Pro-life, Pro-Constitution

October 3, 2005 | 287 comments
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Us pro-lifers and constitutionalists are learning again what we should have already taken to heart: put not your trust in princes. Yes, we always rely on Egypt, and Egypt always turns out to be a reed, shaken with the wind.

[Those of you who think this shows I should really rely on Assyria - save your breath.]

Update:

Take that, Egypt.

287 Responses to Pro-life, Pro-Constitution

  1. lyle on October 3, 2005 at 8:40 am

    I believe a friend of mine said it best:

    Bush lied, Children died.

    No…even if Bush had put two on-the record overturn Roe nominees on the Court, it _would not_ have changed anything because Roe still had five votes. However, he said he would appoint in the mold of Scalia/Thomas…and two solid choices might have arguably restored some sanity to the consitution and saved the Partial birth abortion and parental notification laws.

    He has now broken that promise twice. I think that the GOP is in for a bad mid-term election. They just lost somewhere between 20-35% of the evangelical base which will not vote for a party that doesn’t keep it’s word; and doesn’t fulfill promises.

  2. danithew on October 3, 2005 at 8:53 am

    Is Harriet Mier’s position on abortion known yet?

  3. Adam Greenwood on October 3, 2005 at 8:57 am

    I’m such a fool. Here I am, fifteen minutes after having supposedly learned my lesson, and I’m already writing Senators and potential 2008 candidates about the nomination. What’s wrong with me?

    Danithew,
    No, we don’t know anything about her views on Roe v. Wade or anything else, and by the time the confirmation process is over I reckon we still won’t. Her main qualification appears to be that she and the President are tight.

  4. Adam Greenwood on October 3, 2005 at 9:14 am

    A different view:

    http://bench.nationalreview.com/archives/078249.asp

    But I’m not buying it. When both the Bible and pessimism agree . . . . :)

  5. danithew on October 3, 2005 at 9:16 am

    So the main objection being expressed is that neither of the Bush candidates is a confirmed known pro-life quantity …

  6. Adam Greenwood on October 3, 2005 at 9:24 am

    True, but if HM were Roberts Redux, that would be a different story.

  7. lyle on October 3, 2005 at 9:38 am

    Danithew:

    No, the objection is that Harriet Miers has zero qualifications to be a Supreme Court pick.
    The main positive thing to be said about her is that she has been a trailblazer; i.e. first woman to do a few things (1st partern in a TX firm, 1st head of Tex Bar Assoc). Sorry, that doesn’t make one SCOTUS material in my book.

  8. Ivan Wolfe on October 3, 2005 at 9:38 am

    I guess I’m more agnostic on this issue:

    1. I never put my trust in either Egypt or Assyria

    2. I don’t know enough about the nominee to be depressed.

    I’m confused by all the preemptive pessimism.

  9. Ivan Wolfe on October 3, 2005 at 9:40 am

    OR it could be this
    http://bench.nationalreview.com/archives/078265.asp

    Don’t worry, it’s all just a Rovian strategy to pick someone who has little apparent qualifications so the Dems can spend all their capital attacking her. Eventually, Bush will give up and she won’t be confirmed. Then, he announces his TRUE pick, and the public runs out of patience for the dems trying to defeat two in a row. Eh? Eh?

  10. Adam Greenwood on October 3, 2005 at 9:41 am

    “Preemptive pessimism” – my life motto. (grin)

  11. danithew on October 3, 2005 at 9:47 am

    I can understand if conservatives are disappointed because they don’t know for sure that this candidate is ardently pro-life or not. But to condemn the pick altogether or to utterly despair that these two picks will be good for conservatives — it just seems a bit premature.

  12. Adam Greenwood on October 3, 2005 at 9:49 am

    Danithew,

    You have to look at the track record of previous nominees whose views were not know. They all ‘grew’ in office.

  13. Jared on October 3, 2005 at 9:51 am

    Is it just me, or does she look a little like a female version of a Star Wars character? You need a close-up. Look at a few pictures from the different news sites.

  14. Russell Arben Fox on October 3, 2005 at 10:04 am

    I’ll try not to get pulled into this, as I’m not and haven’t been a Bush supporter anyway. But here’s what David Frum, who is a Bush supporter, has to say (here: http://frum.nationalreview.com/):

    “[Harriet Miers] rose to her present position by her absolute devotion to George Bush. I mentioned last week that she told me that the president was the most brilliant man she had ever met. To flatter on such a scale a person must either be an unscrupulous dissembler, which Miers most certainly is not, or a natural follower. And natural followers do not belong on the Supreme Court of the United States….Again and again, George Bush has announced bold visionary policies – and again and again he has entrusted the execution of those policies to people who do not believe in them or even understand them. This is most conspicuously true in foreign policy, but it has been true in domestic policy as well. The result: the voice is the voice of Reagan, but too often the hands are the hands of George HW Bush. Or worse. George HW Bush made his bad appointments in the name of replacing Reaganite “ideology” with moderate Republican “competence.” He didn’t live up to his own billing, but you can understand his intentions. But the younger Bush has based his personnel decisions upon a network of personal connections in which competence plays no very large part.”

  15. GeorgeD on October 3, 2005 at 10:06 am

    I have been a Bush supporter but this appointment is too cynical an calculating for me.

  16. lyle on October 3, 2005 at 10:12 am

    Danithew: Compare her record of accomplishments with each and every other nominee (who became a justice). Does it look comparable? My answer is no, what is yours?

    The most similar pick I can think of is that of Justice Sutherland; who was a close friend of the president. However, he had the advantage of having been a U.S. Senator and a President of the _U.S._ Bar Association.

    So let’s compare:

    Close friend to President? Yes.
    Previously elected to a political office? No.
    Bar association experience? Yes, but much lower.

  17. danithew on October 3, 2005 at 10:29 am

    Lyle, I should make it clear that I’m not advocating Meirs as I had not heard of her until today. I’m just surprised at the level of disappointment that is being expressed by some, based on the lack of information that we have at this time.

  18. lyle on October 3, 2005 at 10:33 am

    Danithew: I understand, and I’m trying to answer your question; i.e. you shouldn’t be surprised. Look at her resume, or lack thereof. If her resume had more credentials & accomplishments, then there would be more information. It is the lack of substantive information that has created the shock & outrage.

    The WH comment line (202.456.1111] is currently swamped. Why? Because after a poll showed that americans want the _most qualified_ appointee, they get one who has almost no qualifications. Sadly, not even the ABA can be trusted to give her the lower rating of “qualified” or “unqualified.” Liberals know they have won, so they don’t have to fight.

  19. cooper on October 3, 2005 at 10:47 am

    MSM is stating she’s Pro-Life. So it must be true! ;-)

  20. Seth Rogers on October 3, 2005 at 10:57 am

    As long as she doesn’t follow the model of competence set for us by previous Bush cronies, I’m not sure I care what her abortion views are.

  21. gst on October 3, 2005 at 11:00 am

    Danithew: The disappointment comes from the fact that the president didn’t nominate any one of a dozen preeminent conservative legal minds, any one of which could have been confirmed, but instead went with his friend.

    I didn’t volunteer a week of my time in 2004 to disenfranchise poor voters in a swing state to get Harriet Miers on the Supreme Court!

  22. Jack Sprat on October 3, 2005 at 11:07 am

    According to abcnews.com:

    “Reid had personally recommended that Bush consider Miers for nomination, according to several sources familiar with the president’s consultations with individual senators. Of equal importance as the White House maps its confirmation campaign is that the Nevada Democrat had warned Bush that the selection of any of several other contenders could trigger a bruising partisan struggle.”

    So this is a compromise choice? Already vetted?

  23. danithew on October 3, 2005 at 11:14 am

    All I can say is that this will be an interesting process to watch. It seems to me that it is still very possible that Bush has carefully selected conservative nominees who can get through a confirmation process largely unscathed. Of course only time will tell us how confirmed nominees will ultimately make their decisions on the bench.

  24. Seth Rogers on October 3, 2005 at 11:14 am

    I’ve heard some say that she was a Democrat in the 1980s …

  25. lyle on October 3, 2005 at 11:20 am

    And I largely don’t care about whether the nominee is confirmed or not; this one or the last one.

    I do care about qualifications. Roberts had them (even if I don’t think he was the best pick to be a Scalia/Thomas), Miers does not.

    Stealth nominations are not what I call healthy politics; or a healthy judiciary.

  26. cooper on October 3, 2005 at 11:23 am

    Althouse has this currently:

    Schumer looked happy.
    Senator Schumer had on his jovial demeanor as he talked about the Miers nomination at his press conference, which I saw part of just now on C-Span. He indicated that Miers was one of the names on the list of acceptable candidates the Democrats gave to President Bush.

    Adam I think I’m with you on this one.

  27. Guy W. Murray on October 3, 2005 at 11:26 am

    She has as little qualification (or less) than Clarence Thomas did, and none of the political pluses of Thomas. The disparity between the Roberts and Miers nominations could not be more pronounced.

  28. B on October 3, 2005 at 11:28 am

    From Drudge:

    “Harriet Miers gave cash contribution to the Democratic National Committee in 1988 and Gore campaign — while Bush dad was running!…

    On a conference call this morning, former RNC Chairman Ed Gillespie admitted sheepishly that Miers was a Democrat througout the 1980s; asked specifically about the Gore contribution, Gillespie said that she was a ‘conservative’ democrat who later became a republican… Developing…”

  29. gst on October 3, 2005 at 11:29 am

    In the plus column, she does have experience clearing brush alongside the President at Crawford.

    I’m going to open a vein.

  30. Jack Sprat on October 3, 2005 at 11:47 am

    gst, may I suggest a stingray spine through the tongue? It worked for the Classic Maya…at least until their society collapsed, probably over scandal in the Teotihucano maize futures markets rather than weak judicial nominees…

  31. Eric S. on October 3, 2005 at 11:50 am

    News is the White House switchboard is being overwhelmed with irate ersatz Bush supporters calling in to vent. Maybe Karl Rove can find a previously overlooked “nanny” problem or somethign similar, they can take a mulligan, and try again with a truly qualified, non-crony pick. One can only hope.

  32. john fowles on October 3, 2005 at 11:52 am

    Adam, I was very impressed with Roberts. Frankly, I am surprised to see your vehement rejection of Roberts. Would a crusading anti-Roevian really have been a better choice than Roberts?

  33. john fowles on October 3, 2005 at 11:54 am

    Also, Roberts was speaking in code (or seemed to be) at some points in his confirmation hearings. His stroke of genius was criticizing Lochner when asked about penumbral rights of substantive due process. No dem could argue with him about the Lochner criticism. And yet he was clearly making veiled references to Roe v. Wade with his Lochner criticisms, it seemed to me.

  34. lyle on October 3, 2005 at 11:56 am

    John: As with others, I didn’t work so hard to elect Bush to get his buddy put on the Supreme Court. I have a sinking feeling that the GOP is going to get a big haircut…in 06.

  35. Geoff B on October 3, 2005 at 11:57 am

    My personal opinion is that we conservatives should wait before getting too upset. Miers may surprise us. I used to be a Democrat through most of the 1980s and 1990s (until I made some lifetime adjustments). Maybe Miers is maturing. Maybe she is a stealth conservative that Bush is trying to get by Ried and Democratic leaders. I think we need to have a bit of faith on that issue. Now, watch Miers prove me wrong and be the deciding vote on legalizing SSM nationwide…

  36. Clark on October 3, 2005 at 12:04 pm

    I agree Lyle. As the quote Russell gave said, Bush speaks like Reagan and acts like…

    What is worse? Someone who is competently wrong or someone who is right but then implements it totally incompetently.

    I think Republicans will get a shave in 2006 and at this stage I’m almost ready to say they deserve it.

  37. Steve Evans on October 3, 2005 at 12:08 pm

    Wow, I agree with Lyle and Adam!

    I am not sure that a justice on the Supreme Court need have served previously as a judge; however, this appointment is worrisome. Such question marks out there…

  38. john fowles on October 3, 2005 at 12:10 pm

    Lyle, I said nothing about Miers. I was talking about Roberts. I am truly surprised to hear your and Adam’s dismissal of his merit as a Supreme Court Justice.

  39. gst on October 3, 2005 at 12:11 pm

    Geoff B.: With 55 Republican senators, and enough red state Democrats who saw the price that Tom Daschle paid for judicial obstructionism and therefore unwilling to filibuster, why in the world should the (second term) President worry about sneaking someone by Reid and Schumer? He should have steamrolled them. He should have nominated Judge Bork, for crying out loud. This morning’s announcement should have been the payoff that’s been 20 years coming.

    I too hope that she turns out to be a conservative along the lines of Scalia or Thomas, as we were promised. She may be. But the fact is that no one knows–not even the President.

  40. gst on October 3, 2005 at 12:12 pm

    I have nothing against appointing a practitioner with no judicial experience. Harriet Miers, however, is not Carter Phillips.

  41. Geoff B on October 3, 2005 at 12:14 pm

    GST, hard to disagree with your #39. I’m just trying to be optimistic.

  42. gst on October 3, 2005 at 12:16 pm

    I’m hopeful, but not optimistic.

  43. Ryan Bell on October 3, 2005 at 12:17 pm

    gst, very convincingly put. All the history past and present that leads up to or turns on this moment, and the President decides to just pick a buddy. I think the propensity to think of his friends as the only people that can be appointed to anything may go down as this president’s most damning characteristic. Man, it really, really bugs me. And all the while there are many, many good, talented, brilliant people out there that would bring a real contribution to the court, regardless of ideology. Who cares about avoiding a fight. Who cares about your approval ratings. Make a pick that you’ll feel good about in 30 years, not one that is going to make the going just a tiny bit easier for you in the here and now. Pathetic.

  44. lyle on October 3, 2005 at 12:18 pm

    John: See #25. My point wasn’t to Robert’s lack of qualification (he has plenty)…but Miers’. However, Bush said he would appoint in the mold of Scalia/Thomas. No one has credibly argued that Robert’s is such. So, while he is certainly qualified _legally_, he is _not_ qualified as to the most important qualification: How Bush _promised_ the electorate he would choose nominees to the Court.

    Bush may prove to be a stunning President if Iraq & middle east Democracy triumph over Religious Terrorism. However, he will remain a millstone around the neck of politicians trying to get religious voters who feel strongly about integrity to remain involved in politics.

  45. gst on October 3, 2005 at 12:20 pm

    You know who else would have been a fun nominee is Professor Stephen Calabresi.

    Senator Leahy: Are you now or have you ever been a member of the Federalist Society?

    Prof. Calabresi: Well, I suppose so. I mean, I founded it, and I’m the co-chairman, so yes.

    Though young, I suppose he’d have to resign after a certain number of years, having gone on the record for Supreme Court term limits.

  46. Adam Greenwood on October 3, 2005 at 12:25 pm

    I have no beef with John Roberts and John Fowles.

  47. john fowles on October 3, 2005 at 12:28 pm

    Lyle, I think you are assuming too much about John Roberts. What I heard him say during the hearings was basically that he believes in originalism. That means he is in the “mold” of Scalia and Thomas. It was a good thing, do you not agree, that Roberts said that he would approach his job pragmatically, rather than with a strict ideology stated in advance?

    I do not think that Bush reneged on any promise by nominating Roberts. The Roberts nomination surprised me initially, but I now think he was the best possible pick Bush could have made. Frankly, the dems who opposed him look positively asinine for doing so to such an obviously correct choice for the Supreme Court.

  48. B Bell on October 3, 2005 at 12:37 pm

    Chill,

    Lets see what else comes out about her prior to opening our viens. Not to worried about the fact that she used to be DEM. Lots of older politicians in TX used to be Dems. That is how the state was 20-30 years ago.

    Not in favor of the cronyism though.

    I my holding my fire until I know more.

    Cheney will be interviewed shortly about her.

