Friday, October 07, 2005

Miers: mired?

Until now, I've kept out of the Miers Supreme Court nomination brouhaha. But I do have a few observations, mostly about the reaction to her nomination, and about Supreme Court nominations in general.

It seems to me that, ever since Bork, Supreme Court nominations have become highly emotional and conflicted situations, and this one is clearly no exception. Bush may have nominated Miers partly in an attempt to avoid the bitter divisions of the Bork battle; if so, his strategy has most definitely failed.

My own position on Miers herself? It's way to early to say what this woman is actually like and what sort of justice she'll make. Why not just wait for the hearings before starting to squawk so loudly? Right now it's all just idle speculation and guessing: much ado about nothing.

No, she's never been a judge. Yes, she's a friend of Bush's. No, she didn't attend an Ivy League school. Sorry, but I just don't consider any of those facts definitive evidence of anything. What I know about the Supreme Court indicates that the most salient characteristics its justices need are knowledge of the law, intelligence, and reasoning ability, and these are hardly the exclusive provenance of former judges or Ivy League graduates.

The whole thing is a shape-shifting, moving target. What the pundits seem to want in a SCOTUS nominee is precisely whatever it is that the present one lacks. If you don't believe me, try this on for size. It's a question-and-answer discussion with legal scholar John Yoo on the occasion of the Roberts nomination--remember that? It wasn't so terribly long ago, as I recall. (I have taken the liberty of highlighting in boldface the especially relevant parts):

How can someone that has never been a Supreme Court Justice be nominated for Chief Justice? For me it seems as if a person is becoming "police Chief" yet, was never an officer. Does the public have any say in this matter?

Surely the public has a say, by pressuring the President and Senators to demand certain qualifications for the Chief Justice position, if that is what desired. I want to note that several prominent political and legal leaders over the last few years have been calling for the appointment of Supreme Court Justices who have no previous judicial experience. This was, in fact, the normal practice for many parts of our history.

And then there's this:

Philadelphia, Pa.: If I heard the news correctly this morning: John Roberts has never confronted a witness in a trial and has never advised a client of the client's rights. I guess John Roberts should be glad that one does not have to be an attorney to serve on the Supreme Court as John Roberts has never been an attorney. Will the lack of practicing legal experience be any factor in these hearings?

John Yoo: John Roberts has not been a trial attorney, but then many attorneys who practice law in this country have never conducted a cross-examination in a courtroom. Roberts has appeared in court many times however. He has practiced in the appellate courts, which is probably far better preparation for work as a Justice than practicing in the trial courtrooms. I think your observation about Roberts's lack of trial experience is also probably true with regard to most of the other members of the Supreme Court.

I don't expect this lack of trial experience to be a significant factor in the hearings. Over the years, some have called on Presidents to nominate lawyers with more of a diverse background to the Court. It is, right now, composed heavily of former appellate judges with an unusually high number of law professors. Yet, for roughly the last 30 years, Presidents of both political parties have nominated sitting federal judges to the Court. This was not the case in the past, which has witnessed Courts with former Senators, governors, cabinet members, and leaders of the bar as Justices. If Roberts is confirmed, the only member of the Court who will not have been a sitting federal judge at time of appointment will have been O'Connor, who was herself a state judge at the time.

Roberts' lack of trial experience ended up not mattering. He silenced all his critics--well, not all of them, but many of them--quite effectively in his hearings, and made it very difficult for them to press the case against him successfully. Ms. Miers will either do that or she will not do it--and that's a great deal more important than where she happened to go to law school many moons ago.

The "cronyism" charge, on the other hand, makes me think back to the time President Kennedy picked his brother Robert to be Attorney General--now, there was cronyism! (actually, nepotism, but let's not get too technical here):

President Kennedy named his brother Robert attorney general so, as he put it, his brother could "get some legal experience" before getting a job. Congress was not amused by the joke, and although Robert served ably, it later passed a law forbidding the President to make appointments of close relatives to federal office.

Thank goodness for that law. Otherwise, no doubt, Bush's critics would have to deal with his appointment of nephew George P. as Supreme Court Justice--after all, he's got the law degree.

People are often flummoxed by Supreme Court appointees because they'd like to be able to control them and predict exactly what the justice is going to do for the rest of his/her life. That will never be strictly possible (although sometimes, of course, it works out that way). There tend to be a fair number of surprises, because once a nominee is on the Court, all bets are off. It's a bit like marriage used to be when it was pretty much for life and the stricter rules about divorce made it very very difficult to leave: a leap of faith into an unknown future.


At 1:17 PM, October 07, 2005, Blogger Goesh said...

I'm willing to wait and see how she responds to the questions that will come her way. It seems to bother many lawyer types that she does not have much of a paper trail, yet the Constitution does not mandate this, or that anyone be first a Judge in a lower court.

At 1:24 PM, October 07, 2005, Anonymous Anonymous said...

