Judging Harriet

Methinks I hear the fat lady singing for Ms. Miers, and it's an ugly sound--a cross between a squawk, a whine, a groan, and a croak.

I don't believe we have any real way of knowing whether Ms. Miers is as competent and meritorious as Bush has alleged, or as incompetent and mediocre as nearly everyone else is saying. But I, for one, am willing to wait to actually hear the lady speak for herself before I make a final judgment (in other words, TTLB: I am neutral on the Miers nomination).

There's certainly much to criticize about this nomination--particularly, IMHO, Miers's closeness to the President (although the argument could also be made that this means he knows her likely judicial philosophy). But I've been surprised at how much of the recent criticism, especially in the blogosphere, has focused on her writing ability as demonstrated in her answers to the Senate Judiciary Committee questionnaire.

Now, I'm not able to give a learned discourse on just how grievously Miers may have erred in claiming that the Equal Protection clause has a proportional representation requirement (a little? a lot? not at all?), but I'm able to speak with more conviction about her writing ability.

First, there's spelling and grammar: I hadn't been aware until now that Ms. Miers was applying for a job as proofreader. I've done some editing here and there and, believe me, proofreading is a highly overrated (although extremely necessary) skill that doesn't say much one way or the other about intelligence and/or reasoning ability.

Those who state that committing a few typos and grammatical errors is a failure of precision and carefulness are quite correct. But it's a failure of precision and carefulness that's irrelevant and immaterial (to coin a legal phrase), and this heated criticism represents a repellent phenomenon I've never witnessed before and never care to witness again: a grammatical feeding frenzy.

Another criticism of Miers's responses is their brevity--in particular, her answer to the only substantive question, the final one, which deals with her views on judicial activism. For example, James Joyner of Outside the Beltway criticized its shortness.

I decided, just for fun, to compare the length of Ms. Miers's answer to that of John Roberts. As far as I know, I'm the first in the blogosphere to actually do this mindbogglingly difficult piece of research, which involves the arduous task of going to the PDF file of Miers's questionnaire and the PDF file of Roberts's questionnaire and actually counting the pages in each answer. Well, the font's a bit different, so it's hard to compare exactly, but Roberts's answer to the question appears to be shorter than that of Ms. Miers by a full page.

Do I care that it's shorter? Nope, I've never felt that length had much to do with evaluating the worth of a piece of writing. But if people are going to criticize Ms. Miers for not writing a long enough answer, how can they ignore the fact that hers is longer than Roberts's?

Then I read her answer. Not quickly, but slowly. And what did I find when I actually read it? I found it a bit dry, straightforward, relatively uninspired--but it seemed intelligent. Yes, you heard me right--it seemed intelligent (and, by the way, indicative of a constructionist approach, as far as I can see). Was it markedly erudite? Not especially. Was it eloquent? No. Was it clear and intelligible? Perfectly. Was it going to set the world on fire with the extremity of its brilliance? No.

And then I went back to that other questionnaire filled out by someone who actually had set the world on fire (metaphorically speaking, that is) with the extremity of his brilliance in his Senate hearings: John Roberts.

And what did I find? Is his answer to the same question well-written? It's competent enough. The style is more formal and conventionally academic than Ms. Miers's, a bit more ornate. Is it clear? Sure. Does he actually say anything much different than Ms. Miers's does? No. Does the answer demonstrate his genius? No. It was a decent response, nothing more (by the way, I'm not cutting and pasting any examples here because the files are in read-only format. So you'll have to take a look yourself: Miers's answer begins on page 55 of her questionnaire, and Roberts's begins on page 66 of his.)

In fact, I think Miers's essay has more content as well as length. I went through both essays writing down a summary of the major thoughts in each paragraph (I'll spare you a copy of that, dear readers). The Committee's judicial activism question isn't framed in a way that opens itself up to groundbreaking thinking, so you'll pardon me if I say that, IMHO, Roberts's answer wasn't all that different from a regurgitation of the first few days of an undergraduate ConLaw course (the phrase Joyner used to describe Miers's answer).

