Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 12, 2005
LAW: Judges "Learned in the Law"

It's appropriate at this time to recycle a quote from Justice Scalia that I ran here three years ago regarding judges and their prior public positions on issues, in a case regarding Minnesota's regulations of speech by candidates for election to the bench:

A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." [Quoting same Rehnquist opinion] The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, Sec. 5 ("Judges of the supreme court, the court of appeals and the district court shall be learned in the law"). [A]voiding judicial preconceptions on legal issues is neither possible nor desirable . . .

(Emphasis added; citations omitted).

Posted by Baseball Crank at 12:46 PM | Law 2005 | Comments (27) | TrackBack (0)
Comments

So when do you make it over the hump and say, straight out, Harriet Miers should not be approved?

Posted by: Mike at October 12, 2005 1:50 PM

So when do you climb over the hump and finally say, without equivocation, the Senate should not confirm Harriet Miers?

Posted by: Mike at October 12, 2005 1:52 PM

Sorry -- my browser got flaky, didn't mean to send it twice.

Posted by: Mike at October 12, 2005 1:52 PM

I'm waiting for more evidence on (1) Miers' career in private practice and (2) Miers' thinking, if any, on constitutional philosophy.

If I reach the point of being convinced that there's no more evidence on the way, I'm opposing her. But as I can still imagine the types of evidence that might convince me to support Miers, I'm giving the White House a little more time before I join the rebellion (although I still won't let Bush off the hook for the strictly political aspects of the nomination, which are disastrous).

Posted by: The Crank at October 12, 2005 2:05 PM

Scalia's a smart guy. Too bad he's evil.

[kidding. sort of]

Posted by: Mr Furious at October 12, 2005 2:21 PM

Not sure what evidence can turn up. Your consistent point, that her name never appears on Westlaw searches, is damning. As a managing partner type, I can't see her name popping up on the briefs (or internal memos!) underlying published court opinions. If she wrote law review articles, they'd have turned up by now too. Same for advisory opinions as head of the Texas bar. Are you waiting to see a draft complaint in a negligence case? A contracts mid-term from law school? Sorry to sound flippant, but what are you waiting for?

Nor can I see the hearings showing much. Can a legislator -- facing election at some point over the next 5 years -- afford to sound too wonkish, drilling her on television about her opinion regarding the breadth of the establishment clause, or to what degree it should apply to the states? I'd love to see it, but I'm not counting on it.

If she hasn't written about such issues (frankly pedestrian at the Appeals Court level) as an advocate, academic or judge, she shouldn't even be considered.

Posted by: Mike at October 12, 2005 2:25 PM

I've already cluttered these comments sections with my views on Miers, so you know I'm agin'.

A constitutional tabula rasa is an exceedingly poor choice. Still, technically speaking, federal judges don't have to be "learned in the law," as in Minnesota. Only the Solicitor General of the U.S. is required by statute to be "learned in the law." (By the way, I'm probably the only person in the country who thought Paul Clement, the current Solicitor General, should have been considered for this vacancy -- other than his mother. He's a lot like Roberts, brilliant, experienced, and if I had to guess, more conservative.)

Posted by: Attila (Pillage Idiot) at October 12, 2005 3:26 PM

This should help you over the hump, Crank. It follows perfectly with what Mike is talking about above.

Posted by: Mr Furious at October 13, 2005 11:17 AM

Oh my, that's frightening. A collection of glorified wonk-speak, monstrous constructions of verbs turned into nouns and vice-versa, all in the service of the muddled ideas underlying the words. Or vice versa. As Orwell said in "Politics and the English Language":

"You can shirk [the effort to let words express fresh ideas] by simply throwing your mind open and letting the ready-made phrases come crowding in. They will construct your sentences for you -- even think your thoughts for you, to a certain extent -- and at need they will perform the important service of partially concealing your meaning even from yourself. It is at this point that the special connection between politics and the debasement of language becomes clear."