As a lawyer, I can tell you that it's most important to wait until the Senate hearings to see how Miers does. That's the way the Constitution sets up the process.

My primary concern about her is the cronyism charge. As Randy Barnett stated in his excellent article at, Alexander Hamilton specifically stated that the purpose of the Senate confirmation process was to preclude presidential appointments based solely upon cronyism. If that was a concern of Hamilton's, it certainly also should be a concern of the U.S. Senate's.

At 1:27 PM, October 07, 2005, Blogger Yaakov Kirschen said...

Neo-neocon? What a delightful concept. In 1968 I was a duly elected delegate to the Chicago democratic convention representing Upper Manhattan. I was an anti-Vietnam war activist flashing V-signs to the revolutionaries in the streets.
I don't think my morality or sense of history has changed one iota but now I'm considered a right winger because I believe that the folks who say that they want to destroy and rule the west are being honest.
What if they gave a war and everybody had been too blinded by political correctness to defend themselves?!
Oops! Sorry, this is turning into a rant.

You're running a great blog.

BTW I am the cartoonist behind Dry Bones, Israel's political comic strip since 1973. Now a blog with daily 'toons, and the stories behind them.

At 3:42 PM, October 07, 2005, Blogger Sigmund, Carl and Alfred said...

This post is a bell ringer, for sure.

The reference to RFK, in particular, is pointed.

By the way, Rehnquist was never a judge, either- and he turned out alright.

At 6:06 PM, October 07, 2005, Anonymous Anonymous said...

Wait until we actually hear her testimony before judging her. What a great idea.

At 7:37 PM, October 07, 2005, Anonymous klrfz1 said...

I also am fascinated by the conservative opposition to Harriet Miers. Many conservatives seem to have already made up their minds she is not suitable even before her Senate hearing. Such a rush to judgment must be driven by strong emotion. The emotion I am seeing expressed is a feeling of betrayal. I think this feeling of betrayal has been growing for some time and the Meir nomination is just the last straw. I don't share the feeling. While I can see their point when they list times when the President has compromised or even gone against the conventional conservative wisdom (CCW), I can also recall that he has been successful at a number of important issues. Bush has been far more successful as President than most people expected initially. Perhaps there is another contributing problem. What if most of these betrayed conservatives have been conservative Republicans their whole lives and they resent late comers like Bush and Meirs? Some of these critics are still complaining that George W. Bush put the word compassionate in front of conservative. Their Republican Party has been co-opted by people who didn't toil for decades in the conservative vineyards with them. Who wouldn't resent being supplanted, right? Could resentment be powering this strong reaction against Meirs? Seeing as I am making a psychological argument, I hope you will give me your view, neo-neocon. I would like to know if this idea makes sense to you.

At 7:57 PM, October 07, 2005, Blogger chuck said...

What I can't forgive is the vituperation directed at Miers herself: third rate lawyer, bad makeup, incompetent... What did she ever do but answer to the Presidents request to serve? Simple courtesy demands far better treatment than she has received. The lack of respect shown to her as a person is a black eye for the conservatives, in my opinion. Didn't any of those nasty children ever grow up?

As to judging her qualities, I am content to wait on the hearings. I suspect she will do alright. In fact, I'm rooting for her. Love the underdog, I do.

At 11:04 PM, October 07, 2005, Anonymous strcpy said...

At least personally I feel betrayed, but not for the reasons klrfz1 listed.

Basically I've spent a lot of time defending (and rightfully so IMO) Bush against a lot of charges from the left. Quite a bit of the cronyism, and then....this. It may not really be cronyism - maybe he knows her well enough to *know* she will do a good job, but surely there are others that he does also. Then he asks for blind trust. While I do not "not trust" him, I don't particularly trust him either (part of him being a politician - I trust him has far as I do any politician and think he is better than nearly all at a national level). It basically kills years of arguing - I can't point at someone and say "stupid" because cronyism is more likely than not in this case and your thought basically boil down to how much you trust him (along with the "I've been telling you for years, your an idiot"). Ultimately he lost years of political arguing with this giving his opponents something to bash him on that can't be refuted - after all if I'm "wrong" on that then it goes that I am on the rest.

Of the people I know and interact with (both in real life and on the internet) it is mostly what I have said above or simply angry that he didn't pick a hard conservative. I don't see being angry over reason two yet - like NeoNeocon I don't know enough about her to make that judgement and there are few people who do.

Some also were looking for a fight and didn't get it - I can sympathise with that (I too would like to see the fight) but the reality is that the fight would not be good politically and is a piss poor reason to nominate a judge - just would make me feel better spanking some leftist :)

Though, still, in the end the conservatives are still "winning" - even with terrible performance ratings, lots of spending, and cronyism the country still figures the dems are worse. No reason to gloat over your opponents 40% approval rating when yours is 20%. Kerry did that and it got him squat.

At 11:04 PM, October 07, 2005, Blogger Holmes said...