  49. Adam Greenwood on October 3, 2005 at 12:42 pm

    “Just talked to a very pro-Bush legal type who says he is ashamed and embarrassed this morning. Says Miers was with an undistinguished law firm; never practiced constitutional law; never argued any big cases; never was on law review; has never written on any of the important legal issues. Says she’s not even second rate, but is third rate. Dozens and dozens of women would have been better qualified. Says a crony at FEMA is one thing, but on the high court is something else entirely. ”

    http://corner.nationalreview.com/05_10_02_corner-archive.asp#078320

  50. B on October 3, 2005 at 12:45 pm

    Some interesting background info. on Miers from Texas Supreme Court justice Nathan Hecht and others:

    http://www.freerepublic.com/focus/f-news/1495754/posts

    Note the comment (in the above article) by a conservative Christian attorney who worked with her in TX:

    “Harriet could have become a conservative in Washington, but unless she did, she doesn’t have any particular judicial philosophy… I never heard her take a position on anything… We’ll have another Sandra Day O’Connor… Harriet worships the president and has called him the smartest man she’s known. She’s a pretty good lawyer…. This president can be bamboozled by anyone he feels close to. If a person fawns on him enough, is loyal, works 25 hours a day and says you’re the smartest man I ever met, all of a sudden you’re right for the Supreme Court.”

  51. Mike Parker on October 3, 2005 at 12:45 pm

    Personally, I’m far less concerned with Miers’ relationship with Bush and her views on abortion than I am on how she would rule on individual rights issues and reining in the federal government’s massive overstepping of their enumerated powers.

    But since the same big-government types (of both parties) are the ones nominating and confirming her, I don’t expect much in this area.

  52. Seth Rogers on October 3, 2005 at 12:49 pm

    I just hope she writes better opinions than O’Connor did.

    Returning to Adam’s original point however … I’ve always held that the Mormons were going to be ultimately let down by the Republican Party. Of course, I always said that for different reasons, but oh well.

  53. Seth Rogers on October 3, 2005 at 12:50 pm

    And what about her views on campaign finance reform? I more concerned about that than Roe v. Wade.

  54. gst on October 3, 2005 at 12:58 pm

    I concur with B Bell that the fact that she was a Texas Democrat in the 1980s is not, in itself, particularly distressing. Phil Gramm used to be a Texas Democrat.

  55. Adam Greenwood on October 3, 2005 at 12:59 pm
  56. Aaron Brown on October 3, 2005 at 1:02 pm

    It’s not everyday that I agree with both Adam and Lile.

    Today is one of those days.

    Regardless of what we learn about Miers’ constitutional views over time, this seems to have been a wasted opportunity. I agree with Frum that there were so many top-notch judges that could have been picked that it’s a crying shame to have bypassed them all.

    Aaron B

  57. lyle on October 3, 2005 at 1:03 pm

    John: I like bright line rules. Pragmatism is code…for situational ethics & decisions. The law should provide guidance, not be “pragmatic” and attempt to divine what “the people” want. Either the law is the law…or we have a super legislature.

    As you point out…the Dems looked stupid attacking Roberts. Bush should have nominated someone with equally bright credentials.

    On a related point: How comfortable are folks with a justice who has raised no children? While results oriented jurisprudence is a bad thing…if it is the way SCOTUS works, then I’d rather someone who understands what family is and means. Leaving Sheri Dew aside…Miers doesn’t come close to this…as noble as her taking care of her ailing mother is.

  58. Nate Oman on October 3, 2005 at 1:07 pm

    What a farce! When W. nominated Roberts I was frankly impressed, and thought, “Hey, good for him. Rather than going after some political gimick to get the first __________ on the Court he just picked a boring white guy whose only possible qualifications for the Court were that he was eminently qualified.” Now we get cronny politics at its worst. This is Souter all over again. A not so legally sophisticate Bush in the White House who picks someone on the basis of personal knowledge and trust. With Souter it was Sanunu — former governor of NH, Souter friend, and White House Chief of Staff — telling Bush senior that Souter was a good guy. As if Sanunu knew the first thing about constitutional law or the federal judiciary! I can only hope that Miers is not as bad as she appears or that Bush is playing some very deep political game. (Niether is likely — legal nebbishes who end up on the Court always seem to end up tilting left, e.g. Warren, Blackmun, Souter; and, as for the other one — good grief!)

    I wonder if there was some sort of internal power shift that went on. Frankly, Roberts just looks and smells like a DOJ appointee. He is a lawyer’s lawyer, the kind of person that the OLC or the SG’s office would pick. Meir looks like pure White House — “Hey look! She is a woman! She knows all that lawyer stuff! And the Big Man really likes her! What could possibly go wrong?!”

  59. gst on October 3, 2005 at 1:11 pm

    I don’t care whether a justice has raised children. Discussion of whether a particular appointee is married or has children often seems like thinly-veiled discussion of whether a person is homosexual or not–see, e.g., Souter. I wouldn’t be distressed if Bush nominated a gay legal conservative, a la Walter Olson.

  60. gst on October 3, 2005 at 1:13 pm

    Nate’s spelling gets even worse when he’s angry!

  61. Rosalynde Welch on October 3, 2005 at 1:14 pm

    (Politics aside, I’m just intrigued by Eric S.’s description in #31 of “ersatz Bush supporters”…. What, I wonder, is an ersatz Bush supporter?)

  62. Davis Bell on October 3, 2005 at 1:15 pm

    Very dissapointing. When Frum is dissing her, it’s time to head for the basement.

    I kind of hate the screechy rhetoric from the left on Bush, but at times he gives them a lot to work with.

  63. gst on October 3, 2005 at 1:19 pm

    Rosalynde (#61): I assumed he meant “erstwhile.”

  64. Nate Oman on October 3, 2005 at 1:19 pm

    Great! We now live in a world where being a partner at Locke Purnell Boren Laney & Neely (whoever the hell they are) qualifies one for the Supreme Court of the United States. Even such delightful non-entities as Powell at least had the presidency of the ABA to his credit. (Mind you, it is not much of a credit; but at least is was back in the days when the ABA was still mainly interested in stuff like the improvement of professional ethics rather than the ideological vetting of judges under guise of professionalism.) Sheesh! Even if we aren’t going to get Michael McConnell, at least do the decent Gerald Ford thing and pick John Paul Stevens, who was universally admired at the time of his elevation as a extremely competent judge on the 7th Circuit.

    The current “left” on the court has no Brennan to play Iago to Meirs’ Othello/Blackmun. On the other hand, I can imagine the first Meirs’ opinion suffering trial-by-Scalia dissent and watching her scuttle along the path of Souter. Give me Breyer or Ginsburg over this — at least both of them were indisputable intellectual heavy weights.

  65. Geoff B on October 3, 2005 at 1:21 pm

    FWIW, my wife is listening to Rush Limbaugh, who is mostly positive about Miers. Apparently, Cheney has also assured people she will be conservative. I mostly trust Rush’s instincts on these types of things. Ok, now you can all pile on about how wrong I am and how Rush is a Bush lacky.

  66. Nate Oman on October 3, 2005 at 1:22 pm

    My impression of Rush is that he is an intellectual light weight but a loyal supporter. No doubt he is now on the WH short list in the event of Stevens’s untimely demise.

  67. gst on October 3, 2005 at 1:26 pm

    Geoff, the point is we shouldn’t have to be in the position of taking the Administration’s word that they’ve appointed a conservative. We should have a nominee who is indisputably conservative. The President took a massive flyer with a lifetime appointment to the evenly-split Highest Court to give the job to his friend. Whatever her politics turn out to be, it’s a bleeding crime.

    And even if she does turn out to be a conservative, she’s clearly not a hard hitter.

    I was hoping for Michael McConnell, and prepared to settle for one of the Ediths. Instead we get this.

  68. B on October 3, 2005 at 1:29 pm

    I’m looking forward to Ann Coulter’s take on this!

  69. Clark on October 3, 2005 at 1:36 pm

    Nate, while I dislike Limbaugh, I think he’s been consistently critical of Bush. The summer prior to 9/11 he was highly critical of Bush’s domestic policy. Likewise the year prior to the election. And the last while, over spending. I don’t think Limbaugh is sophisticated in his analysis – although that’s partially due to the audience. I find that he seems to use a lot of strawmen and wishful thinking. But it’s hard to tell how much is due to the talk radio format. There are definitely better people. (I can’t stand O’Reilly either)

    I think the problem I have is that a nominee shouldn’t just be a ideological stamp. i.e. vote for her because she may overturn Roe. I think Roberts was so fantastic (although admittedly I’m no lawyer, so take that for what it is worth) because he was very intellectual. And he appears to be conservative. But he’s a thoughtful conservative. This one… I don’t know.

  70. lyle on October 3, 2005 at 1:38 pm

    The selection process is sick and dangerous when it depends on nominees whose views are unknown and the party in power has to resort to smoke filled back room emails to comfort their supporters and keep them from scalping them.

    Prof. Davis of BYU wrote a book about how Supreme Court nominations are like/should be elections. Today just proves his point.

    The only upside:

    Because Robert’s was made the Chief Justice, we don’t have to worry about Scalia resigning in disgust. If Bush had made Miers the Chief…hopefully someone with some decency would have stood up and said “No!”

  71. gst on October 3, 2005 at 1:44 pm

    Nate, your gentility compels you to refer to the eventual demise of Justice Stevens as “untimely,” though, actuarially speaking, isn’t it about time?

  72. B Bell on October 3, 2005 at 1:48 pm

    evidence of anti-abortion on demand views.

    http://www.breitbart.com/news/2005/10/03/D8D0MMQG0.html

  73. Ryan Bell on October 3, 2005 at 1:50 pm

    Nate, be kinder to Justice Powell’s heritage. He worked at Hunton & Williams before goint to the Court, where I spent a few summers during law school. That’s two luminaries who came from Hunton, so it must be worth something.

  74. Heraclitus on October 3, 2005 at 2:00 pm

    Yeesh! “she’ll be conservative” is a feeble justification for an appointment. You can’t just vote as a judge. A judge has to give powerful reasons. Well, this should be quite a show to watch . . .

  75. lyle on October 3, 2005 at 2:05 pm

    Sadly Heraclitus…there will be no show. Liberals will realize this is the best they can get (given that Sen. Reid is the one who pushed from her in the first place!) and there won’t be any fight. The only show that might happen will be from the very conservative and very liberal; and they will largely cancel each other out.

    barring a scandal of some sort…she will be approved. Alexander Hamilton is turning in his grave…so much for decency and a sense of shame about appointing one’s personal cronies (who lack experience!!!).

    How many more people do Mormons have to convert in the U.S. before we can demand a “mormon” seat on the Supreme Court? Miers is cronyism + identity politics at its worst.

  76. Eric S. on October 3, 2005 at 2:18 pm

    63: yes, erstwhile is what I meant. Although I guess some of W’s supporters might be both irate and artifical. :-) Fingers faster than brain this morning, I’m afraid.

  77. Seth Rogers on October 3, 2005 at 2:27 pm

    You know, I wonder if Bush didn’t do this as a perverse reaction to all the accusations of cronyism that have been flying around in the past few weeks. He often seems to be going out of his way to signal that he won’t allow public opinion, no matter how widespread, to change the way he does things (Just look at Rumsfeld).

    Maybe this is just another Bush “In your face!” to the mainstream media.

  78. Seth Rogers on October 3, 2005 at 2:27 pm

    You know, I wonder if Bush didn’t do this as a perverse reaction to all the accusations of cronyism that have been flying around in the past few weeks. He often seems to be going out of his way to signal that he won’t allow public opinion, no matter how widespread, to change the way he does things (Just look at Rumsfeld).

    Maybe this is just another Bush “In your face!” to the mainstream media.

  79. Clark on October 3, 2005 at 2:59 pm

    Lyle, Reid’s involvement is what really makes me shake my head. We need a real opposition and frankly the Democrats aren’t it. How on earth could Reid have decided this was a good decision?

  80. Bill on October 3, 2005 at 3:12 pm

    Lyle, mormons will have to convert approximately 27.3 million people to equal a ninth of the population. Of course, by then the population will have grown. As it is, mormons are over-represented in the Congress.

  81. Mark B. on October 3, 2005 at 3:20 pm

    I heard Reid on CNN–in response to why he “recommended” her to GWB, it seems that the main thing was she was personable and returned phone calls.

    Yecccchh!

    To say nothing of the heavy eye makeup. (Hat tip to Imus.)

  82. lyle on October 3, 2005 at 3:28 pm

    Bill: True as to Congress. However, you presume that the population will grow when family size is decreasing. Also, that we are converting and birthing more makes getting 9% that much easier. Also, the Jewish faith is heavily over represented on the Court. Time for the other Tribes to get some representation.

  83. Greg B. on October 3, 2005 at 3:41 pm

    Lyle,

    The Census Bureau projects 400 million residents by the middle of this century. Immigration and children born to recent immigrants account for the overwhelming majority of our population growth, negating the American people’s voluntary embrace of smaller families.

    LDS do have more kids than the US average, but our conversion and retention rates do not keep pace with the influx. If we’re counting beans, US Hispanics deserved a seat 10 years ago.

  84. lyle on October 3, 2005 at 3:57 pm

    Thanks Greg. I was just wondering…and trying to find a bright spot in the identity politics game.

    This is the best comment I’ve seen so far;

    [Rick Brookhiser]

    THE GOOD NEWS ON MIERS
    It’s not as bad as Caligula putting his horse in the Senate.

  85. Jeremy on October 3, 2005 at 4:16 pm

    I wouldn’t be surprised if there was a _bit_ of strategery on the part of Reid here. Not to give him too much credit, but I think he may have figured that the dems couldn’t hope for much out of the SCOTUS nomination, so they might as well grease the rails for somebody that would cause some tumult in the party and solidify “cronyism” as an anti-GOP talking point for 2006. He can be clever when it comes to high-level party strategy (after the Jeffors defection he was known on the hill as the “Jim-Whisperer.”)

    gst, about a gazillion comments ago:
    “I didn’t volunteer a week of my time in 2004 to disenfranchise poor voters in a swing state to get Harriet Miers on the Supreme Court!”

    I can’t tell whether I find your candor refreshing or disgusting.

    I hope that as a democrat I don’t come off too smug in stating that it seems to me no surprise to me that Bush would back out on the quid pro quo he supposedly had with his base (esp. religious conservatives). I’ve always felt Bush always fostered the impression that the “self” in “self-interest” referred to “America” or “the GOP” or “Conservatives”–which perhaps bought some “good cause” points with people that would otherwise be disgusted by Roveian campaign tactics–but ultimately, “self” for Bush means just that. That’s why he’s nominating a buddy. Because he doesn’t listen to opinion polls — or opinions in general, for that matter.

  86. Adam Greenwood on October 3, 2005 at 4:31 pm

    “We now live in a world where being a partner at Locke Purnell Boren Laney & Neely (whoever the hell they are) qualifies one for the Supreme Court of the United States. Even such delightful non-entities as Powell at least had the presidency of the ABA to his credit. (Mind you, it is not much of a credit; but at least is was back in the days when the ABA was still mainly interested in stuff like the improvement of professional ethics rather than the ideological vetting of judges under guise of professionalism.) Sheesh! Even if we aren’t going to get Michael McConnell, at least do the decent Gerald Ford thing and pick John Paul Stevens, who was universally admired at the time of his elevation as a extremely competent judge on the 7th Circuit.”

    I had always thought the chances of my becoming a Supreme Court Justice were nil. Now I discover that I was right, because I am overqualified. Who woulda thunk?

  87. B Bell on October 3, 2005 at 4:31 pm

    “gst, about a gazillion comments ago:
    “I didn’t volunteer a week of my time in 2004 to disenfranchise poor voters in a swing state to get Harriet Miers on the Supreme Court!”

    I can’t tell whether I find your candor refreshing or disgusting.”

    Jeremy, where is your sense of humor?????? Are you kidding me?????