Miers' writing does just what Orwell warned against. No wonder she admires Burger! Perhaps she's just a miserable prose stylist. That's ok; we don't necessarily need, or want, another Cardozo. More likely though, as Brooks suggests, her reasoning skills are weak, her analyses unoriginal. Lack of originality, like lack of artful phrasing, should not disqualify her. But if we end up with nothing more than a trained chimp, skilled in identifying Constitutional phrases and filling in the relevant check-box, why not just opt for the chimp? It'll do less harm.

Posted by: Mike at October 13, 2005 1:05 PM

Those selections are indeed horrible - I would have serious concerns about recommening that an offer be given to a summer associate at my firm who wrote like that - and I too was reminded of that passage from Orwell (there's a reason I have a permalink to that essay in the sidebar). If that is truly representative of her writing, I will oppose her confirmation. The Supreme Court, after all, isn't a legislature; the real work gets done not in voting on 90 or so cases a year but in writing opinions that guide the many thousands of cases that never reach the Court. A Justice that vague and vapid will make the lives of practicing lawyers miserable regardless of ideology.

On the other hand, as a few people have pointed out, these kinds of letters are generally intended to be content-free and inoffensive. It is possible that Miers writes better than that when she is seeking to be persuasive. But I can't say I'm optimistic on that score. I remain in the "open mind but leaning 'no'" column.

Posted by: The Crank at October 13, 2005 1:16 PM

Where would all the Righties stand on Miers if, say, she had been Bill Clinton's personal lawyer (and thus appointed by him), had little to no relevant experience and her paper trail was either non-existant or not so beuno to read? It seems that the only reason for you all to hold on to a confirmation for her is that you EXPECT her to be Bush and Rove's little lap dog on the Court. You cannot, it appears, find a shred of evidence to support her other than she is a Bush appointee so, in the grand scheme of things how bad could she be? She'll just do what she it told. This seems to be the only item that the Right is hanging their hats on.

Posted by: jim at October 13, 2005 2:17 PM

jim - Another way of saying the same thing would be that as I learn more I'm trying to give Bush the benefit of the doubt here because I trust him and I didn't trust Clinton. Which should not surprise you.

Posted by: The Crank at October 13, 2005 2:25 PM

In fairness to Crank, not to mention Kristol, Will, and others, I don't see it that way. I get the feeling the Thinking Right is pretty damn EMBARRASSED by this nomination, and those who are hanging on before deciding are just hoping (against hope) that a smoking gun indicating substance turns up.

Again, that's the Thinking Right. And I respect them, even if my ideal candidate and their's differ. But there are still plenty of hacks out there, shilling with the requisite dearth of shame & dignity, putting Harriet on some pedestal she's not fit to stand upon. And as for the Parade of BS coming from the White House on this issue . . . don't even get me started.

Posted by: Mike at October 13, 2005 2:33 PM

Crank, I know. The idea that you give this guy any slack is amazing. Does he literally need to burn the country to the ground before trust wavers?

Posted by: jim at October 13, 2005 3:44 PM

Crank, you are displaying a level of loyalty to the President that might just get you the next SC nomination!

I have little doubt you are at least as qualified as Miers—you are certainly a better writer and have see the inside of a courtroom recently.

At the very least maybe he'll tap you for her old Counsel job.

I'm teasing, of course, but jim's point/question is valid—what does it take for your trust to waver? I'd imagine there'd be a steady erosion by now. How do you hold on? And I don't mean in comparison to Clinton (or a hypothetical Kerry). I know why you voted for him, when will the disappointment set in? Will it ever?

Thanks for the Orwell link, I'll check that out later. Probably after I loosen up with a couple of your old baseball columns I found down there too.

Posted by: Mr Furious at October 13, 2005 4:03 PM

Thoughts on last night's ALCS fiasco?

Posted by: Mr Furious at October 13, 2005 4:03 PM

Mr. Crank - I know this is off topic a bit, but a while back you trumpeted the success the GOP has had making inroads with African American voters. Well, I wondered if you noticed that Bush weighed in with a whopping 2% approval rating among black voters in the most recent NBC/WSJ poll. I think that is the lowest poll number I've ever seen anywhere.