Do you all really think the nomination process answers questions about what sort of Justice she will make? It's hard to even determine what the question is after 20 minutes of grandstanding. And that's what big C Conservatives are upset about- she's a blank slate. This should have been a slam dunk nomination, instead, there is doubt and that is not a good thing when dealing with lifetime appointments.

At 1:38 AM, October 08, 2005, Anonymous john moulder said...

Holmes has a good point about the grandstanders. They use up most of their time blowing hard for the camera & then bitch when the nominee uses a tenth of their allotted time to attempt to answer their hostile & convoluted questions.

Harriet Miers’ relative obscurity may be part of an overall Bush administration strategy. I notice Bush never gets too fancy in his speeches. The phrases & concepts within them are safely uncomplicated & not amenable to ‘interpretation.’ Could it be that due to the MSM’s propensity to examine every word for opportunity to twist into a negative spin it’s been decided to keep the speeches & press releases very simple & without nuance?

Extrapolate that philosophy into the SCOTUS nomination process. You would want to nominate candidates without a paper trail or official announcements that adversaries could distort & use against the candidate.

Roberts was good at thinking on his feet & fielding questions. I saw him oh so politely make Biden look like the fool Biden is & it warmed the cockles of my heart. After that the other grandstanders on the committee didn’t really seem to want to mess with Roberts too much. He was like a great matador; the idiots on the committee would snort, charge, lunge & hook only to be deflected harmlessly off course by magnificent cape technique.

So maybe it’s no accident from the standpoint of Bush’s strategy that Ms. Miers seems to have left no elaborate paper trail & has no judicial record to be trashed. Less is more in that regard. I guess because I’m not a conservative I am not enraged by her nomination. In fact I kind of like her because of who seems to be against her: snooty Ivy Leaguers & smug, righteous rightwingers. Let’s see how she handles the committee.

I remember a committee long ago that was going to slice a Marine named Ollie North up & serve him for breakfast. By the time North got through with them they were only too happy to disband & slink away licking their wounds. One final thought: You don’t get to be the first female president of the State Bar Association in a good ol’ boy state like Texas as part of a good ol’ boy profession like the legal profession unless you have a whole bunch of moxie.

At 6:53 AM, October 08, 2005, Anonymous Dtrumpet said...

Good article. I find it disturbing that conservatives are not living up to the tenets of Conservatism. They are acting and sounding like liberals.
An intelligent person gathers the facts before making a decision and comments. Is not Miers innocent until proven whatever they have charged her with?
As a Conservative I am embarrassed by the lack of concern for fact.

At 8:14 AM, October 08, 2005, Anonymous Anonymous said...

When I heard that George Will had concerns about Miers because she hadn't attended an Ivy League university, I just wanted to say "Why you silly twit."

I trust President Bush's judgement on this. He knows this woman and keeps his word.

I'm betting she surprises everyone in a positive way in the confirmation hearings.

At 3:25 PM, October 08, 2005, Anonymous Anonymous said...

Count on the confirmation hearings? What are you folks smoking?

Ever since Robert Bork's hearing in 1987, these hearings have been exercises in irrelevance. Beside's on Miers could make slo-Joe Biden appear to have a brain. (Now THAT would be a headline!)

The reason conservatives care so passionately about SCOTUS is because no where else do the left and right have such irreconcilable differences. The left believes in the Supremes as a Super-legislator and engine of social change - the right rejects this view, root and branch.

But the Dems with support of the MSM have held out the freedom to hold a veto over the Supremes, despite being a minority. Ever since Bork, they see themselves as defenders of "mainstream" constitutional opinion, and pro-life, anti-Roe views are beyond the pale of all respectability. Public opinion polls support this "don't change" veto-ocracy. Thanks to Senator John McCain's (R) Gang of Fourteen deal, this minority veto game continues and Bush's stealth nominee replies in kind by continuing to play to it.

Meantime, the forever suffering majority are frustrated by this rigged game, hankering for respectabiity, even (or especially) if it requires a fight.

This fiasco crys out for re-examining the role of the Senate. It can't fulfull its obligations of independence and probity by remaining popularly elected. The 17th Amendment must be repealed! Clinton's non-trial "trial" - the first ever in Senate impeachment history - was only the most prominant example demonstrating that the institution is broke. Why should we be surprised to keep seeing the place malfunctioning?

At 3:54 PM, October 08, 2005, Blogger terrye said...

This woman deserves a hearing.

I think the charges of cronyism are a cheap shot. Miers had to earn her own way unlike some of those Ivy Leaguers.

Talk about cronyism, they act as if they own the Supreme Court. Only the right people with the right views who go to the right schools and socialize with the right people need to apply.

What some conservatives need to understand is that without the middle of the road people who think the Democrats are acting whacky they might not be the majority.

I for one am tired of voting for people with an R behind their name just so I can be treated like the red haired step child.

I say give Miers a chance.

The president deserves his nominee and the nominee deserves an up or down vote.

sound familiar?


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