  88. Jeremy on October 3, 2005 at 4:38 pm

    B. Bell,

    Step away from the question mark key, sir. I was just deadpanning back (albeit “on the square”…)

    Another observation: is this perhaps God’s way of telling Pat Robertson to be more specific in his requests?

  89. B Bell on October 3, 2005 at 4:42 pm

    yeah,

    we are all waiting to hear what Pat R says. Maybe he will call for her assassination?

  90. gst on October 3, 2005 at 4:43 pm

    I need to clarify the record. I only volunteered for four days.

  91. Nate Oman on October 3, 2005 at 4:47 pm

    “I hope that as a democrat I don’t come off too smug in stating that it seems to me no surprise to me that Bush would back out on the quid pro quo he supposedly had with his base (esp. religious conservatives).”

    I am affraid that you do come off as smug. Oh well! Better luck next time. After all, the GOP had the fun of kicking around Gore for an election cycle. My sense is that this is less of a betrayal of a quid pro quo than the result of internal jockeying and not especially sophisticated legal thinking at the top. My bet is that W thinks, “Good woman. I know I can trust her. She is opposed to abortion. What is the worry?” I doubt that W thinks that he has sold out the base. I think that he just doesn’t have a good appreication of the difference in quality between a family lawyer cum administrative assitant cum WH counsel (who also was one of the finest and smartest people in the Houston Bar Association), and a jurist of real depth like Roberts.

  92. Adam Greenwood on October 3, 2005 at 4:57 pm

    Unfortunately I think Nate Oman’s right. I would add that he probably doesn’t have an appreciation for the difference between conservative politics and conservative judging. So someone who’s pro-business and pro-Bush, that would make them a good conservative judge, right? Wrong.

    Anyway, I hope Nate Oman’s right. Otherwise, that means our President has more than a little sense of majeste’.

  93. Jeremy on October 3, 2005 at 4:59 pm

    I am affraid that you do come off as smug. Oh well! Better luck next time.

    It’s inevitably one of those phrases that means its opposite.

    Not to sound smug = Bwaaaaaaa ha ha ha hah
    I don’t mean to play devil’s advocate, but = you’re so full of $#!+
    I hate to rain on your parade, but… = Schadenfruede, sweet schadenfreude
    Not to toot my own horn, but… = I would like to point out, precisely for the purpose of tooting my own horn, that…

    And of course,
    IMHO = BEHOLD

  94. Jeremy on October 3, 2005 at 5:13 pm

    My sense is that this is less of a betrayal of a quid pro quo than the result of internal jockeying and not especially sophisticated legal thinking at the top.

    I don’t know that those two ideas are mutually exclusive. I doubt it was a calculated bait and switch (although some evangelicals might see it that way), but I imagine Bush’s “contract” with the religious right didn’t figure into his deliberations nearly as much as the 700 Club thought it would — while other things (internal maneuvering, Bush’s loyalty to loyalists, etc.) figured more prominently.

  95. Tim J. on October 3, 2005 at 6:28 pm

    Conversation I JUST had with my Mom:

    Me: What a joke.
    Mom: What?
    Me: Bush’s Supreme Court nominee.
    Mom: Who is it?
    Me: Exactly…Some Harriet Miers.
    Mom: Hmmm..a woman. Is she black?
    Me: Hah! No.
    Mom: Where’s she from?
    Me: Guess.
    Mom: Texas?
    Me: Yep!

  96. Stephen M (Ethesis) on October 3, 2005 at 10:00 pm

    What is interesting is the number of people who have been asking for someone who has trial court experience as a lawyer and someone who was not from an elite law school.

    The Texas Supreme Court was recently criticized (prior to the rather large amount of turnover) for not having more people with real litigation experience on it. Outside of the elitist types, there is a real feeling that the Courts suffer from not having that perspective.

    I’m not necessarily claiming that M is the person to bring that perspective to the Court, only that the critique is very popular in some circles.

    Not to note that the harshest attack I’ve read so far has come from an elite law school grad with little experience actually picking juries, arguing to them, and living with the results of Daubert and other cases in “normal” litigation (vs. white shoe firm litigation).

    Also interesting that R. approved of her in spite of her 60 years in a very conservative evangelical church.

  97. Stephen M (Ethesis) on October 3, 2005 at 10:02 pm

    BTW, it speaks volumes that she was the only one who was polite to a non elite (if you can speak of R. that way) and the only one who returned phone calls.

  98. Seth Rogers on October 3, 2005 at 11:03 pm

    I don’t know, my school managed to snag O’Connor as a speaker last year. And Wyoming is about as un-elite as you can get. Of course, she also has roots there, but still …

  99. lyle on October 4, 2005 at 12:08 am

    A promise is a promise. Bush broke it.

    As a campaigner, George Bush said that he would nominate judges who could be expected to apply strict construction to the Constitution. He identified Justices Antonin Scalia and Clarence Thomas as his favorites judges. When Bush nominated Harriet Miers today, however, Texas Senator John Cornyn, who knows her well, confidently asserted that “She is obviously not a Scalia or a Thomas.” So, even if it’s not in quite the same league as his dad’s no new taxes pledge, I’d say this is another Bush promise broken.

  100. John Mansfield on October 4, 2005 at 8:01 am

    So how do you suppose this Miers nomination affected Roberts’ self image? Last week, he sailed through the comfirmation process and was sworn in as the highest judicial authority of the land. Decades of hard work and professional excellence had paid off. Perhaps alone with his wife, he had celebrated quietly. “We did it.” Then, this week, he learns who his closest competition for a seat on the court had been. It has to take a little of the shine off.

  101. Adam Greenwood on October 4, 2005 at 8:07 am

    A friend who has his fingers in various Beltway pies writes that he is disappointed but that folks he trusts who know HM think she’ll at least vote right on the big cases, if not necessarily leaving the opposition writhing in the crushing grip of reason. We shall see. I certainly hope so.

    Here’s my reply to my friend:

    So you are disappointed but hopeful?

    I agree that there’s reasons for hope, but mostly I’ve
    been pretty disappointed. Hopefully my hope comes
    back to the forefront at some point.

    But hope, I think, isn’t enough reason to support the
    nomination. You are obviously in a different position
    than I, and I’ve calmed down from my initial reaction
    of saying that I would never support a candidate who
    did not now oppose the woman (I was pretty upset), but
    I”m still planning on emailing all 2008 candidates,
    especially those in the Senate, saying that this is a
    dubious pick and I will be watching how they handle it
    carefully.

    Besides the cronyism and the qualifications thing, I
    even have doubts about the nominee’s conservative bona
    fides. Bushian-loyalist conservatism is different
    from real conservatism in important ways, and
    political conservatism is different from judicial
    conservatism in innumerable important ways. I imagine
    that Sandra Day was a Bush supporter, e.g.

  102. Adam Greenwood on October 4, 2005 at 9:06 am

    The Volokh Conspiracy has a series of related posts, covering everything from Hamilton on pliant Justices to HM on the right to bear arms, collected here:

    http://www.volokh.com/archives/archive_2005_10_02-2005_10_08.shtml#1128399204

  103. Mark IV on October 4, 2005 at 9:26 am

    “Preemptive pessimism” – my life motto. (grin)

    Adam, you remind me of the character in the Evelyn Waugh novel (can’t remember his name, or which novel) who would rise from his bed each morning and go to the window. While looking out upon the new day, he would shake his head and recite the line from Abide With Me, which says “Change and decay in all around I see”.

    I know the feeling, amigo.

  104. Mark IV on October 4, 2005 at 9:33 am

    But, seriously, doesn’t the classical conservative position say we should expect very little from goevernment? Why would those who subscribe to this position be surprised by this appointment? The futility of human striving and all that. The other two branches of government are filled with incompetents, crooks and buffoons. The word crony was in the dictionary long before yesterday, and it will still be there long after Dubya is back in Crawford playing with the grandkids.

  105. Seth Rogers on October 4, 2005 at 9:39 am

    I once heard a news commentator remark that it took the Democrats almost 40 years in power for “power to corrupt completely.” The Republicans seem to have managed it in a mere 20 years. I’m proud of them. That’s quite an acheivement.

  106. Nate Oman on October 4, 2005 at 9:42 am

    I missed this. gst earlier wrote:

    “I have nothing against appointing a practitioner with no judicial experience. Harriet Miers, however, is not Carter Phillips.”

    Indeed.

  107. Jared Jensen on October 4, 2005 at 10:13 am

    Nate:

    Please don’t brown nose your boss on your blog. It’s embarassing that you would engage in such behavior. We live in a meritocracy dangit! Hard work means so much more than who your friends are. Oh wait . . .

    Here’s my favorite comment of the day from the WSJ editorial page:

    “Is the President sending a message that these distinguished conservatives [like Alito, Luttig, etc.] are too controversial to be nominated for the High Court, even with a Senate containing 55 Republicans? The lesson this nomination in particular will send to younger lawyers is to keep your opinions to yourself, don’t join the Federalist Society, and, heaven forbid, never write an op-ed piece.”

    Or, I would add, start a blog.

  108. lyle on October 4, 2005 at 10:46 am

    Bush just said (repeatedly):

    “I nominated the best _person_ I could find.”

    Words can’t describe what a bald faced lie this is; unless Bush is a complete idiot as some have charged. This is about as incredible as HM saying Bush is the smartest person she has ever known. I dont’ know if I am as smart as Bush or HM, but I am smart enough to know that these statements are complete balderdash.

  109. Mark B. on October 4, 2005 at 11:24 am

    Lyle,

    That’s no more a lie than Poppy Bush’s similar line about Clarence Thomas.

    I guess that dissembling runs in the family, even if the younger generation cannot pronounce it.

  110. gst on October 4, 2005 at 11:28 am

    Mark B., even when a conservative’s faith in GWB is at it’s lowest, all it takes is an asinine comment like yours to make me want to rush into the breach for him.

  111. B Bell on October 4, 2005 at 11:35 am

    Clarence turned out to be a vote the same way as Scalia on the issues that matter. Hence he is all good in my book. All that really matters is how they rule when it comes down to it not who is most qualified. This is my non lawyer (I am a business man) opinion. If HM rules like Scalia then she has my vote. IF she drifts left like Souter then Bush has screwed up in my opinion. HM has a rep here in TX as being conservative and she attends a really conservative church. Pete Sessions a really conservative rep here in Dallas is on board with her nomination.

    I am betting she will be more conservative than SDO.

  112. lyle on October 4, 2005 at 12:01 pm

    B Bell:

    That isn’t the point. Or is it?

    Bush/Rove may be trying to destroy the legitimacy of the Supreme Court. When SCOTUS is nothing but a race to get 5 votes, which the People aren’t allowed any votes, then SCOTUS as a small “d” Democratic institution will be finished.

    I don’t care if she votes the way I like. In fact, that is even more scary. I want process and bright-line rules that make sense. A system that results in a more or less dependable answer…not just the answer of whomever is making up the excuse of the moment.

  113. Aaron Brown on October 4, 2005 at 12:05 pm

    I think everyone is missing the real genius of this nomination. We all know how important “diversity” is. But I think we focus too much on race and sex as alleged proxies for real diversity. What we really need is intellectual diversity.

    Now, I always thought that having lots of smart, experienced people with widely divergent views would provide intellectual diversity. But I was’t thinking boldly enough. In reality, the best way to achieve real, literal intellectual diversity is to combine third-tier thinkers with first-tier ones! 9 brilliant people, ideologically different as they may be, aren’t really intellectually “diverse,” if you think about it. Mixing the brilliant and experienced with the stupid will accomplish this much better! Finally, with George’s help, we will have a Supreme Court that at least starts to look a little bit more like America. Now, all we need to do is wait for a few more justices to die, and then hope the President nominates some non-lawyer yokles. Then, and only then, will we have a Supreme Court that really looks like America!

    If you think about it, George’s genius and foresight is self-evident.

    Aaron B

  114. gst on October 4, 2005 at 12:07 pm

    There’s no reason to think that Harriet Miers is stupid, by any standard.

  115. Aaron Brown on October 4, 2005 at 12:09 pm

    You’re right. But “inexperienced” she certainly is (in the ways that matter), and I’m just trying to take this whole thing to an absurd conclusion. :)

    Incidently, I still like Todd Zywicki’s treatment of this subject best:
    http://www.volokh.com/archives/archive_2005_10_02-2005_10_08.shtml#1128363647.

    Randy Barnett makes some good points as well:
    http://www.opinionjournal.com/extra/?id=110007354

    Aaron B

  116. B Bell on October 4, 2005 at 12:11 pm

    Lyle,

    It is the point. What else could it be? As a conservative there is a result I am looking for. It comes with 5 justices ruling my way. Who those justices are it does not matter. What matters is the result. (am I in Biz or what?)

    SCOTUS is not I repeat not a democratic institution. Are you kidding me? Its 9 royal appointed for life justices. Not accountable to anybody.

    Since the 1950′s at least the court has been moving the country leftward on social issues. Its time for it to stop and go the other direction.

  117. Mark IV on October 4, 2005 at 12:26 pm

    Aaron B. #113,

    Aaron, right you are, but Roman Hruska, the people’s representative from the Cornhusker state, was way ahead of you. Consider the following:

    On January 19, 1970, president Richard Nixon nominated G. Harrold Carswell to the Supreme Court. While Carswell’s nomination was promptly rejected by the Senate, Nebraska Senator Roman Hruska presented a novel argument in his defense:
    “Even if he was mediocre, there are a lot of mediocre judges and people and lawyers,” Hruska declared. “They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises and Cardozos and Frankfurters and stuff like that there.”

    There is simply answer to an argument of such brilliance.

  118. Last Lemming on October 4, 2005 at 12:31 pm

    Aaron’s comment prompted me to see if October 3 was a signficiant date in the life of former senator Roman Hruska (R-NE). Alas, it was not. Nevertheless, his defense of G. Harrold Carswell (made, unlike Aaron’s suggestion, in all seriousness) is worth repeating.

    “Even if he was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises and Cardozos and Frankfurters and stuff like that there.”

  119. Last Lemming on October 4, 2005 at 12:32 pm

    Dang. Too slow on the draw.

  120. Mark B. on October 4, 2005 at 12:56 pm

    Sorry, gst, for tweaking your “asinine” button.

    I’m not sure what you think is asinine about it, though. Do you really think that either of the Georges thought that their picks (Clarence or Harriet) were the “best” people out there? If either of them thought that, then there’s something awry.

    And, if you think GWB should get a free pass on screw-ups like “disassemble” for “dissemble,” go ahead. Give him a free pass. And go, with King Hal, once more into the breach for him. Or was it “onto the beach”? Ask GWB–perhaps he’d know.

  121. gst on October 4, 2005 at 1:17 pm

    I got into this debate with commenter jimbob over at this thread, http://www.millennialstar.org/index.php/2005/10/03/how_to_ditch_roe,
    so rather than continue the threadjack there, I’m responding over here.

    In response to jimbob’s post #35 a M*:

    1. Certainly knowing the president is not an uncommon factor in judicial appointments. However, when an appointee has little else to recommend them above hundreds of other picks, then it’s problematic. So Harding appointing Taft is hardly the same thing as GWB appointing Miers.

    2. I don’t think that government service is the only acceptable credential for a Supreme Court pick. I have gone on the record above in favor of appointing a practitioner. I mentioned Carter Phillips above, not necessarily because I would appoint him but because he has the kind of private practice creditentials that one would expect in a practitioner appointed to the Supreme Court. So an attorney in private practice can certainly be a worthy appointee. Miers does not quite make the cut.

    I would also not be opposed to appointing a non-lawyer.

    3. Your point that “at my law school, most of those who went into government work did so because they had to” does not distinguish between those who take a position as secretary to the assistant deputy city attorney in Nowheresville and the student that goes to a Supreme Court clerkship and then to the Office of Legal Counsel. Guess which kind of public service is preferable in a Supreme Court nominee?

    Also, it doesn’t speak well of your law school.

    For the record, I don’t think the fact that Miers didn’t go to an elite law school is a good argument against her.