To those who have criticized Miers's answer so heavily, I'd love to see them compare and contrast it with Roberts's answer, and explain in what ways his is so clearly superior to hers. It's definitely possible that there are some legal niceties I'm missing here. But I haven't even seen a single attempt at a comparison. Why not?

It seems to me that the nature of the question itself, and the need to give an answer sufficiently vague as to not leave oneself open for criticism, dictate that any possible answer will be rather mediocre. In fact, I'd be surprised if the answer of any candidate so far has been especially wonderful .

Let me make it perfectly clear: I don't care. I don't care that Roberts's answer is pretty pedestrian, and rather short. I think he'll make an excellent justice, perhaps even a stellar one. But Ms. Miers's answer to this question--the only "substantive" one in the entire document--actually shows a bit more imagination than that of Roberts. She makes the interesting--to me, at least--point that she has experience in all three branches of government: judicial (in her clerkship to Judge Estes), legislative (in her position on the Dallas City Council), and executive (as President Bush's counsel)--and that therefore she has firsthand personal experience of how the three branches of government interact, and what roles each has in relation to the judiciary and to each other. It's a decent point, and it's an argument from experience.

Oh, and I found a couple of punctuation errors in Mr. Roberts's questionnaire: a comma or two that I see as problems, and one improper use of the dash. And no doubt someone looking at this post of mine can find a couple of similar mistakes too, even though I've tried to proofread it carefully. Do you really care? I don't--although, of course, I'd prefer all these documents to be absolutely perfect.

I don't mean to say that Ms. Miers is smarter or would be a better justice than Mr. Roberts; there's no indication that that's true. I also believe she's far from the best nominee possible for the position. But can we not wait to hear how she thinks and reasons during her Senate hearings? We learned a great deal about Mr. Roberts this way. What's the all-fired hurry to condemn her? Surely there will be enough time to do this after her hearings, if she is indeed the fool so many say she is.

Oh, and another thing. Please read "Remote Control" by Stuart Taylor, Jr., a piece that appeared in the September 2005 issue of the Atlantic Monthly. It's an eloquent plea for appointing a justice with real-world rather than just ivory-tower or academic experience (suggesting, specifically, a person who "has argued big-time commercial lawsuits"). One can almost hear it as a plea for a justice like Ms. Miers, although author Taylor now says he doesn't support her for the job.

Mr. Taylor recently wrote that the closeness of Ms. Miers's relationship to the President, and her position as his advocate, is especially troubling:

Might she shy away from casting votes that could cause Bush political embarrassment? Or even ask herself, "What would the president want me to do?"... A few presidential cronies have, of course, turned out to be notable justices. They include Robert Jackson, Hugo Black and Felix Frankfurter, all appointed by President Franklin Roosevelt. But each of them had been a legal or political giant of independent stature – as attorney general, U.S. senator, and Harvard Law School dean [sic: he was a professor at HLS], respectively – before taking the bench.

Good point. It's the closeness of her relationship with the President coupled with her lack of extraordinary independent stature that should give one pause.

But to give pause is not to reject outright. It seems that Taylor is with me; he's still willing to give Ms. Miers a final chance to prove herself:

The Senate should reject any Supreme Court nominee – especially one close to the president – who has not proven herself to have extraordinary ability and independence of judgment unskewed by loyalty. The woman who once called Bush the most brilliant man she had ever met has not met this burden of proof during her first 60 years. Unless she can do so in the next few weeks, she should be treated with respect, praised for her character and accomplishments, and voted down.

Ms. Miers needs to show her independence and keen intelligence in the hearings. If so, she should be approved; if not, rejected.

And lastly, while waiting to hear what she has to say and how she acquits herself, you might want to read this Washington Post profile of Miers, written before the feeding frenzy really got going.