Thursday, October 6, 2005

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More Miers links

Both Virginia Postrel and Ann Althouse have plenty of posts up about the Miers confirmation, so go check them out.

In this one, Althouse asks:

I have yet to see a single piece of writing by Harriet Miers dealing with an issue of constitutional law or even anything purporting to demonstrate the analytical, interpretive skills required to serve on the Supreme Court. The nomination was announced on Monday. It's Thursday. Can we have something in writing that shows her mind in action, that inspires confidence that this is a person whose judgment we should all trust for the next two decades?

This Jim Lindgren post probably won't assuage her.

In this post, Postrel partially corrects Lindgren's assessment -- but then goes onto observe, "The prose is indeed clunky, however, and the article is banal in that well-known corporate way, where you make an argument--her main point is that the courts need more money--without any sharp points."

I'll give the last word to Postrel, who rebuts the snobbery argument:

The anti-snobbery defense of Miers is an understandable but wrong-headed one--doubly so when it comes from graduates of large, research-oriented public universities that attract great students with low tuitions. My father, a math and physics major at Davidson (a far more academically oriented school then and now than SMU), always had that same southern chip on his shoulder about the Ivy League. Then I went to Princeton, and he discovered that they really do teach you more there. Most important, of course, is that nobody would care where Miers had gone to school if she had a track record, whether as a scholar, a policy maker, or a litigator, on constitutional law. (emphasis added)

posted by Dan on 10.06.05 at 06:41 PM


Miers was nominated to save Roe vs. Wade.

The far right had its heart set on knocking that decision down, but this judicial choice shows that Bush & Rove are simply putting politics ahead of their own principles. Who could be surprised?

Obviously if Roe really was overturned, the Republicans would suffer. The party likes to talk the anti-abortion talk but the seriously powerful within the party know that walking the walk would drive moderates away in droves.

Keeping abortion legal, and Republican anti-abortion rhetoric strong, is the perfect recipe for keeping the Christian right as a sort of Republican pet in a governing coalition. That is the reason for the squeals of outrage from the right. They know they are being used.

I speak as an abortion rights supporter. Sometimes I think Roe should be overturned, so the stakes in this debate could be really seen by the American people.

I recall reading about I think it was Portugal, where abortion was made illegal, and the press swooped down upon (stories of) the dead and bloody pretty white teenagers like you wouldn't believe. It would alter the standard mainstream media diet of pretty white teenagers dead from other causes.
It is an issue of life and death, after all.

posted by: camille roy on 10.06.05 at 06:41 PM [permalink]

I have encased myself in the Cone of Silence with respect to the Court nomination for the time being. But, Virginia does have a very interesting post about guacamole, which I never used to like.

posted by: Zathras on 10.06.05 at 06:41 PM [permalink]

Just for comparison:

Rehnquist:Clerk to Justice Robert H. Jackson, Supreme Court of the United States, February 1952-June 1953.
Miers: clerked for U.S. District Judge Joe E. Estes from 1970 to 1972.

Rehnquist:Private practice of law, Phoenix, Arizona, 1953-1969. Military 1943-1946.
Miers:Private practice 1972-2000, managing partner 1998-2000. 1995 until 2000, chair of the Texas Lottery Commission. 1992 first woman president of the Texas State Bar. 1985 became the first woman president of the Dallas Bar Association. Member-At-Large on the Dallas City Council.

Renhquist:Appointed Assistant Attorney General, Office of Legal Counsel, by President Nixon in January 1969.

Miers: Counsel to the President. Assistant to the President and Deputy Chief of Staff, and prior to that Assistant to the President and Staff Secretary.

Renhquist:"Nominated Associate Justice of the Supreme Court of the United States by President Nixon on October 21, 1971; sworn in on January 7, 1972."
Miers:We know


Former Chief Justice William Rehnquist
Never a judge, did clerk for a supreme court justice, private practice and government lawyer the rest of his career.
Miers, Never a judge, clerked for a district court judge, private practice/government service/ABA, counsel to the president.
Qualified or not qualified?

posted by: Mark Buehner on 10.06.05 at 06:41 PM [permalink]

Rehnquist was far more qualified than Miers in the sense that (1) Rehnquiest had performed work (as a SCOTUS clerk) similar to that which he was expected to do on the Supreme Court. (2) Rehnquist was appointed to the Office of Legal Counsel to perform legal work, something which seems incidental to Miers' selection. (3) Rehnquist had published views on constitutional issues. (4) Rehnqist's private practice included more appellate experience.