    4. Nothing in Miers’ background “irks” me. I should be so lucky as to have her outstanding career. She’s still not a good appointment.

    5. In response to “Also, no one seems to be saying what makes one ‘well-credentialed.’ They only say that Miers is not well-credentialed, and assume everyone else knows what they mean,” I refer to you Mickey Kaus, Thursday, September 29, at 1:27 a.m.: “Here is Harriet Miers’ bio … and here’s Michael McConnell’s. Assume they’re both fine people. If you had to make a snap decision, which one should be on the United States Supreme Court?”

    http://www.legalreforminthenews.com/leaders/Miers/Miers_bio.html

    http://www.law.utah.edu/faculty/bios/mcconnellm.html

    Here’s what Judge McConnell (and CJ Roberts) has that Mier’s doesn’t: an acclaimed professional lifetime of thinking, writing, and judging the work of the Court.

    6. I think my post above at #39 addresses your contention that white men were politically untenable appointees.

    In sum, the fact that other appointees have known the president that appointed them does not establish that any appointee that knows the president is an adequate one.

  122. Adam Greenwood on October 4, 2005 at 1:24 pm

    Two defenses of HM (do I mean Harriet Miers or Her Majesty? You’ll have to follow the link) and one rebuttal:

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

  123. Adam Greenwood on October 4, 2005 at 1:32 pm

    “Who those justices are it does not matter. What matters is the result. (am I in Biz or what?)”

    Yes, obviously you are, including the dont-look-past-the-next-quarter thinking. Well, maybe not, but there are reasons that results aren’t all that matters.

    1) an opinion that reaches the right result but is poorly reasoned will get less respect and have less influence than otherwise

    2) an opinion that reaches the right result for bad reasons will lead to bad results in future opinions and in the lower courts

    3) opinions that are poorly reasoned tend to lead to more litigation and more prolonged litigation, because they are hard to understand and apply

  124. B Bell on October 4, 2005 at 1:54 pm

    Adam,

    My approach is really looking past the next quarter. Its looking 30-40 years into the future. You simply need the rulings. Without the rulings you are nowhere. You did not even get a profit the first quarter without the rulings. I can see where you are going but I have seen no reason to believe that HM’s opinions will be poorly thought out or written.

  125. John Mansfield on October 4, 2005 at 2:08 pm

    There may be something to the Roman Hruska defense of mediocrity cited above. If the first-rate justice makes an intricate argument to which the the third-rate justice responds “I don’t get it,” then the first-rate justice will have to expand his explanation so that the third-rate justice, and all of America, will understand. The problem is that the third-rate justice would probably just nod blankly and say “OK, go on.”

  126. B Bell on October 4, 2005 at 2:11 pm

    Adam,

    By the way I can see that Bush could have picked better than his crony. I was really hoping for a strong obvious Conservative and then a really nasty fight in the senate.

  127. Nate Oman on October 4, 2005 at 2:18 pm

    “I have seen no reason to believe that HM?s opinions will be poorly thought out or written.”

    There is nothing to indicate that they will be well thought out or written. Furthermore, I think that you underestimate the difficulty of writing really good judicial opinions. It is not simply a matter of getting the right rulings in particular cases. The identity of those on the court changes, but well-articulated bodies of law have a way of sticking around. (Although even here it doesn’t do to put too much faith in the power of ideas.) I think that a stellar example of this is modern free speech jurisprudence. It essentially rests on a doctrinal framework created largely by Justice Brennan. At the time, many of Brennan’s free speech decisions were controversial, but over the long haul his jurisprudence in this area has remined remarkably vibrant. A large part of this has to do with the fact that at least in the free speech area Brennan provided a remarkably well articulated set of doctrinal categories and wrote opinions that were clearly designed to do more than reach the right result in the case in front of him.

    The Court currently hears something like 80 cases a year. I suspect that number will rise under Roberts, but not by much. That is only a tiny, tiny, tiny franction of a fraction of a fraction of all lawsuits in the United States. That being the case, the Court simply doesn’t exercise all that much influence by deciding discrete cases. Its real influence comes from articulating a legal framework that will be applied by lower courts across the country. Understanding how such a framwork is built and functions is considerably more complicated than simply voting the right way on abortion cases.

  128. Mike Parker on October 4, 2005 at 2:18 pm

    There’s an excellent commentary in today’s Wall Street Journal on how bad this nomination is. (Reprinted on the Cato web site.)

    A few choice quotes:

    Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush’s personal lawyer…. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?

    * * *

    To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered “judicial philosophy,” by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers’s professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.

    * * *

    Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.

  129. jimbob on October 4, 2005 at 2:32 pm

    Response to #121:
    Your point 1: We seem to be going around in circles here. Your analysis presupposes that Mier’s credentials from before she got into government weren’t good enough. You never tell me why. Same response to points 2 and 4.

    Your point 3: “Also, it doesn’t speak well of your law school.” There are a maybe couple of dozen schools out there where it doesn’t matter where you finish–you can get a job just about anywhere. Then there are all the rest of the law schools where the vast majority of those that do well grade wise typically go into the big or mid-size firms, and the rest go to smaller firms and the government. I make no pretensions towards the sense that makes, only that this seems to be the general rule. Thus, if my point doesn’t speak well of my law school, it doesn’t speak well of any law school outside those in Cambridge, Ann Arbor, New Haven, etc. More germanely, however, my point is serving in government–anywhere in government–does not make, to my mind, a more qualified candidate per-se. If you can tell me why that is untrue, I’m willing to change my mind.

    Your point 5: I think you’re making the mistake here (although I don’t know because you don’t elaborate) of assuming that someone accustomed to commenting on constitutional issues is the most qualified for the job. I think that most people forget that there are many decisions passed down by the SC that only deal with the federal constitution tangentially. Would you want McConnell in an anti-trust issue instead of an excellent corporate lawyer? I wouldn’t. How about a ADEA or Title VII action? Why is he more qualified there? Because he knows a lot about the establishment clause and can tell you why Marbury v. Madison was such a work of genius? Even in administrative issues, do you want someone versed only in the theory of constitutional and administrative law, or do you want someone who actually has had to deal with trying to get a banking deal past the OTS and so knows what the substantive arguments are really all about in terms of how they affect people and business? Sure McConnell would probably be a better choice, but that doesn’t make him, or someone with similar “credentials” the only legitimate choice. I personally think that there are already plenty of theorists on the court; I wouldn’t mind seeing what someone who knows what those decisions do to actual clients adds to the analysis.

    Your point 6: I’m not sure I disagree, but I certainly don’t fault Bush for trying to pick a candidate who wouldn’t lower his already abismal approval ratings. There’s a reason that if someone today gets the short end of a stick that that person is considered to have been “borked.”

    Your summary: “In sum, the fact that other appointees have known the president that appointed them does not establish that any appointee that knows the president is an adequate one.” Certainly I agree with that. But by the same token it doesn’t really disqualify a person either. And as I don’t know what it is you find so unobjectionable about this candidate as a justice (and don’t really want to spend a billable hour of time reading through 123 comments to find out), I’ll work from my original assumptioin: that while she isn’t the most qualified candidate the president could have chosen, I have yet to see anything that would suggest to me that she is unqualified. (I’m willing to change my mind, though.)

  130. B Bell on October 4, 2005 at 2:35 pm

    Nate,

    I agree that she is not a stellar pick and the WSJ article sums it up nicely. I am looking for a clear conservative backed up by conservative rulings and philosophy as a track record. I am not happy with Bush on this pick. There is nothing either way on how her opinions will look because she has never issued a ruling before. Bush will probably get one more pick before its all over. There is another 85 year old plus on the court correct? He is a liberal correct?

    I still think its the rulings that matter. You guys are thinking to legally with your legal background. I am thinking that 5-4 is all we need. repeat after me… 5-4 5-4 5-4 Let Roberts, Scalia, and Thomas create the opinion and then let whoever else concur until we get to 5-4.

  131. Nate Oman on October 4, 2005 at 2:42 pm

    “You guys are thinking to legally with your legal background. I am thinking that 5-4 is all we need. repeat after me… 5-4 5-4 5-4 Let Roberts, Scalia, and Thomas create the opinion and then let whoever else concur until we get to 5-4.”

    The problem of course is that the guy in the WH also has a biz background and isn’t thinking about this thing legally. Here is the silly thing, though, at the end of the day the Supreme Court is well, um, a Court, so much to the consternation of the lawyer-joke cracking world all of the lawyer stuff matters.

  132. Mike Parker on October 4, 2005 at 2:51 pm

    Last year, Bush supporters argued that we have to vote him into office, rather than Kerry, because of the judges. Sure, Republicans in Washington spend as much as Democrats, and sure Republicans support police-state stuff like the USA PATRIOT Act, and sure Republicans never challenge socialist programs once they are part of the government, and sure they sell out on everything and start wars, etc. But at least they pick conservative, strict-constructionist judges. Right?

    Well, maybe half the time.

    Given the chance to solidify a conservative Supreme Court, Bush picked a liberal who once supported Gore and is on record supporting some liberal causes.

    Republicans are still worth supporting at the state and local level, but there is no reason to support them anymore at the national level.

  133. Seth Rogers on October 4, 2005 at 2:57 pm

    On several occasions Harvard’s moot court teams got completely anihilated by our Wyoming teams (we also trashed BYU on occasion). While I’m not saying that prestige doesn’t matter, I might suggest that it’s a bit overblown. I’ve met students from the prestige schools and found them to be (surprise, surprise) no better and no worse than my classmates.

    I think HM’s lawschool credentials are a non-issue. For most of the legal world, 5 years out of law school, nobody cares where you went to school or what your grades were. At least, I fervently hope so! :)

  134. B Bell on October 4, 2005 at 3:03 pm

    Mike,

    Who do you think is a better choice if you are a conservative…. Ginsburg or Roberts. Scalia/Thomas or Breyer

    I am confident that both Ginsburg and Breyer will vote in favor of SSM. Kerry would have appointed justices just like them. On the whole Repubs still appoint better justices (esp at the lower levels of the federal judiciary) if you care about SSM.

    This current pick is really weak but one pick does not make an entire case.

  135. anon on October 4, 2005 at 3:07 pm

    Mike Parker,

    While defining “liberal” and “conservative” is a tricky business, I’m fairly certain that Miers isn’t a liberal by any definition, including the classical one.

    Seth Rogers,

    “For most of the legal world, 5 years out of law school, nobody cares where you went to school or what your grades were. At least, I fervently hope so!” You are going to be disappointed; they still care.

  136. Nate Oman on October 4, 2005 at 3:19 pm

    Seth: From what I have heard from professors, the very top students at most law schools are basically comparable, although the very, very top students at places like Harvard, Chicago, and Yale are scary, freaky, wicked smart. The big distinction between laws schools in terms of student body quality goes the issue of “how deep” into the class the quality students go. Hence, even if the top students at Wyoming are roughly as smart as the top students at NYU, the bottom students at NYU are going to be much, much better than the bottom students at Wyoming.

    FWIW, I don’t think that Meirs’ JD from SMU somehow disqualifies her for the Court. On the other hand, it is not a credential that tells you a great deal as to whether or not she is qualified. A JD from Columbia or Chicago, on the other hand, while very far from qualifying one to be a judge, does at least provide a useful bit of positive evidence.

  137. gst on October 4, 2005 at 3:36 pm

    Nate, how about a little love for Carter and me from Northwestern?

  138. B Bell on October 4, 2005 at 3:38 pm

    GST what year did you graduate from N’western?

  139. gst on October 4, 2005 at 3:46 pm

    I didn’t. I had an affair with a professor’s wife, and was therefore forced to transfer to Yale. Oh wait, that’s David Boies.

    2003.

  140. Last Lemming on October 4, 2005 at 3:51 pm

    I am thinking that 5-4 is all we need. repeat after me… 5-4 5-4 5-4

    Is it just me, or does this sound an awful lot like legislating?

  141. B Bell on October 4, 2005 at 3:52 pm

    What ward.

    NS2 or NS1

    I was in NS2 for 5 years till Summer 2001

  142. gst on October 4, 2005 at 4:14 pm

    North Shore 2 is a great ward. In fact, I can think of several members there who would make perfectly reasonable appointees to the Supreme Court.

    I was in the Chicago First Ward, not to be confused with the political subdivision created and controlled by the mafia.

  143. B Bell on October 4, 2005 at 4:16 pm

    Would love to see the current SP of the stake in the SCOTUS. Or Brian N.

  144. Seth Rogers on October 4, 2005 at 4:39 pm

    Thanks Nate, that makes sense to me.

    Anon, it sounds like you and I are talking to different people. Just about every practitioner I’ve talked to doesn’t really give a flying rip about grades one way or the other, except that they don’t have much else to judge a recent graduate on. About 5 years out, they’re more interested in your last job, or your last case.

    Of course, I wasn’t interviewing any “BigLaw” attorneys either (I would wager that we are “mutually disinterested” in each other). So that certainly skews my perception. But just remember that, by definition, the “top 10%” of law school grads are vastly outnumbered in the legal profession. I’ve even encountered predjudice against top-ten/law review applicants due to a perception that they might be arrrogant, hard to work with, and liable to backstab you and leave for another firm the moment they get a better price tag.

    But getting back on topic, this thread obviously isn’t about getting a run-of-the-mill lawyer job. It’s about getting the most prestigious legal job in America. On that score, I’ll agree that HM shows very few of the expected credentials.

  145. Jeremiah J. on October 4, 2005 at 5:07 pm

    “FWIW, I don’t think that Meirs’ JD from SMU somehow disqualifies her for the Court.”

    Understatement of the year. For all the recent talk about being “well-qualified” to serve on the supreme court, you’d think that we’d be considering someone for partner in a law firm (or less) rather than one of the most powerful positions in the country. This nominee is going to be ruling for decades to come and we’re talking about where she went to law school.

    Adam: I do believe that you are pro-constitution and pro-life. I think I’m equally pro-life but about half as much pro-constitution. And yet this thread is a good example of the frequent confusion of the two. People are throwing tantrums about how Bush has no integrity because he didn’t pick a “pro-life nominee” like “Scalia/Thomas” (though the “Scalia’s my favorite” comment is as much as a campaign promise as “I’m a uniter not a divider”–that is, not at all). But why are we calling Scalia a pro-life judge? Because he thinks Roe was wrongly decided? I thought that was his pro-constitution, his “strict constructionism” not his personal political views given a jurisprudential sheen. Neither Thomas nor Scalia believe that the 14th amendment guarantees the right to life. So neither of them pro-life judges, unless “pro-life” means you oppose Roe out of anti-abortion principle, but through pro-constitution rhetoric.

    It isn’t surprising or inappropriate to see conservatives concerned about the character and composition of the courts. Heaven knows that in Western history conservatism has fared better with the courts than with parliaments and even monarchs or presidents. But the obsession with the ideological views of judges on broad policy issues, once the exclusive occupation of the left, has now thoroughly infected the right. (I think here my sentiments come close to Nate’s from above–the unhealthy thing is that we fixate on a cultural-social goal in comparison to which the institution becomes merely a means–indeed a means whose legal complexities we don’t want to trouble ourselves about). This should lead us back to a brass tacks question of why we have a supreme court to decide these questions in the first place. I’m hard pressed to think of a conservative (or any good) answer to that question that is consistent with current wishes for “another Scalia/Thomas”. A much better, pro-constitution and pro-life position, would be something like the following:

    http://www.catholiceducation.org/articles/abortion/ab0008.html

  146. Mike Parker on October 4, 2005 at 5:13 pm

    anon #135: While defining “liberal” and “conservative” is a tricky business, I’m fairly certain that Miers isn’t a liberal by any definition, including the classical one.

    I would prefer a classical liberal — strong on individual rights and federalism. But the Bush administration is not a fan of such things, and neither, I suspect, is Harriet Miers.