With a three percent margin of error, could the President actually have a negative approval rating? Hmmm, out of 100 people surveyed, 101 people thought the President was in over his head. Wow! (see disccussion of poll on NBC: http://video.msn.com/v/us/v.htm?f=00&g=8ef96d8f-5e33-460b-9bcd-4a4d95b2b44d&t=m5&p=Source_Nightly%20News)

Posted by: pat_rick at October 13, 2005 6:49 PM

Back on topic: did you see in his NYT column today, David Brooks tees up Ms. Miers and whacks her with a Big Bertha driver. If the writing samples he quotes are the most in depth available, then you gotta ask, what was the president thinking? But, I admit, I've been asking that question for 5 years. (yes I relocated this topic from a less populated board...so, sue me!!)

Posted by: pat_rick at October 13, 2005 6:54 PM

Maybe it will waver if it is discovered that he appointed the friend of a large political contributor who had recently been fired as the president of the International Arabian Horse Association for poor managerial skills to a position such as director of FEMA and then appoints a lawyer with Republican political connections but no experience with health issues or crisis management to a post such as heading a task force on a potential avian flu threat. That is just too outrageous to imagine happening though.

Posted by: jim at October 14, 2005 4:06 PM

jim - In Brown's (limited) defense, he wasn't appointed head of FEMA until he had worked at FEMA for four years, through 9/11, the Florida hurricanes, etc. It was a bad decision to give Brown a job and again to promote him, but it wasn't as egregious as you make it sound.

Posted by: The Crank at October 14, 2005 4:49 PM

Regarding the media feasting on the inadvertant transmittal of the Administration prepping soldiers in Iraq: this may surprise you following my two previous quotes, but it makes me SICK. I GUARANTEE if the media received the same feed three years ago when GWB was prancing around on a flight deck declaring victory in Iraq (sorry but that's what he did, and also sorry to five star General Wesly Clark for borrowing a well chosen verb), the media would have sat on the story. NO ONE HAD THE GUTS TO BROADCAST THAT STORY THREE YEARS AGO. And now it plays on every single newscast - I personally watched it on four different ones.

This of course in no way disparages our gracious host Mr. Crank, beause I know he calls it like he sees it no matter who is in office (no sarcasm implied, none at all.)

Posted by: patrick at October 14, 2005 9:32 PM

You allude to an interesting point, Patrick. An interesting "Tipping Point," as Mr. Sullivan or another big blogger might say.

But it looks as though, when we view Bush II's second term through an historical lens, Katrina will be the moment when the little boy yelled out that the Emperor was prancing in the nude. Until that moment, no amount of idiotic prancing was fodder for discussion -- including the insulting absurdity of the PRESIDENT OF THE UNITED STATES potentially putting his life in danger for a PR stunt, or wearing a package-hugging flight suit right out of Iron Eagle II. Let alone any questioning of actual policy (some of which I support, some that I don't, by the way), domestic or abroad. But after the massive clusterf**k of the Katrina response, rightly or wrongly blamed on Bush, he no longer wears any clothes. And everyone in the media has followed Shepard Smith & Geraldo in screaming it out every chance they get.

But you know what? That's what the press is for, so I say, it's about time. Bush is a big boy, he's got a tough job. He should be able to handle it.

Posted by: Mike at October 15, 2005 8:54 AM

We're way off topic here but . . . "Administration prepping soldiers in Iraq"? You guys do know how bogus that story is, right? I mean, if your boss wants to ask you questions, don't you want to know in advance what the questions are? Especially if they are on national TV?

Posted by: The Crank at October 15, 2005 10:49 AM

The point is that Bush consistently appoints people with extremely little to seemingly no qualifications for jobs of import. You're supposed to give the Brown's of the world diplomatic jobs to small countries with warm weather. It is though he never left the frat house.

Posted by: jim at October 15, 2005 11:27 AM

A bogus story maybe, but more importantly, I think its a frightening example of the herd mentality of the media. And this same herd, for too long, was corraled like a bunch of big fat heffers by the administration.

Posted by: pat_rick at October 15, 2005 3:36 PM

It seems that every time Bush talks about someone's qualifications, he says something like, "He's got a good heart." Or, "he's a good man."

Posted by: Steve at October 16, 2005 12:31 PM

Or "she has M&Ms in her office and she shares them."

Posted by: jim at October 16, 2005 4:34 PM
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