There are more subtle points about Rehnquist's background, such as his military experience, the accolades of his law school professors ("best of his generation") or his previous conversations with other SCOTUS justices.

posted by: PD Shaw on 10.06.05 at 06:41 PM [permalink]

Good points, but certainly Miers has counter arguments along the same lines:

-As assistant to the president, was at the very highest levels of Executive decision making, particularly at this time in history.
-As Council to the President, Miers has been the president's top lawyer for both himself and the WH(and I think a lot of people would stipulate that being this administrations top lawyer keeps you busy).
-This role also made her his top advisor on supreme court nominee selections, so she is no stranger to SCOTUS either.

-Miers may well have more actual experience as a practicing lawyer than anyone on the court.
-Managed a lawfirm of over 400 people, no other justice has that kind of business/real world background.
-Was _suggested_ by Minority Leader Harry Reid, has been lauded by members of both parties, in the executive and legislative branches.
-Did all this as a woman, which provides a unique background and perspective, particularly with her business/advocate background. It is quite possible no other woman in America has that combination or qualification.

Now maybe that stacks up to Rehnquist, maybe not. The lack of written opinions is certainly a difficultly, and Zathras certainly right about waiting until the hearings to reserve judgement. That being said I dont think its a slam dunk case that Miers is unqualified in comparison to other justices. Her qualifications are certainly _different_, but whether they are lacking is a subjective judgement.

posted by: Mark Buehner on 10.06.05 at 06:41 PM [permalink]

I don't think I could ever say that she's absolutely not qualified since there are really no qualifications per se. But I would say that she will be one of the least qualified justices born since 1900. I think Justices Powell and Fortas are the favorable comparison points. Whoopee! And I do think a mediocore candidate should be rejected when there are so many other more qualified candidates, including women judges and advocates in the Solicitor's General's office.

posted by: PD Shaw on 10.06.05 at 06:41 PM [permalink]


I applaud your effort for trying to make a better post- unfortunately the logic just still doesn't past muster.

Look at what you've provided as the counter-argument for Miers being qualified- they are neither distinctive for being a top candidate for SCOTUS (extensive private practice, managing a firm and being a woman- there are others that have this and more) or have to do with the fact that she was previously chosen for something by Bush. Given that we are questioning the value of his pick, evidence that she has experience based on being picked by Bush is logically excluded. Who is to say that she has done exceptionally well in that position? A lot of people are saying she was professional and courteous, no one is stating she was exceptional.

SCOTUS is for exceptional.

Keep on trying if you'd like, but your logic and thinking skills just don't belong on a blog like Drezner.

posted by: RZ on 10.06.05 at 06:41 PM [permalink]


And your ad hominems do?

posted by: Appalled Moderate on 10.06.05 at 06:41 PM [permalink]

I skimmed the 16 court decisions in which Miers is identified as counsel (often one of multiple attorneys). They arise from 13 cases and 7 of them are appeals. I would like to know how many attorneys holding themselves out as practicing in the area of civil litigation and appeals would only have 7 appeals in 30 years.

The cases look too boring to read.

posted by: PD Shaw on 10.06.05 at 06:41 PM [permalink]


I did point out the faults in his logic, so ad hominem this isn't...

posted by: RZ on 10.06.05 at 06:41 PM [permalink]

"I did point out the faults in his logic, so ad hominem this isn't..."

Except you did not in fact find a fault in his logic. Actually you confused two entirely separate arguments, namely (1) Miers is qualified because Bush says she is and we should trust Bush (an argument no one is making on this blog) and (2) Miers is qualified because her resume is comparable to various historic justices, e.g. Rehnquist in this particular case.

Whether Bush has good judgment is entirely separate from whether or not Miers does in fact have 4+ years experience working in the White House.

The other "fault" in logic you pointed out was an unsuported assertion on your part that "SCOTUS is for the exceptional" The Supreme Court is not and has never been made up of the 9 most respected law professors much less the 9 wisest people in the US.

posted by: George on 10.06.05 at 06:41 PM [permalink]

Beldar seems to have found some cases that Miers worked on. Check:

He starts:

"Eight of those represent not appeals, but published opinions written by federal district judges. But such opinions are generally only published when the authoring judge recognizes that his ruling constitutes an important or new precedent, and they usually reflect a level of briefing by the litigants and writing by the judge that's essentially indistinguishable from an appellate proceeding. Another four are decisions from various of the intermediate-level appellate courts in Texas. The remaining seven are published opinions from decisions in the United States Court of Appeals for the Fifth Circuit.