  147. Cyril on October 4, 2005 at 5:25 pm

    “But getting back on topic, this thread obviously isn’t about getting a run-of-the-mill lawyer job. It’s about getting the most prestigious legal job in America. On that score, I’ll agree that HM shows very few of the expected credentials.”

    Actually, that is far from true. What you are witnessing on this board to a small extent and in the media to a larger extent is the significant tension between lawyers, law professors, and judges. Nate is a law professor wannabe. He is putting in his time at a big firm and waiting for his chance to escape the practice of law and land in the cushion of law teaching. Many other bloggers on this board are in the same circumstance. Judges, especially federal judges, also have an less-demanding lifestyle than a practicing lawyer at a large law firm. I know; I clerked for one. Maybe Nate wants to be a federal judge some day too. He would make a good one.

    Law professors and federal judges, especially in the East Coast, have an incestuous fetish with credentials of a narrow type. Oh, and they usually look down on practicing lawyers. Practitioners, on the other hand, generally despise law professors and judges because they are not real lawyers (or so they say). Don’t believe either side.

    HM has enough experience to be a SC justice. In fact, she may have more experience in the practice of law and management of lawyers than many of her future counterparts. Locke Liddell and Sapp is a 400 person law firm, and she was the managing partner of the firm. Not an easy task, and certainly harder than writing an 8- page law review article on some arcane securities law provision. What she lacks are the East Coast elitist credentials that law professors and federal judges love to love.

    What strikes me as ironic is that republicans are acting like democrats in this case — they assume blue state education and experience some how equals intelligence. Bunk.

  148. lyle on October 4, 2005 at 5:34 pm

    B Bell: SCOTUS is a “d”emocratic institution. It’s called separation of powers and the division of powers in a federal system of government. It’s called the judiciary as a check and balance against the other two branches of government.

    Currently, SCOTUS is a kickball to see which party can stack it. That doesn’t create a very good check and balance on the system. Hence, US politics is out of whack.

    When SCOTUS can become a “credible” institution again, then the Founders can stop rolling around in their graves. Until then, we have a very unstable political environment. Real government disappeared in only 1 generation among the Nephites. How long will it take us?

  149. Bill on October 4, 2005 at 5:35 pm

    Nate,

    Thank you for comment 127

  150. anon on October 4, 2005 at 6:01 pm

    Cyril,

    You seem to be saying that elitism leads us to prefer a narrow group of people whom the legal community has declared to have the relevant background and experience, and you would be right. Sometimes elitism is a good thing. That’s a hard fact that we don’t like to publically admit. But I notice that when we are making decisions that are going to affect them personally, most of us embrace the it (see real estate, medical care, marriage etc.).

    The supposed antipathies between practicioners and academics/judges have been apparently set aside as a near unanimous cry has risen up from the legal community that HM is not qualified for the job. When talking about a lifetime appointment to the most powerful court in the land, we shouldn’t settle for “good enough.”

  151. B Bell on October 4, 2005 at 6:07 pm

    Lyle Democratic Institution implies the voters having a choice on who represents them and unelecting people. The SCOTUS judges are there for life. They can rule however they would like. That is not accountability or democracy.

    A case can be made that the Pres or the senate who appoints and confirms are elected. But the SCOTUS judges only get appointed and confirmed once. There is not another chance to recall them. Its like democracy in many parts of the world. One man, one vote, one time.

    I agree that the Court is overly politicized. That being said we need to play the game and fight on our side or we will lose on the big social issues of the day to liberal judges. Hence my 5-4 comments. One more vote a few years ago against the Boy Scouts and the church would have probably pulled out over the gay scoutmaster issue. (Mike Parker I know you think this would be a good thing but the Bretheren do not agree. At least not right now)

  152. lyle on October 4, 2005 at 6:16 pm

    B Bell: we’ll have to disagree. If you play the game, you only make it worse. Two wrongs (the first one leftist politization; the second conservative politization) don’t make a right. The solution is to destroy the game, so that the Court & the judiciary returns to its role as a co-equal branch and not a super legislature.

  153. Nate Oman on October 4, 2005 at 6:25 pm

    Cyril: I think that concerns about whether HM is qualified go much deeper than the fact that she doesn’t have an ivy league law school on her CV. For example, Rehnquist was a perfectly servicable justice, and he only went to Stanford. Some for O’Connor.

    In all seriousness, my objections to HM’s qualificaitons have nothing to do with where she went to law school. It has everything to do with the fact that running a big firm in Dallas doesn’t tell us much about whether or not you are going to be a good judge. Judicial experience does. Experience in certain government jobs does — SGs office, OLC, etc. Evidence of personal brilliance does. Hence, if HM spent a couple of years on the 5th circuit and built up a record of good judging, then we would know that she was qualified. If Bush nominated Richard Epstien, we would know on the basis of sheer intellectual fire power that he was qualified. Having been a leader of the Dallas bar association, however, just doesn’t cut it as a signal of judicial quality. No doubt someone of HM’s background could become a fine judge, but the Supreme Court does not seem like a good place for training.

    I also think that you are wrong to assume that federal judges have disdain for the profession. This certainly was not the case for the federal judges that I knew on the 8th Circuit. Nor do I think that law professors necessarily disdain practicing lawyers. Certainly it is a mistake for them to do so. I have met and or worked with attorneys who are everybit as intelligent and subtle as my law professors and in many cases more so.

    It is true, of course, that practicing lawyers tend to hate law professors, but I think that this has more to do with lingering memories of law school than anything else. Unfortunately, the line between legal education and professional hazing ritual is blurred at many law schools.

  154. gst on October 4, 2005 at 6:39 pm

    Professor Epstein would be a terrifically fun nominee, as others have noted, not least because of the questioning over his view that a cash market is a just and efficient way of placing babies with adoptive parents.

    For the record, I’m against selling babies. Though I would like to have mine appraised just to know what I’m sitting on.

  155. Seth Rogers on October 4, 2005 at 6:55 pm

    RE gst: I’m hoping mine appreciate in value …

    Cyril, have you been reading The American Thinker? Here’s a link for the rest of you:

    http://www.americanthinker.com/articles.php?article_id=4876

  156. Mike Parker on October 4, 2005 at 6:56 pm

    B Bel #151: One more vote a few years ago against the Boy Scouts and the church would have probably pulled out over the gay scoutmaster issue. (Mike Parker I know you think this would be a good thing but the Bretheren do not agree. At least not right now)

    I am thoroughly impressed with B Bel’s ability to remember my stand on a particular issue that I think I have stated on T&S perhaps twice, and not at all recently.

  157. Jeremy on October 4, 2005 at 7:48 pm

    For the record, I’m against selling babies. Though I would like to have mine appraised just to know what I’m sitting on.

    This comment wins the “most entertaining to read out of context while skimming” award!

    Come to think of it, though, I wouldn’t mind making a little money on the side as a baby appraiser. If this Epstein guy is ever nominated, I’m hanging out my shingle and investing in some baby calipers.

  158. Adam Greenwood on October 4, 2005 at 7:54 pm

    “There is nothing to indicate that they will be well thought out or written.”

    Too right. This is not to say that HM is dumb, or not a good lawyer. Writing judicial opinions that are influential because of their quality is very, very hard.

  159. Adam Greenwood on October 4, 2005 at 7:54 pm

    Jeremiah J.,

    I am unable to follow the thread of your argument.

  160. Stephen M (ethesis) on October 4, 2005 at 8:02 pm

    It is true, of course, that practicing lawyers tend to hate law professors, but I think that this has more to do with lingering memories of law school than anything else. Unfortunately, the line between legal education and professional hazing ritual is blurred at many law schools.

    Well, the basic qualification to be a law professor is the same as that to be a second year associate. From there, most law professors are self taught. Practicing lawyers tend, from time to time, to litigate with law professors and find them extremely wanting.

    Though, I’ve enjoyed following the threads that indicate that without PhD training, law types are not competent to do cross-discipline work.

    I’m also impressed that of all the people on the short list, only one had common courtesy and returned calls. That says a great deal, even if it is an interesting reason to give for not opposing a nomination.

    Is anyone really qualified to serve on the SCOTUS who does not return calls or possess basic courtesy?

    Well, my internet connection is limited for the next week or so, but I did want to check in.

  161. Cyril on October 4, 2005 at 8:04 pm

    Nate and Lyle,

    I hear your points. I just disagree with them. Law professors and judges are not inherently more qualified to sit on the supreme court than a practicing lawyer. Indeed, they may be less qualified.

    Nate, I think the disdain river flows more heavily from law professors to practitioners than vice versa. The money thing seems to always get people riled up. I’ll never forget my first year property teacher’s ashen face when she found out what biglaw was paying first year associates — roughly what she made after 25 years of a very distinguished legal career in academia.

  162. anon on October 4, 2005 at 8:17 pm

    “Law professors and judges are not inherently more qualified to sit on the supreme court than a practicing lawyer. Indeed, they may be less qualified. ”

    What do you base your conclusions on?

  163. Cyril on October 4, 2005 at 8:25 pm

    Anon, unfortunately I have to go to youth activity and don’t have time to explicate fully, but a seasoned lawyer is as capable of rendering sound and far-reaching judicial opinions as any judge. Lawyers write all day every day; they reason all day every day; and they consider the smallest detail of every side of the argument all day every day.

  164. Stephen M (ethesis) on October 4, 2005 at 8:48 pm

    Most seasoned lawyers have learned not to engage in dishonesty, something many judges have never learned to avoid. In addition, it is rare that judges come to their conclusions by themselves.

    Though, that does remind me of my first real hearing in Texas. I had outbriefed and outargued the other attorney. Then, the judge ruled against us.

    I’m walking down the stairs with a very angry and confused client. It was obvious to him that we had won. I explained that, yes, we had, but that the judge understood some things I (and the other attorney) did not and had ruled correctly, and that I had learned something.

    Then, as we reached the landing, I noticed someone walking behind us. It was the judge. I was never so grateful to having been taught to be honest with clients as I was right then. I and Judge Nelson got along very well after that, until his death. I still miss him.

    I’m no Atticus Falcon (author of Planet Law School and a leftist and cynic vis a vis law professors beyond anyone I know), and I found law school fun and still admire many of my profs.

    But, I’m not blinded either.

    Who will speak for the trees? That’s not the issue. Who has standing when capture is alleged, that was the issue never addressed.

    Coase theory means that people can negotiate issues without the government? Bless your heart, people use the government as a representative in negotiating — that is the entity that arises to negotiate, not the entity getting in the way of such an entity arising.

    Etc.

    But it is amazing, and not very much addressed, that only one person, someone who had managed 400 lawyers, was able to return phone calls promptly. That is significant.

  165. Stephen M (ethesis) on October 4, 2005 at 8:53 pm

    quoting:

    Eugene Volokh, October 4, 2005 at 6:27pm] 0 Trackbacks / Possibly More Trackbacks
    So What Is Really Important in a Justice, and How Do We Measure a Nominee Against Those Requirements?

    Here’s a fairly obvious starter list that we’d like to see in a nominee (let’s set aside the attribute many of us especially want, which is a willingness to decide cases the way we think they should be decided, since it’s hard to come up with a real consensus about how that is to be implemented):

    1.

    Intelligence.
    2.

    Ethics.
    3.

    Thoughtfulness.
    4.

    Willingness to consider the possibility that one is wrong.
    5.

    Ability to work effectively on a multi-member Court.
    6.

    Ability to set aside one’s personal annoyance with or hostility to particular colleagues, lawyers, or litigants, even when the annoyance or hostility is justified.
    7.

    Understanding of the world and of the likely practical effects of various legal rules.
    8.

    Clarity and precision of thinking, and ability to write clearly and effectively (or to edit subordinates’ work well).
    9.

    Creativity in thinking up (within the permissible legal boundaries) solutions that accomplish the goals that one is (properly) trying to accomplish, for instance in crafting a common-law rule, or an interpretation of a statute that’s consistent with the text yet likely to accomplish the statutory goals.
    10.

    Willingness to subordinate one’s views to the legal commands. (I recognize that there may well be disagreement about the terms of those legal commands — for instance, how important text or original meaning may be — but I think most observers would agree that once a judge concludes that some legal rule is binding, the he should comply with it even if he doesn’t like the result.)
    11.

    Willingness to work hard.
    12.

    Ability to work efficiently.
    13.

    Good judgment in what to delegate to subordinates.

    I’m sure there are other items, both obvious and nonobvious, that I missed.

    But my point here isn’t really to look for an exhaustive list, or to rank the items. Rather, it’s to ask a few related questions: If we come up with a fairly well-understood list, how do we judge nominees — and of course right now we’re talking about Harriet Miers — against it? If the President’s explanation for selecting someone he knows very well is that he has a much better sense of how she fares in these categories than he would about a stranger (even an illustrious stranger), should we be impressed by this explanation or dismiss it? Are some of these attributes more important than they at first appear to many, and others less important?
    16 Comments

  166. GeorgeD on October 4, 2005 at 10:03 pm

    So I’ve decided one thing I don’t like about her. She is a compromiser. Its can’t we all play together nicely. That’s politics not jurisprudence. This tyle is characteristic of “principled” women. It is the way Sandra Day O’Conner adjudicates. (But not Ruth Bader Ginsburg who is just a man in drag or something else freakish).

    Is there an American Margaret Thatcher age 50-55 that is qualified for SCOTUS? She is my kind of diversity.

  167. Adam Greenwood on October 4, 2005 at 10:38 pm

    George Will has the last, best word.

    http://www.confirmthem.com/?p=1455

  168. Aaron Brown on October 4, 2005 at 11:38 pm

    What George Will said.

    Aaron B

  169. Aaron Brown on October 4, 2005 at 11:39 pm

    What George Will said.

    Aaron B

  170. Paul on October 5, 2005 at 12:52 am

    This is about Roe and Roe alone. Bush made a promise to God that he would do two things if elected president: (1) kill Sadam and (2) put in place a court that would overturn Roe. Maybe neither will ultimately come to pass, though Sadam’s days are numbered and his sons are dead, but Bush has done what he believes is necessary to carry out those two promises. The rest doesn’t matter to him. Don’t we get that yet?

  171. Stephen M (ethesis) on October 5, 2005 at 1:07 am

    Aaron, you are stating:

    Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be.

    Which, of course, is true.

    And

    The president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech.

    Which means that no one who voted for it, either as a legislator or a judge, can be trusted to fulfill their duties?!

    BTW, I was at the state bar convention and my wife was an officer in the legal auxillary when she sent her representative. It is by no means certain that she intended the person she sent to be taken as the traditional partner/spouse who usually attended that meeting and I wouldn’t feel comfortable with that conclusion unless the candidate stated that was her intent.

  172. Aaron Brown on October 5, 2005 at 1:39 am

    “Which means that no one who voted for it, either as a legislator or a judge, can be trusted to fulfill their duties?!”

    Um, no, actually. Read Wills’ comments more carefully. He says that (a) Bush is on record as agreeing with the notion that McCain-Feingold is unconstitutional; and (b) Bush is on record agreeing that it would be his presidential duty to veto unconstitutional legislation. It’s a simple argument that doesn’t turn on whether you agree that McCain-Feingold’s “core purpose” is unconstitutional. The point is simply that Bush didn’t fulfill his presidential duty to the Constitution, as he himself defined it, so we have no reason to trust him on constitutional matters now. This argument, whatever you make of it, has no necessary implications for anyone else who voted for it, since it is Bush’s betrayal of his own professed beliefs that is at issue.

    I’ve got no idea what your last two sentences are about. Sprecken zie Americano, por favor?

    Aaron B

  173. anon on October 5, 2005 at 10:11 am

    “But not Ruth Bader Ginsburg who is just a man in drag or something else freakish”

    GeorgeD,

    For some reason I don’t want to play nice with you after reading your (as usual) uninformed and obnoxious comment. Do you know anything about Ruth Bader Ginsburg? I would bet my house that you couldn’t tell me 5 things about her without using google, yet you feel qualified to talk about her. Lacking any knowledge of her jurisprudence you launch an ad hominem attack against her person which, I assure you, reveals more about you than it does about her. You ought to be ashamed of yourself and asking for the bloggernacle’s collective forgiveness for being such a jerk.

