pm
  106. Adam Greenwood on October 14, 2005 at 4:33 pm

    A discussion of those articles, http://msnbc.msn.com/id/9695519/:

    MATTHEWS: Welcome back to HARDBALL and Robert Bork. You’ve minced no words about this nomination. Do you want to not mince them again? what do you think of Harriet Miers for the Supreme Court?

    ROBERT BORK, FMR. SUPREME COURT NOMINEE: Well, at first, we didn’t know she had any qualifications. Now I think we’re learning that she is disqualified or unqualified.

    MATTHEWS: How so?

    BORK: Well, take a look at this morning’s ?New York Times? David Brooks column.

    MATTHEWS: Brutal.

    BORK: Yes, and he …

    MATTHEWS: She can’t write.

    BORK: She can’t write, and she can’t think except in cliches, apparently.

    MATTHEWS: These long, latinate words conjoined together in an almost mystical fashion. But it was that theory?with David Brooks, who I know pretty well, was going through was her document that she put out, I guess her manifesto, when she became head of the Texas Bar.

    BORK: No, that was?she wrote a column for the ?Texas Bar Journal? and it’s nothing but cliches of thought and the writing is terrible. It’s not anything like a Supreme Court justice should be.

    MATTHEWS: So the tight, economic of a court decision, she is not capable of writing?

    BORK: Apparently not, as far as one can tell.

  107. Adam Greenwood on October 14, 2005 at 5:31 pm

    The White House has been claiming lately that Harriet Miers does have a good deal of experience with judicial philosophy and constitutional issues. It’s proof? She’s been actively involved with the White House Judicial Selection Committe for three years.

    Put aside how weak this response is. It may not even be true:
    http://bench.nationalreview.com/archives/079614.asp

  108. b bell on October 14, 2005 at 5:46 pm

    Adam,

    To me Bush thinks she will rule with Scalia and Thomas. Its a results (rulings the right way) based choice not a “oh my gosh she is so smart” choice

    The problem is that there is no self evident evidence that she will rule that way. I am getting more and more opposed as time goes on.

  109. b bell on October 14, 2005 at 5:46 pm

    Adam,

    To me Bush thinks she will rule with Scalia and Thomas. Its a results (rulings the right way) based choice not a “oh my gosh she is so smart” choice

    The problem is that there is no self evident evidence that she will rule that way. I am getting more and more opposed as time goes on.

  110. Adam Greenwood on October 14, 2005 at 5:55 pm

    Here’s the Brooks article, part of it anyway, that Bork mentioned:
    http://southernappeal.blogspot.com/2005/10/this-is-paintful-to-read-harriet-miers.html

  111. Adam Greenwood on October 14, 2005 at 6:02 pm
  112. Adam Greenwood on October 17, 2005 at 11:08 am

    The (not very significant, in my opinion) Harriet Miers as bad property-owner story
    http://www.newsday.com/news/nationworld/nation/ny-usmiers1016,0,3241483.story?coll=ny-nation-big-pix

  113. Chris Grant on October 17, 2005 at 2:09 pm

    More not very significant facts:

    NROers think that Miers looks like Helen Thomas and that it’s worth pointing out that the Texas judges appearing with President Bush this morning areold men with white hair.

  114. Adam Greenwood on October 18, 2005 at 10:37 am
  115. Chris Grant on October 18, 2005 at 11:21 am
  116. Jonathan Green on October 18, 2005 at 11:37 am

    Adam, or some other law-enabled reader, I have a question. On a couple websites I’ve read, there’s been a recent bout of energy concerning an Oct. 3 conference call with various evangelicals in which a couple judges who know Miers said that she would vote to overturn a particular case that is a cause celebre for left and right, but not part of my question. Now people are talking about subpoenas for the judges and anyone else present, including Dobson. My question: why is this kind of thing a big deal, legally speaking? Everything I’ve read assumes that the biggest faux pas a nominated justice can commit is to say in advance how they’d vote on a particular case. I admit it’s tasteless, transmitting in plaintext what is only tolerated in code, but how, legally speaking, does it affect the nomination process? Any insight here?

  117. Adam Greenwood on October 18, 2005 at 12:42 pm

    The quality of Miers’ legal reasoning”
    “http://www.washtimes.com/commentary/20051017-092323-3416r.htm”

    Miers and the Right-to-Life Amendment:
    http://bench.nationalreview.com/archives/079915.asp

  118. Adam Greenwood on October 18, 2005 at 12:46 pm

    Jonathan Green,

    There’s a judicial code of ethics which says that judges should recuse themselves from specific cases that they’ve taken a pre-announced opinion on.

    Whether that code is sensible and whether a Justice has to follow it are open questions.

    My personal view is that a nominee who discusses her views of a past Court decision in is not pre-committing herself on any specific case that might come before her in the future.

  119. Kaimi on October 18, 2005 at 12:49 pm

    Chris Grant,

    I checked your link and didn’t see a retraction from Frum.

    As of yesterday, he’s still asking people to sign his petition asking that her nomination be withdrawn.

  120. Chris Grant on October 18, 2005 at 12:57 pm

    Kaimi:

    The petition has not been retracted but is itself a retraction of the attitude Frum expressed in his 7/4/2005 diary.

  121. Chris Grant on October 18, 2005 at 12:58 pm

    Re #121, I owe a hat tip to Hugh Hewitt.

  122. Chris Grant on October 18, 2005 at 1:16 pm

    Adam Greenwood writes: “The quality of Miers’ legal reasoning”
    ‘http://www.washtimes.com/commentary/20051017-092323-3416r.htm’

    This article is by Bruce Fein. By way of comparison, here’s what Fein said about Clarence Thomas when he was nominated:

    “”He gets an A-plus for politics and a C-minus for law. . . . [He is] inarticulate and almost clumsy in explaining his legal positions. . . . He hasn’t even articulated anything like a refined explanation of how to make Supreme Court decisions. Ninety-five percent of what he said you learn as a first-year law student. . . . President Bush’s nomination of Judge Clarence Thomas to replace retiring Justice Thurgood Marshall continues the post-Bork mediocrity tradition.”

  123. Raine on October 21, 2005 at 11:45 pm
  124. lyle on October 23, 2005 at 10:58 am

    Still more:

    Apparently, Miers would flunk if she had a voting rights act final:

    http://www.latimes.com/news/nationworld/nation/la-na-miers22oct22,0,1244386.story?coll=la-home-headlines

  125. Raine on October 25, 2005 at 3:46 am

    “Evidence Has Turned Against the Miers Nomination”–

    http://realclearpolitics.com/Commentary/com-10_25_05_JKE.html