Now, the way these things work, this database won't show any of the state-court cases that Ms. Miers has handled, even if they were tried to a verdict, unless one side or the other took an appeal. (Texas state-court trial judges don't publish written opinions, and don't very often write them at all.) And this database almost certainly won't show but a tiny fraction of the cases she worked on that settled before trial, which is what happens to 95+ percent of all cases everywhere. So there are are definite limits to what we ought to expect from this romp. At best, it's going to give us her appellate cases, plus a tiny snapshot of a few trial court matters. She's mostly been a trial-court lawyer, not an appellate specialist like John Roberts, so this search is going to leave out anywhere from, I'd guess, at least 50 maybe up to 90 percent of her actual career experiences."

Unlike 99.9% of the people pontificating on Miers, he understands the life of a trial lawyer in Texas. That's probably because that is what he does.

posted by: pat on 10.06.05 at 06:41 PM [permalink]

Beldar said Miers' career compares favorably with O'Connor's. Anybody can google a history of O'Connor and decide Beldar's objectivity for themselves.

I used Lexis for my scan of court decisions, but I still stand by my point. Seven or eleven appeals in thirty years is a pretty low number to hold oneself out as a lawyer practicing in the area of "civil litigation and appeals."

posted by: PD Shaw on 10.06.05 at 06:41 PM [permalink]

One other problem with Beldar . . ., his resume, as far as private practice goes, kicks butt over Miers, so he's not exactly helping her cause.

posted by: PD Shaw on 10.06.05 at 06:41 PM [permalink]


Take a look and read again, you misunderstood.

My point is that Miers resume is largely built on Bush appointing her to her prior positions. Since its the same person nominating her for all of them, it doesn't make sense to give her credit for building an impressive resume- typically breadth of experience demonstrates multiple people/situtations validating success, but that's not the case when one person provides all of the job offers. Her other experience in private practice isn't really a differentiating factor. Rehnquist's experience, while may be similar, didn't rely on one person to appoint him to the mojority of his positions.

As for the "exceptional" point, you placed your definition of it onto my post- an incorrect assertion. As for support, read pretty much any opinion piece on SCOTUS these days, the majority of people agree with me- regardless of political origin.

posted by: RZ on 10.06.05 at 06:41 PM [permalink]

Ok...I'll take the job...

I always wanted to be a S.C. judge...

It's a great job...You only have to listen
to a bunch of idiots for 30 minutes. [Although
I think 35 minutes would be ok too. :) ]

Then it's off to lunch, golf, then dinner...

Yawn...It's hard being a S.C. judge.

Did I mention that I let all my law clerks do
the hard work. That's what they're for...right...Right?

posted by: James on 10.06.05 at 06:41 PM [permalink]


OTOH I'm not quite sure what your point is since it seems like Miers has many different jobs on her resume given to her by many different people, certainly more than Rehnquist.

You also seem to not value experience in itself. I don't think anyone would say Rehnquist was qualified for the Court because John Mitchell thought he did a great job at Justice and convinced Nixon to appoint him. To my mind the value of his Government experiance was that he had spent 3-4 years honing his legal skills working on important matters at the Justice Department.

"As for the "exceptional" point, you placed your definition of it onto my post- an incorrect assertion."

Well, what do you mean by exceptional then? A cursory examination of the history of the Court will show that it is not a bastion of exceptionalism. Most, if not all, appointments are made for political reasons.

Professional machine politics made these things more straightforward in the past. Hugo Black and William O. Douglas were appointed because they were staunch New Dealers who were expected to uphold FDR's policies. William Taft and Earl Warren were Republican stalwarts given the Chief Justiceship as a reward for their service to the party.

Since the decline of machine politics appointments are designed to please interest groups. Thurgood Marshall, Clarence Thomas, Ruth Bader Ginsberg, O'Connor, Haysworth, Carswell, Powell were all blatant interest group choices.

Given the history of Supreme Court nominations I don't see the SCOTUS as a place only for truly exceptional lawyers.

"As for support, read pretty much any opinion piece on SCOTUS these days, the majority of people agree with me- regardless of political origin."

The appeal to the majority is a logical fallacy.

posted by: george on 10.06.05 at 06:41 PM [permalink]


Don't remember anyone else from SMU with a district court clerkship.

Miers non-Bush experience is at the bottom of the list, and her education is at the absolute bottom.

Average experiences plus low academic achievement?

She is not like the others, no matter how much you write it.

posted by: George on 10.06.05 at 06:41 PM [permalink]


Appealing to the majority (which wasn't what I was suggesting anyways, you either intentionally or unintenionally keep twisting the meaning of my posts) has nothing to do with logic. You can argue something else if you'd like, but it has NOTHING to do with logic.

posted by: RZ on 10.06.05 at 06:41 PM [permalink]

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