  174. Christopher Hunter on October 5, 2005 at 10:49 am

    A blueprint is not a building. A zygote is not a full term baby. Also check out the old testament. Father’s were not compensated for the loss of a baby until it was a month old after birth, much less much less a month old after conception.

    And a prophet of your mericful God, in one particular battle, ordered Hebrews to delibertately slaughter the innocent fetuses of visibly (that means well into the 2nd trimester) pregnant women of their enemy’s. They were ordered to rip open the bellies of these women. This was supposed to be God’s ordered retribution for their enemy. The only thing in the old testament to support your interpretation is David’s psalm which says God new me in the womb before I was born. That is not God’s word that’s David’s impression of how much God loved him. That’s a love song to a merciful God, who then orders the slaughter of innocent fetuses of the enemy.

  175. Christopher Hunter on October 5, 2005 at 10:55 am

    Subject to your comment policie, which likely means not included unless they agree with you or don’t question your bigotry. NO ONE is forcing women who don’t beleive in abortion to have one. MIND YOUR OWN BUSINESS. The partial birth abortion procedure was invented to save the life of the mother. Hydrocephalic fetuses with nothing but water in their skulls had the water, NOT their brains – their were not brains, extracted so the woman didn’t have to have a long incision and could bear more children. I’m sure you omitt this medical fact. Cardinal OConnor even said theis poor creatures were not ensouled and it was ok to perform the procedure. He said no brain – no soul. Stop trying to judge others when you don’t know the truth. God allows millions of miscarriages- natural abortions each year. YOu also elect people who ban funding for birth control – so you are HYPCRITS. You ban the rx’s that would prevent the need for abortion. You promote ingnorance and impose your idea that sex should only happen to make babies. That is YOUR interpretation. This is America. Go back to Europe if you want state religion!

  176. anon on October 5, 2005 at 10:59 am

    “This is America.”

    Always a harbinger of an intelligent argument.

    I would love to see Christopher Hunter and GeorgeD in the octogon!

  177. Christopher Hunter on October 5, 2005 at 11:00 am

    Ironically if Roe is overturned it will create a backlash from women of all ages. The boomers had more baby girls than boys. Women live longer. In 5,10, 15 years women will be the overwhelming majority of VOTING AGE Americans. 70% of us want abortion legal and safe. Go ahead an over turn it. The Republicans will get thrown out of office in due time. And even if abortion is illegal women will find a way. Some will die, to your great pleasure, but you are deluding yourself if by driving it underground you will SAVE and lives.

  178. Christopher Hunter on October 5, 2005 at 11:12 am

    Men just can’t handle women making life and death decisions. Men put semen in a woman and HOW DARE SHE remove what he put there. You think woman are irrational cuz of hormones, but women’s hormones fluctuate for a day or two each month. Men on the other hand turn into sex obsessed maniacs when their hormones increase as teens. Their hormones stay at those driven levels for decades. Men are on an irrational hormonal high constantly. And we think we are the only objective ones. Testosterone drives men to fight, kill, and steal for status so they can be the alpha male and get the alpha female whom they judge on totally superficial standards of appearance. Pretty women aren’t always fertile or healthy of good mothers. Maybe millions of years ago there was a health factor, but now it’s taken on a life of it’s own. Men want gas guzzling cars, they say to impress women, but it’s really to impress other men. We have to have oil so they can get off on the power rush of driving fast cars.

    Also Ronald Reagan believed in abortion in 1949 TO FURTHER IS ACTING CAREER when he sent told the actress Jacqueline Parks to get rid of the pregnancy he caused. He then got Nancy Reagan pregnant before he married her. He then believed abortion was wrong TO FURTHER HIS POLITICAL career. The Bush’s changed their position on Abortion overnight when Reagan got the nomination in 1980 on THAT single issue. I used to be Republican but I left the party. It’s run by filthy rich corporation whores and religious fundamentalists who want to impose their interpretation of the Bible on all other Christians, just as Osama Bin Ladin wants to impose his interpretation of the Koran on all other Muslins.

  179. Stephen M (ethesis) on October 5, 2005 at 11:19 am

    Chris …

    Take a chill pill.

    Have you known the parent of a Hydrocephalic fetus? I have, the child was born and lived years. Met the mother in Compassionate Friends.

  180. gst on October 5, 2005 at 11:29 am

    Christopher Hunter makes some subtle and cogent points. Also, he deftly employs that most sophisticated of rhetorical devices, the all-capitals phrase.

  181. Adam Greenwood on October 5, 2005 at 11:42 am

    Curse you, GST. I had planned to delete Christopher Hunter, but your description of his argument is just too good. I guess rhetoric, like tomatoes, grows best out of manure.

  182. GeorgeD on October 5, 2005 at 11:44 am

    I’ve got no logic against Christopher Hunter. I just have a testimony of The Plan of Salvation. I pity Christoper when he tells God that he decided to play god and end someone’s life because he didn’t think it was a quality life. Then God will show him what he did and it’s consequences and he will experience an eternity of misery just contemplating it. It’s interesting. I don’t think God shoots us with bolts of lightening. I think he just let’s us see what might have been if we had not sinned and then we get to contemplate the enormity of our sin. We start wishing for hellfire and lightening and landslides and earthquales.

    Thank God for the atonement that allows us to be spared this horror of responsibility.

  183. Concierge on October 5, 2005 at 12:00 pm

    What bothers me is the Bush quote from the Rose Garden that Miers, JD has the same constructionist views of President Bush, and that through their decade long friendship, he has learned she is unwaivering on her stance. He then went on to say that he wants someone in the seat that will have the EXACT SAME views twenty years from now, that she has today.

    Huh? Yikes! What a bold statement to offer up a view that there is not room for revelation. Let’s cut to the crap. How could we not know her personal stance – especially if Bush tells us it is the SAME as his? Said done, move on. I’m more interested in finding out her take on fiscal responsibility; national, state, and foreign political policy; social mores; and the role of big government vs. supporting families through money dealt to the state/community level for education, micro/small business loans and health care. Those items seem to be a bit wishy-washy for Bush – and thus if we take President Bush’s statement as truth (that they share the same views), she must not be solid in those areas either.

  184. anon on October 5, 2005 at 12:15 pm

    GeorgeD,

    You didn’t have any logic when it came to discussing Justice Ginsburg either. Instead you insulted her looks. It seems patently obvious to me that how a person looks has nothing to do with their qualities as a justice, yet that seemed to be the sole basis of your objection Justice Ginsburg. Does your particular testimony of The Plan of Salvation justify awarding positions of prestige and power based on physical appearance. I call on you again to either defend your remarks or apologize for them. (Once you’ve done so, we can move on to your more general remarks about “principled women”.)

  185. GeorgeD on October 5, 2005 at 12:16 pm

    [EDITED INTO OBLIVION]

  186. Frank McIntyre on October 5, 2005 at 12:20 pm

    George and anon,

    please be more civil.

  187. Seth Rogers on October 5, 2005 at 12:37 pm

    I was wondering how long it would take this thread to become an ideological shouting match.

    By the way gst, I too can claim the distinct honor of having had the class to have used all-caps words in my own posts. Alas, I haven’t advanced to the point where I feel worthy of writing entire sentences in this most esteemed literary form.

  188. anon on October 5, 2005 at 12:53 pm

    Frank, when pleading for more civility, T&S should send in Jim Faulconer. Civility is not about being right or wrong, but rather about the manner in which you make your point. Considering your track record, your request doesn’t carry much moral authority.

    Hiowever, my backhand comment about GeorgeD and Christopher Hunter in the octogon was over the line and I promise to refrain from sharing my ultimate fighting fantasies with the bloggernacle going forward.

  189. GeorgeD on October 5, 2005 at 12:59 pm

    anon Very clever. I can see that the only argument you know is the back of your hand. My last comment which alluded to RBG’s private proclivities is probably dead on but….it can’t be discussed because its provate.

    I know that she is pro-abortion, pro-gay anything, pro-kelo and pro-everything I can’t stand. Perhaps you didn’t know any of that anon. Well google-it.

  190. Concierge on October 5, 2005 at 1:05 pm

    Christoper understands much that other LDS need to begin to learn and realize. Re:

    Have you known the parent of a Hydrocephalic fetus? I have, the child was born and lived years. Met the mother in Compassionate Friends.

    First question:
    What would happen to this child upon birth under OT/biblical law?

    Second question:
    Knowing that, do we now want to forward groups that are moving in ways to bring back biblical law through the creation of a fully Christian state (e.g. America)?

    For LDS this law was replaced by the Gospel. We don’t need to support those that want to retreat. It’s backfired so many times through history. Awareness now will help us realize how we can quell oppression. The dire and granted alarmist view is that we could also avoide the genocide of all those partaking in iniquity (homosexuals, women that have aborted, and eye for an eye law). Who else are the iniquitous? LDS are. In their eyes, we are not Christian (that whole cult thing again).

    Sure, we live in a nation where we can talk freely and still own property, but if we talk against the theocratic political platform in some funding circles, the federal support gets cut off (latest cases to follow: NYU for not allowing military recruiting, NIH, and the purging of leaders in other federal institutions should they go against an issue of morality).

    Many LDS get mixed up and think that other members that bash current politics are bashing morality. Quite the opposite – many of us have very strong opinions on personal morality. We condemn abortion, homosexuality and so on – but we realize that in supporting those that CAN forward the micro-laws governing choice, we are also forwarding the agenda of a group that will in the end (unless their views change) – purge us.

  191. Jonathan Green on October 5, 2005 at 1:08 pm

    …but if we could finally get, say, Matt and Kaimi into the octagon, we might finally make some progress on the issues that until now have simply refused to die. Matt’s a better pugilist, but Kaimi’s jiu-jitsu grappling is awe-inspiring. I think Kaimi might get a submission or KO in round 1, but if it goes all three rounds, it’s Matt’s all the way. The man simply doesn’t quit once he gets going.

  192. anon on October 5, 2005 at 2:01 pm

    GeorgeD,

    You are a credit to your cause. Discretion being the better part of valour, I will retire from the field. BTW, I took your advice and googled Justice Ginsburg and found the following (taken from http://www.oyez.org):

    “A secret hidden to all her classmates at the time was the fact that Celia Bader suffered from cancer during Ruth’s high school years. Celia Bader passed away a day before her daughter’s graduation ceremony. Ruth did not attend a “Forum of Honor” to which she was invited for graduating sixth in her class. Celia Bader left Ruth a relatively large sum of eight thousand dollars for her college tuition. Ginsburg, however, earned enough scholarships by that time to support herself. She gave most of the money to her father.

    Ginsburg attended Cornell University after graduating from high school. There, she began dating Martin Ginsburg, who would become her husband. Their undergraduate years were uneventful. Martin enrolled at Harvard Law School upon his graduation while Ruth completed her senior year at Cornell. Halfway through the year, Martin received his draft notice. Ruth graduated first in her class from Cornell and the young couple married before moving to Fort Sill, in Lawton, Oklahoma, where Martin was stationed to serve in the Army. After Martin’s discharge from the Army two years later, the couple returned to Harvard, where Ruth Ginsburg also enrolled in law school.

    Ruth Ginsburg attended Harvard at a difficult time. In the era of harsh grillings by professors using the Socratic method, Ruth Ginsburg and her fellow women students found the school extremely hostile. At one point, Dean Erwin Griswold asked the women of the class what it felt like to occupy places that could have gone to deserving men. Still, Ginsburg overcame the derision and excelled academically. She received high grades and earned a position with the law review. Crisis struck when Martin developed testicular cancer and required extensive treatment with radiation and surgery. Ginsburg attended to her preschool daughter and her ill husband while maintaining her studies. She attended class for her husband and typed his papers as he dictated every word. After a difficult struggle, Martin recovered. He graduated from law school and accepted a position in a New York law firm. Ruth Ginsburg transferred from Harvard to Columbia Law School to continue her study. She made law review, becoming the first woman to achieve the honored position at two major schools. After a year at Columbia, Ginsburg graduated at the top of her class.”

  193. B Bell on October 5, 2005 at 2:22 pm

    Anon,

    So what? I have relatives that died and I worked my way thru college. Ginsburg is a ACLU attorney. Enough said

    ACLU and the LDS church have been butting heads for decades. It will continue

  194. Chris Grant on October 5, 2005 at 2:23 pm

    Nate Oman wrote:

    “the very, very top students at places like Harvard, Chicago, and Yale are scary, freaky, wicked smart”

    I would love to read some books written by scary, freaky, wicked smart people for a change. Have these elite law students written any that you’d recommend?

  195. Adam Greenwood on October 5, 2005 at 2:50 pm

    Concierge,

    I’ll admit that the connection between Harriet Miers serving coffee at her church and the slaughter of hydrocephalic children is obscure to me, but then I’m not you nor Christopher Hunter. Some kinds of insights are denied to us mere mortals.

  196. B Bell on October 5, 2005 at 3:07 pm

    I just got off the phone with a customer of mine here in Dallas. He worked for 10 years with HM at her law firm and is very conservative (hint: he represented Paula Jones and was at the deposing of Clinton) he also is friends with her family here in Dallas

    He says she is a very evangelical Christian and will seek to interpet the law and not make law. He used the words Strict Constructionist in our conversation.

    Just more info. Its still a weak pick but I am a little more confident in her.

  197. anon on October 5, 2005 at 3:28 pm

    Strict Construtionist:
    Pronunciation: ‘strikt k&n-’str&k-sh&nist
    Function: noun
    1: one who construes a legal document (as the U.S. Constitution) so as to agree with an Evangelical Christian interpretation
    2: one who builds a building devoid of all sense of humor

  198. anon on October 5, 2005 at 3:38 pm

    Chris Grant,

    I’ve been told that a great historical introduction to the role of the Supreme Court is Robert McCloskey, The American Supreme Court, as updated since McCloskey’s death by Sanford Levinson. Richard Fallon’s The Dynamic Constitution (with Cambridge University Press) provides an excellent survey of contemporary constitutional law on a doctrinal basis. Akhil Amar has just come out with The Constitution: A Biography.

  199. Adam Greenwood on October 5, 2005 at 3:56 pm

    http://www.volokh.com is a must stop for folks interested in the Harriet Miers nomination. Recent entries include a rebuttal to George Will and a critical look at Harriet Miers’ published writings.

  200. Nate Oman on October 5, 2005 at 3:56 pm

    Chris Grant: In referring to freaky smart people, I had in mind one class mate in particular of mine who could speak and read four or five languages, was getting a Ph.D. in economics in addition to his JD, and is currently clerking for the Supreme Court. He is no doubt not as smart as a math professor, for example,(who is?) but he was no slouch.

    If you want to read books by smart graduates of elite law schools, you will have to narrow it by subject matter as their are legions of such volumes. Anon gave some nice books on con law. You might also want to look at “Saying What the Law Is” by Charles Fried, which was recently published.

  201. Adam Greenwood on October 5, 2005 at 4:23 pm
  202. Seth Rogers on October 5, 2005 at 8:03 pm

    B Bell, it may one day be that the ACLU is the only one willing to stand up for you.

    Look, I don’t like the ACLU either. I think they’ve gotten to the point where they are taking cases solely for their political punch value (rather than genuine social need). But I appreciate the fact that someone is willing to speak for those whose mainstream unpopularity gives them little voice in our society.

    Writing off the ACLU categorically seems foolish to me. Especially since Mormons may need their services one day. We may end up in front of the Supreme Court one day and find enemies in Scalia and Thomas, but friends in Ginsburg.

    Or maybe not. But my point is that before dismissing people as “freaks,” you ought to stop and consider what “freaks” we ourselves are.

  203. gst on October 5, 2005 at 9:05 pm

    I had the ACLU join a brief I drafted for a religious freedom case. Chuck Colson’s outfit was on the same brief.

  204. lyle on October 5, 2005 at 9:52 pm

    Mormons, and the ACLU, brought the cases that ended school prayer.

    However GST, the ACLU has a long record of ignoring persecution against Christians but being rabidly against persecution of any odd weird minority religions. Yes, as the brief you worked on shows, they occasionally will help all sides. That is the minority of times though.

    Seth: for those that think religious liberty in the first amendment was seriously curtailed by the Smith decision; yes, it was Scalia who authored that abomination. He proved no friend of religion in that case.

  205. gst on October 5, 2005 at 10:03 pm

    Lyle, I don’t pay dues to them or anything, I was just sayin’.

  206. Stephen M (ethesis) on October 5, 2005 at 11:03 pm

    Concierge I’m not sure of the point you were after. My guess is that since the child lived for years, at some point in the Old Testament he would have had significant legal rights.

  207. Adam Greenwood on October 5, 2005 at 11:08 pm

    If anyone wants to keep speculating about the sexual proclivities of Supreme Court Justices, they can go to the place Brigham Young said you’d go if you didn’t go to Provo. I am ruling these sorts of speculations out-of-bounds.

  208. Ryan Bell on October 6, 2005 at 12:50 am

    Adam, you’re telling me that speculations on the sexual proclivities of sitting supreme court justices are not germane to a discussion about Harriet Miers’ nomination? What kind of blog is this?

  209. Guy W. Murray on October 6, 2005 at 1:13 am

    Mr. Greenwood . . . a wise injunction in #207, well before the subject gets around to Justice Thomas ;-) We’d hate to role out that old tape of Orrin Hatch reading from some unmentionable book.

  210. lyle on October 6, 2005 at 3:15 am

    GST: And I was just agreeing with you, case in point; while pointing out the broader context that could be missed by your anecdotal experience.

    So, here is supposedly a quote from WH operatives, aka Ken Mehlman head of the RNC:

    “While much of the consternation was voiced by social conservatives, the White House has trumpeted the support of such prominent figures as James C. Dobson, head of Focus on the Family, and the National Right to Life Committee. And in the end, White House advisers emphasized, only the Senate gets a vote.”

    http://www.washingtonpost.com/wp-dyn/content/article/2005/10/05/AR2005100502200_pf.html

    To which I say:

    Who does Bush think he is? We elected him to represent us, not trample on us. If that is the White House position, regardless of the merits of the HM nomination, Bush just made himself a lame duck. They had better do alot of apologizing very fast.

  211. annegb on October 6, 2005 at 3:17 am

    Okay, I’m lost in the legalise here. I’m not too concerned with either of these people, que sera, que sera.

    But, there is something that bothers me about that woman. That black eyeliner on the bottom of her eye. That, along with the born again Christian thing, makes me wonder about her.

    Robert’s toupee isn’t as bad as her black eyeliner. That doesn’t say “radical.” The eyeliner, that says “radical.”

    Radical what I’m not sure, we will find out, I guess.

    I’m in that group that figures God’s will is going to be done, no matter the rhetoric.

  212. GeorgeD on October 6, 2005 at 8:13 am

    Yes, The very ACLU that is trying to take away the Church’s property in downtown SLC may be our friend? Go figure.

  213. Matt Evans on October 6, 2005 at 8:37 am

    I’m just joining the conversation, but I think the worries about Miers’ intellectual heft are overstated. I agree that we don’t have reason to assume she’s brilliant, but if she is truly a “reliable vote” the best comparison would be to Thurgood Marshall, an accomplished lawyer out-of-his-league on the court, but always willing to follow Brennan’s lead. (Bob Woodward’s book The Brethren is especially critical of Marshall’s competence, almost presenting him as a dolt. Woodward says the other justices could immediately discern whether a memo from Marshall’s chamber was written by Marshall or by one of his clerks by its quality.)

    Marshall didn’t conceive any new doctrines but was an exceptionally “reliable vote.” He adopted Brennan’s rationales, and his opinions articulated Brennan’s thinking. If Miers becomes for Scalia what Marshall was for Brennan, conservatives should be delighted. The reason O’Connor’s opinions are maddening is due to her nebulous split-the-difference jurisprudence that tried to reconcile opinions like Brennan’s and Scalia’s, without the necessary mental firepower.

  214. Adam Greenwood on October 6, 2005 at 9:08 am

    Well, Matt Evans, if that’s not the most rousing defense I’ve heard, I don’t know what is.

  215. Adam Greenwood on October 6, 2005 at 9:14 am

    Conservative discontent boils over in a meeting with the President’s representatives:
    http://www.washingtonpost.com/wp-dyn/content/article/2005/10/05/AR2005100502200_pf.html

  216. Chris Grant on October 6, 2005 at 9:15 am

    I don’t just want books by smart Ivy League grads; I want books by those who are freakishly smart. As an outsider, I thought that Richard Posner would qualify, but the one book of his that I’ve read was somewhat underwhelming. Maybe I confused prolificacy with freakish smartness.

  217. Geoff B on October 6, 2005 at 9:29 am

    Matt, your comparison is an interesting one. Does anybody believe that Miers’ opinions will be as poorly written and argued as Marshall’s? Highly doubtful. I read the Brethren when it first came out and remember the comments on the poor quality of Marshall’s opinions.

  218. lyle on October 6, 2005 at 9:36 am

    Geoff B: Actually, very probably. Try reading some of her published works in the Texas Bar journal. Both the grammar and diction are horrible. You would think that such an efficient trailblazer and manager would have had the insight to give the editing and proofreading job to her firm’s summer clerks or associates.

  219. Adam Greenwood on October 6, 2005 at 9:39 am

    Noonan is on top of her game:

    “the beginning of the end of command-and-control liberalism on the U.S. Supreme Court”

    “The Supreme Court isn’t the kind of fight you “don’t have to pick.” History picks it for you. You fight.”

    “What would she be like on the bench? I know the answer. So do you. It’s: Nobody knows.”

    “I find myself lately not passionately supporting or opposing any particular nominee. But I’d give a great deal to see Supreme Court justices term-limited.”

    http://www.opinionjournal.com/columnists/pnoonan/?id=110007363

  220. Matt Evans on October 6, 2005 at 9:49 am

    Geoff, I don’t know that Marshall’s opinions are poorly written and argued, as there was a heavy buffer between him and his majority opinions. Marshall apparently depended more heavily on his clerks than do other justices, but because majority opinions are circulated among the chambers, Brennan and the other justices could, and did, shape the opinions’ argument and doctrinal stance.

    The difference with O’Connor is that she was the determinative vote. No one could shape her opinions because she wasn’t writing for them, she was writing only for herself. If they wanted an opinion that made sense, they’d lose their majority because O’Connor was voting based on her ridiculous views, like the 14th Amendment allowing racial discrimination by government until, and only until, approximately 2028. Those who joined her dreadful Grutter opinion had no choice. (Her opinion would be the considered the *official* one even if the opinions were written 4-1-4).

    Marshall, on the other hand, was perfectly willing to incorporate the views of the liberal justices. Hopefully Miers will do the same for the conservatives.

  221. Adam Greenwood on October 6, 2005 at 9:50 am

    O’Connor’s pre-nomination pro-life credentials.

    http://bench.nationalreview.com/archives/078749.asp

  222. Mark B. on October 6, 2005 at 9:53 am

    Actually, Lyle, it was a bunch of New Yorkers (probably Jewish, guessing from their name) that brought the suits that “ended” school prayers. But that was over 40 years ago. The case was Engel v. Vitale.

    You’re thinking of the Santa Fe Independent School District v. Doe case, where the issue was prayers given by students before football games. There were two plaintiffs in the case, a Mormon and a Catholic.

    I suspect that the Santa Fe decision will have about as much immediate effect as the Engel v. Vitale case. It’s sort of as Andrew Jackson said after the Court made a decision in a case involving Indians (Seminoles, I think): Justice Marshall has made his decision. Now let him enforce it.

  223. Seth Rogers on October 6, 2005 at 9:56 am

    GeorgeD,

    I’m all too aware of the Main Street Plaza issue between the Church and the ACLU. I spent the better part of 8 months getting a casenote published on the subject.

  224. Guy W. Murray on October 6, 2005 at 10:21 am

    Seth:

    Can you give a link to where your casenote is published, or perhaps send me an electronic version? NipomoLaw at aol.com

    Thanks in advance

  225. Adam Greenwood on October 6, 2005 at 10:25 am
  226. Adam Greenwood on October 6, 2005 at 10:30 am

    Lyle,
    Good suggestion to check out her published stuff. They’ve been critiquing it over at the Volokh Conspiracy. One caveat there is that a lot of the obvious errors might have been Lexis and Westlaw typist mistakes, i.e., not in the original article she wrote. Still, quite a bit of chaff remains, like her listing our important freedoms, including “freedom of liberties.”

    Obviously my own work wouldn’t stand up to the kind of scrutiny hers is getting. Recognizing that, if the President inexplicably wanted to appoint me to the Court I hope I’d have enough virtue to tell him to take a hike.

  227. Adam Greenwood on October 6, 2005 at 10:34 am
  228. Russell Arben Fox on October 6, 2005 at 11:14 am

    Noonan: “I find myself lately not passionately supporting or opposing any particular nominee. But I’d give a great deal to see Supreme Court justices term-limited.”

    Noonan, at least this one time, is completely correct. This is a change that should have been instituted long ago. For more arguments in favor of this idea, see here and here and here and here. There are a lot of ways in which our politics could be improved if we could just peel ourselves away from the immediate and actually think about the structure of our constitutional system; this is one of the most important.

  229. B Bell on October 6, 2005 at 11:18 am

    I support term limiting judges as a long term solution to the way that the judicial battles have distorted US politics in a negative way.

    Or we could have 4-6 year terms and then have the judges have to get re-confirmed. Now that would be really interesting but also problematic.

  230. Seth Rogers on October 6, 2005 at 11:24 am

    Guy Murray,

    Sure, I’ll send you an attachment (though the document is in Word format). The formal citation is: 4 Wyo. L. Rev. 753 (2004) and it can be found at your local law library (shameless self-promotion).

    It’s written in typical law review style: technical, tedious, and long-winded. But if you can stomache that, be my guest.

  231. lyle on October 6, 2005 at 11:38 am

    Adam: Good point re: potential errors. However, this doesn’t excuse bad diction and her uninspired, unimaginative and uninteresting legal writing. Also, Lexis/Westlaw largely moved to scanning; so typist errors ceased some time ago. Given these scans are latter edited, its more likely to be a good match.

  232. Guy W. Murray on October 6, 2005 at 11:55 am

    Seth Rogers:

    Thank for the case note. The local law library is too far to travel, and I don’t know if they have the Wyoming Law Review, so I appreciate your sending the article. Long ago and far away I was once a research editor for a law review . . but I appreciate the heads up!

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

    Term limits would be bracing.

    I’m envisioning the Amendment:

    The Chief Justice and the Justices of the Supreme Court shall serve a twelve-year term.

    [Most people have suggested an 18-year term, on the theory that this allows each President to make two appointments per term. But I see no real advantage to making sure that each presidential term gets an equal number of appointments.
    With more hale and hearty former Justices around, I wonder if it would be a good idea to expressly state that they automatically become an Appeals Court Judge when their term expires?]

    The Chief Justice and the Justices of the Supreme Court may serve more than one term.

    If a vacancy occurs within three months before the end of a President’s final term, or a nomination within six months, he may, if his first nominee is rejected, nominate a second, and if that nominee is rejected, nominate a third, even after his term expires, but in no case shall
    . . . . . . . . . . . . . . the first nomination be made after the President’s term expires nor
    . . . . . . . . . . . . . . each subsequent nomination be made more than two weeks after the rejection
    . . . . . . . . . . . . . . of the prior nomination.

    [With more frequent replacements, tactical delays by the Senate until a new President comes in would become more of a problem. This provision would discourage such tactical delays, though it could not prevent them]

    Each nominee who has not received an up-and-down vote from the Senate within 6 months of nomination shall be deemed confirmed, though at the Senate’s request the President may, in writing, extend the time.

    Recess appointments are forbidden.

    [Alternatively, we could allow recess appointments but deduct the time of their recess service from their 12-years, and perhaps waive the 6-month time limit for voting]

    Congress may pass such legislation as needed to give this Amendment clarity and full effect.

    [The use of months is a peculiarity that would have to be explained, I am afraid, which would be awkward in an Amendment, which means that perhaps one ought to go with the less gainly but clearer days, e.g., 90 days, 180 days, etc. On the other hand, maybe that could be left for Congress to clarify.]

  234. Chris Grant on October 6, 2005 at 12:04 pm

    Adam wrote: “Still, quite a bit of chaff remains, like her listing our important freedoms, including ‘freedom of liberties.’”

    Lyle wrote: “Also, Lexis/Westlaw largely moved to scanning; so typist errors ceased some time ago. Given these scans are latter edited, its more likely to be a good match.”

    Virginia Postrel confirms that “freedom of liberties” is a typo not found on a microfilmed copy of the original print edition. The original phrase is “freedom of religion”.

  235. Geoff B on October 6, 2005 at 12:05 pm

    For depressed conservatives, here’s the great Mark Steyn on the Miers nomination. I basically agree with his take. Registration [is] required for the Spectator.

    http://www.spectator.co.uk/article_pfv.php?id=6725

  236. Adam Greenwood on October 6, 2005 at 12:06 pm

    Thanks, Chris Grant.

  237. Adam Greenwood on October 6, 2005 at 12:11 pm

    Sample quote from Steyn in the Spectator:

    “Bush, it seems ever more obvious, is the Third Wayer Clinton only pretended to be. The Slicker reckoned that, to be electable, a Democrat had to genuflect rhetorically to some kind of sensible soccer-mom-ish centre, and he was right, at least in so far as without him the Dems have been el stinko floppo three elections in a row. But Bush, for good or ill, believes in himself as the real Third Way deal: it’s a remarkable achievement to get damned day in day out as the new Hitler when 90 per cent of the time you’re Tony Blair with a ranch. “

  238. Geoff B on October 6, 2005 at 12:32 pm

    A more representative sample from Mark Steyn’s article:

    “For what it’s worth, my sense is that Harriet Miers will be, case by case, a more reliable vote against leftist judicial activism than her mercurial predecessor, Sandra Day O’Connor. Why do I say this? Well, she’s a strong supporter of the right to bear arms. The great Second Amendment expert Dave Kopel says you have to go back to Louis Brandeis 90 years ago to find a Supreme Court justice whose pre-nomination writings extol gun rights as fulsomely as Miss Miers. According to an old boyfriend, Judge Nathan Hecht of the Texas Supreme Court, she packs heat — a Smith & Wesson .45 — which I can say with certainty the other lady justice, the far-left Ruth Bader Ginsberg, never has. She is also very opposed to abortion, and a generous contributor to pro-life groups.

    In other words, what seems to be emerging is a woman Bush responds to as a fellow cultural conservative and evangelical conservative (she’s a born-again Christian) rather than as a judicial conservative — a label Judge Bork dislikes, preferring quite correctly that we distinguish judges not as conservative or liberal but as either originalists or judicial activists. I find it hard to discuss Harriet Miers seriously in those terms, but on balance she seems likely to vote the right way for whatever reasons. She’s thus another representative of Bush and Karl Rove’s belief in incrementalism — that the Republican majority can be made a permanent feature of the landscape if you build it one small brick at a time. Miss Miers is, at best, such a brick, at a time when conservatives were hoping Bush would drop a huge granite block on the court. But, given that she started out as a Democrat and has been on the receiving end of the partisan attacks on the administration for five years, she seems less likely than any detached effete legal scholar to be prone to the remorseless drift to the Left that happens to Republican Supreme Court nominees. “

  239. lyle on October 6, 2005 at 1:17 pm

    For the parable inclined LDS SCOTUS confirmation reader:

    http://lawandpolitics.blogspot.com/2005_10_01_lawandpolitics_archive.html#112857015690876744

    A parable, lifted from Abraham, about SCOTUS nominations. Starring: Bush as Jehovah and Luttig as the son sacrificed on the altar w/o any conservative angel to stop it.

    Warning: potential offensive; and funny.

  240. Russell Arben Fox on October 6, 2005 at 1:19 pm

    Adam, I like your amendment very much. If it came before the legislature, I know I’d be sending e-mails in support to my representatives daily. (Well, perhaps not daily, but you get the idea.)

  241. Adam Greenwood on October 6, 2005 at 1:36 pm

    With the two of us emailing, this thing’s unstoppable. Behold Amendment XXVIII, Ye Mighty, and Despair!

  242. Chad Too on October 6, 2005 at 1:45 pm

    Don’t plotz, Adam, but I’m in agreement with you on the need for an amendment like this.

    I’m not so crazy about renewable terms though. I’m worried that could further politicize the process (“I’d better rule against Susette Kelo or else the Senate won’t re-confirm me next fall”). I’d prefer “Here’s your ten-or-twelve-or-eighteen-years, then here’s your pension. Thank you for serving your country.”

  243. B Bell on October 6, 2005 at 1:53 pm

    Chad,

    Renewable terms would politicize the process like crazy. Point granted. Of course its politicized like crazy anyway but it would be worse if a justice had to put his finger to the political wind and think if he wanted another term how should he rule?

    a 8-12 year term would be about right because you could discover that the 53 year old justice is not what you wanted after a couple of years and then that justice would be gone in 8-12 years and not 30 years

  244. Adam Greenwood on October 6, 2005 at 2:01 pm

    I don’t think it would politicize judging too much because
    . . (a) Not too many Justices would actually be renewed and
    . . (b) the frequent appointment of Justices would, paradoxically, de-politicize the process a little by making the stakes lower and by making the process more familiar

    Frankly, though, an amendment is probably better off just remaining silent on the issue.

  245. B Bell on October 6, 2005 at 2:04 pm

    A: How long would the terms be? If they are 15-18 year terms then you are right that a lot of people would just retire.
    B.Please elaborate. I think it would get really political

  246. Adam Greenwood on October 6, 2005 at 2:25 pm

    It’s not that they’d choose to retire after 12 years, its that the President might prefer to appoint someone else rather the reappoint a sitting justice. A President would only reappoint a sitting justice if the Justice seemed likely to remain healthy for another 12 years, the President liked what the Justice had done on the Court, the President did not have his own candidates in mind, and the President thought the Justice could be reconfirmed. This won’t happen all too often.

    The first few times it did, it would lead to a hugely politicized fight, because the Justice would have a record. Once candidates with records get confirmed a few times, however, having a record in the future becomes less extraordinary, and though the process is still political, its politics as normal, not a titanic struggle for the soul of the court for the next 20 years. This is also the effect of making sure that nominations happen every 1.5 years or so. Nominations become less extraordinary and so, while still political, the political aspects get less traction.

  247. Last Lemming on October 6, 2005 at 4:43 pm

    I’m for 9 year terms with no possibility of reappointment. Furthermore, if a justice dies or resigns, his or her replacement should be named by the president who made the original appointment.

  248. Adam Greenwood on October 6, 2005 at 4:55 pm

    I hear you, Last Lemming, but I don’t like the idea of a wholly new court every decade. I also think the idea of letting the old President fill the spots is full of cockleburrs. Would the nine-year clock stop ticking until the new nominee was confirmed? If so, you could get some pretty nasty impasses as a former President and a current Congress who have no way to bring pressure to bear on each other play chicken. Would it keep running? If so, you might end up with some pretty short appointments (you might get that anyway, frankly. Not much fun being the one-year Justice, and not much indepedence either). Or would you say that the former President gets to appoint someone for a new 9-year term? Agains, this seems likely to create impasses, since a President who’s moved on since the days when he was electable and politically acountable would seem to have disproportionate power to affect events. Also, what if the former President is dead or incapacitated? Would we need to have some sort of procedure for that? I think this particular proposal creates more problems than it solves.

  249. lyle on October 6, 2005 at 5:49 pm

    Update:

    [Sen.] Graham, who said he is ”predisposed” to support Miers after meeting with her, urged an end to the ”cheap shots” against her.

    ”Be quiet for a little bit and listen, just shut up for a few minutes and give the lady a chance to find out who she is,” he said.

    Dear Sen. Graham:

    You stated the probablem but appear to be too near the President to see it: America deserves a justice who doesn’t need “a chance to find out who she is,” but one who already has a working knowledge of caselaw, precedent and jurisprudence.

    I don’t want to give her a chance…justice isn’t random.

  250. Adam Greenwood on October 6, 2005 at 9:03 pm
  251. Adam Greenwood on October 7, 2005 at 12:37 am

    HM says that her favorite justice is Warren. When asked, clarifies that she meant Warren Burger (who voted for Roe v. Wade and is not known for his manifold talents):

    http://www.washingtonpost.com/wp-dyn/content/article/2005/10/06/AR2005100601713.html?nav=rss_nation/special

    HM’s votes as City Council member in Dallas:

    http://www.grandforks.com/mld/grandforks/news/nation/12837040.htm

    HM vetoing the White House Christmas Message:

    http://www.confirmthem.com/?p=1494#comment-37041

  252. Adam Greenwood on October 7, 2005 at 1:43 am

    Harriet Miers supported affirmative action in voting, denounced Federalist Society:

    http://www.mercurynews.com/mld/mercurynews/news/politics/12836751.htm

  253. Chris Grant on October 7, 2005 at 8:48 am

    Most of the other errors Volokh identified in Miers’ writings were also shown not to be in the original. And then Volokh criticizes her for using a construction with which he is unfamiliar, one that a few seconds of Googling finds paralleled in a speech by New Zealand’s Governor-General and in a document of the Canadian Security Intelligence Service. (But what would they know about how to write proper American?)

    Diane Chambers: “Methinks he doth protest too much!”

    Woody Boyd: “Shouldn’t that be ‘I thinks’?”

  254. Chris Grant on October 7, 2005 at 8:54 am

    Adam Greenwood writes: “HM says that her favorite justice is Warren.”

    According to National Review’s Bench Memos: “Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren — interrupted by Senator Leahy — Burger for his administrative skills. Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn’t express admiration for his jurisprudence.”

  255. Chris Grant on October 7, 2005 at 9:05 am

    Adam Greenwood writes: “Harriet Miers supported affirmative action in voting”

    According to the story Adam linked to, Miers was critical of a representative structure in Dallas that resulted in Blacks and Hispanics, who accounted for 40 percent of the population, holding a much smaller fraction of city council seats. That seems unfair to me, too. Does that make me a supporter of affirmative action?

  256. Adam Greenwood on October 7, 2005 at 9:42 am

    Thanks for the follow ups, Chris Grant. I”ll see if there’s anything to what you say.

  257. lyle on October 7, 2005 at 10:37 am

    Chris: Yes, it does. Race should have nothing to do with politics.

    City councils tend to be either “city wide” or “district” based seats. City wide allows _everyone_ to vote on that nominee. The City wide method has been criticized because it supposedly disenfranchised “minority” voters; on the ‘theory’ that the majority white population won’t vote for a minority candidate. District seats only grant those that live in that area the right to vote on the candidates. Many used a mixed system with both. Either one is “d”emocratic.

    Neither should be chosen for what their outcomes produce; just as Meirs isn’t ‘qualified’ merely because she has no record, no qualifications but will supposedly produce the ‘right’ outcome.

  258. Adam Greenwood on October 7, 2005 at 11:44 am

    Here’s the link Chris Grant was talking about, by K. Lopez of NRO:

    This is what I’m told happened:

    “Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren — interrupted by Senator Leahy — Burger for his administrative skills.

    Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn’t express admiration for his jurisprudence.”

    Its a tribute to the sad state of this nomination that the fact that HM may not think Burger or Warren are the best justices ever is reassuring.

  259. Adam Greenwood on October 7, 2005 at 1:06 pm
  260. B Bell on October 7, 2005 at 1:16 pm

    This was the biggest domestic choice of the Bush presidency. It seems that he blew it. She will need to withdraw her name or the conservative movement will abandon him.

  261. Chris Grant on October 7, 2005 at 1:24 pm

    Lyle writes: “Neither should be chosen for what their outcomes produce

    Did those who set the district boundaries that produced the effect Miers was criticizing do so in a color-blind manner? (Sort of like the color-blindness exercised by the Texas legislature in its latest redrawing of congressional districts?)

  262. Chris Grant on October 7, 2005 at 1:26 pm

    Adam Greenwood writes: “Its a tribute to the sad state of this nomination that the fact that HM may not think Burger or Warren are the best justices ever is reassuring.

    And before that, you were reassured to learn that, contrary to claims of the bloggerati, she didn’t speak of “freedom of liberties”. At what point do you get a little self-conscious passing judgment on this woman based on spectral evidence?

  263. lyle on October 7, 2005 at 2:34 pm

    Chris Grant: Two wrongs do not a right make; assuming an initial wrong was made.

  264. lyle on October 9, 2005 at 1:09 am

    Here is a summary of the “high level” conference call between WH people and conservative/religious types:

    http://www.savethecourt.org/site/c.mwK0JbNTJrF/b.1097919/k.E4D8/RightWing_Leaders_Tout_Miers_Loyalty_to_Bush_Agenda.htm

    I find the comments very troubling. Again, I don’t want a justice who is going to rule based on his/her “beliefs.” I want constitutional jurisprudence, not what Miers had for breakfast or read in the Bible.

  265. lyle on October 9, 2005 at 10:29 am

    Here is where Miers truly belongs; although the appointment of Kavanaugh might make her look more qualified than she is. Kavanaugh was appointed to the D.C. Circuit, but Democrats have refused to vote on him (because he worked for Ken Starr as Indy Prosecutor). He is a former White House counsel and clerked for not one, but two Circuit court judges and then for Justice Kennedy. He is a partner at a nationally known law firm, not just a “nice” Texas law firm.

    “To stand one on one in the Oval Office, and for the President to turn to you and say, ‘What do you recommend?’ you have to be confident, prepared, articulate and smart,” says Brett Kavanaugh, Miers’ successor as White House staff secretary. “She’s done it for five years now.”

    http://www.time.com/time/magazine/article/0,9171,1115621-4,00.html

  266. Adam Greenwood on October 9, 2005 at 7:21 pm

    “At what point do you get a little self-conscious passing judgment on this woman based on spectral evidence?”

    When there is more than spectral evidence suggesting that she is qualified or pro-life or constitutionalist.

  267. Adam Greenwood on October 10, 2005 at 8:52 am

    Bork exercises his gift for being mealy-mouthed and coy:

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

  268. Adam Greenwood on October 10, 2005 at 9:03 am

    Rick Garnett on HM’s disappointing views on the Federalist Society:

    http://bench.nationalreview.com/archives/078960.asp

  269. Adam Greenwood on October 10, 2005 at 9:27 am
  270. Adam Greenwood on October 10, 2005 at 9:47 am

    The HM-picked-Bush’s-great-appellate-nominees argument:
    http://blogwhatnow.blogspot.com/2005/10/should-miers-get-credit-for-bushs.html

  271. Chris Grant on October 10, 2005 at 9:49 am

    Lyle writes: “Two wrongs do not a right make; assuming an initial wrong was made.

    Was Miers advocating pro-minority gerrymandering, or was she simply advocating the undoing of anti-minority gerrymandering? And have you expressed your discontent to the Texas Republican Party about their failure to be color-blind when drawing the current congressional district boundaries? Or do you deny that they so failed?

  272. Adam Greenwood on October 10, 2005 at 9:52 am

    “How did this run out of control so fast?

    We’ll start . . . with the easiest way to understand the Miers nomination: George Bush decided to nominate himself to the Supreme Court:”

    http://opinionjournal.com/columnists/dhenninger/?id=110007375

  273. Adam Greenwood on October 10, 2005 at 10:48 am

    “Was Miers advocating pro-minority gerrymandering”

    Yes.

  274. Adam Greenwood on October 10, 2005 at 10:58 am

    Sotto-voice HM dissent from the White House:

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

  275. Chris Grant on October 10, 2005 at 10:58 am

    Adam Greenwood writes: “‘Was Miers advocating pro-minority gerrymandering’ Yes.

    Sources, please.

  276. lyle on October 10, 2005 at 10:59 am

    Chris:

    They were 110% colorblind when they did the redistricting. The part you don’t seem to understand is that this is done entirely based on voting & securing safe & winnable seats. It’s about politics, not race. If race plays a role, it is secondary. This isn’t racism, it’s called reality based politics.

    I don’t happen to like it personally, but that’s just me. I’d rather have arbitrarily drawn boundaries that don’t take any factor into account, except for population; resulting in districts that split even tinny towns if it makes for equally sized districts that aren’t played with.

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

    Is “sotto-voice” Italian-American for rumormongering?

  278. Chris Grant on October 10, 2005 at 11:20 am

    Lyle writes: “They were 110% colorblind when they did the redistricting. . . If race plays a role, it is secondary.”

    Which was it: a secondary factor or a (10% less than) nonexistent factor? Saying that we wouldn’t be precisely calibrating the optimal mixture of minority and white voters in our district boundaries if minority voters would just learn to vote like white people is not my idea of 110% (or even 100%) colorblindness.

  279. Adam Greenwood on October 10, 2005 at 11:29 am

    Chris Grant,

    Your faith that Harriet Miers deserves to be on the Supreme Court unless convicted beyond a reasonable doubt by unimpeachable evidence is touching, but I can’t share it.

  280. lyle on October 10, 2005 at 11:34 am

    Chris: Exactly how to “white” people vote? That is probably more racist than anything Miers or the Dems have said in a long time.

    Alt: Exactly…it’s not your vision. It is mine however, I have a dream where individuals vote based on qualifications and merit; not religion, not race, etc.

  281. lyle on October 10, 2005 at 11:34 am

    Chris: Exactly how do “white” people vote? That is probably more racist than anything Miers or the Dems have said in a long time.

    Alt: Exactly…it’s not your vision. It is mine however, I have a dream where individuals vote based on qualifications and merit; not religion, not race, etc.

  282. Chris Grant on October 10, 2005 at 11:37 am

    Lyle Stamps asks: “Chris: Exactly how do “white” people vote?

    In Texas, they vote overwhelmingly Republican. Is it really possible that you’re unaware of this fact?

  283. lyle on October 10, 2005 at 12:22 pm

    Chris: What can I say? Except that I find your thinking on race to be the exact reason why race continues to be a problem. There is no such thing as “white” or “black” people. There are only individuals in families. Anything else is an artificial, and in this case, extremely harmful, social creation that only holds individuals in chains.

    Don’t just have a dream, live the dream.

    Sidenote: Historically, your answer is also incorrect. Texas only became a GOP state in the last decade or two. Is it really possible that you’re unaware of this fact?

  284. Chris Grant on October 10, 2005 at 1:07 pm

    Lyle writes: “There is no such thing as ‘white’ or ‘black’ people.

    That makes great poetry, but it doesn’t seem to make much empirical sense. Are there tall people? Bald people? Mormon people? Smart people? People who intended nth-rate Church-affiliated law schools?

    Lyle writes: “ Historically, your answer is also incorrect.

    In the same (i.e., false) sense that the statement “George W. Bush is president of the United States” is historically incorrect.

  285. lyle on October 10, 2005 at 1:14 pm

    Chris: No, there are not. There are “individuals”. Doesn’t the good book say love your neighboor? It doesn’t say “Love your people”

  286. Chris Grant on October 10, 2005 at 2:40 pm

    When I search for “people” in the Good Book, I get 1924 hits.

  287. Adam Greenwood on October 10, 2005 at 2:45 pm

    Now that Chris Grant has gotten the last word, such as it is, I feel comfortable closing this thread. Please refer to the ongoing thread on HM.

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