Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 21, 2005
LAW: It's The Opinions, Stupid (Or: Why I'm Off The Fence And Opposing Miers)

After weeks of trying to keep an open mind about the Harriet Miers nomination, I've concluded that the Senate should vote down Miers - if her nomination isn't withdrawn first - and force President Bush to nominate someone else. Let me explain why.

Now, as you will recall, I was initially disappointed with this nomination, but then John Roberts wasn't my first choice either. You need more than disappointment at the absence of better candidates to justify actively opposing the confirmation of the president's chosen nominee. And there were some things I liked about Miers: I do believe that it would be a good thing to have a Justice who has practiced law at the trial-court level.

The Confirmation Standard

I started off with three big-picture questions about Miers, and five more specific concerns. The three big picture questions:

A. Do I believe Miers would be a good Justice in terms of things like legal skill, proper attention to relevant detail, and understanding of the need for clarity?

B. Do I believe Miers would be acceptable to me as a conservative, in terms both of following an acceptable method of deciding cases and generally acceptable results?

C. How certain do I need to be of #1 and #2 to support the nominee?

(B, of course, is shorthand here - if I accept the nominee's philosophical/methodological approach, I'm willing to live with the possibility of some results that will make me unhappy. The more ad hoc or unpredictable the nominee's approach, by contrast, the more worried I get about particular cases).

Question C is the tough one, if you think seriously about the question of what role the Senate - and those of us who comment on these things, who can (once the nomination is made) only look at this from the perspective of what the Senate should do - should play in the confirmation process. On the one hand, the Senate's job is to decide if the nominee is acceptable and then vote on her - not argue over who might have made a better Justice. The president's choice is entitled to some deference, as he gets to choose. On the other hand, appointments to the Supreme Court are enormously important, mistakes are impossible to fix once confirmed and can have consequences reaching decades or centuries into the future, and there is one specific area - the president's choice of close personal friends - that warrants less deference, as it was a particular item of concern to the Founding Fathers. In light of that concern, I believe more scrutiny is required of Miers' qualifications than would be the case if she were not a close personal friend of the president.

As to ideology, my feeling all along has been that presidents are entitled - indeed, obligated, if you take seriously the idea that legitimacy flows from the people's approval of the principled positions taken during an election campaign - to nominate Supreme Court Justices who are consistent with the publicly declared philosophy of the president, and the Senate is justified in rejecting nominees on ideological grounds only if the nominee is far out of whack with what the people were entitled to expect from the president they elected. To give an example, Bill Clinton ran as essentially a social liberal - as far as the issues that are decided by courts are concerned - but with one significant exception, that being that Clinton supported the death penalty. There were a number of Supreme Court Justices in the late 80s/early 90s - I believe Brennan, Blackmun and Marshall all did this - who made a practice of voting to overturn all death sentences, to the point of dissenting from the Court's orders denying certiorari in each and every death penalty case not taken by the Court. Clinton was entitled to appoint liberal Justices, as he did, and as were confirmed by the Senate with significant Republican support. But I do think the Senate would have been justified in rejecting a Clinton nominee who was, in the Brennan mold, a doctrinaire, no-exceptions opponent of the death penalty, because that would have been out of step with the philosophy the president campaigned on.

In Bush's case, he unquestionably campaigned and has promoted himself in office as a social conservative - pro-life, anti-same-sex-marriage, in favor of an expanded role for religion in public life. He has also campaigned and governed, at least in terms of stated philosophy, as an economic conservative. There is no justification for rejecting a Bush nominee on grounds that the nominee appears to be pro-life or pro-business. And Bush touted his belief that he admired Justices Scalia and Thomas; thus the Senate should have no grounds for rejecting a nominee in that mold. On the other hand, a nominee who was a genuinely radical small-government conservative or libertarian - i.e., someone who wanted to bring back the rule of Lochner under which the courts make substantive judgments about economic regulations - might legitimately be rejected as out of the mainstream of the Republican party and the president who leads it. This is why I think that, of the frequently discussed potential nominees, Janice Rogers Brown is the only one who might legitimately be voted down on ideological grounds (although I understand the argument that the charges against her are overstated; I'm speaking hypothetically here).

The flip side of that is that the president's own supporters do have an obligation, I believe, to reject a nominee who is dramatically inconsistent, in terms of judicial philosophy, with the president's own stated philosophy. And that has been a big concern with Harriet Miers.

The Trouble With Harriet

Turning to specific questions about Miers, I've raised a number of concerns about her - click here and scroll down. These boil down to five more specific questions:

1. Does her lack of grounding in constitutional law and theory, taken together with what we know of her temperament, indicate that she will drift from her moorings once on the Court?

I'm inclined to give Bush some benefit of the doubt on the temperament issue, as he knows her well, but the lack of experience with constitutional law worries me, and worries me all the moreso as she seems to be fumbling her way through meetings with senators and botching her questionnaire by giving, at best, opaque answers about constitutional subjects. As I've explained here, and as Justices Scalia and Rehnquist explained here, while we certainly do not need nine constitutional law professors on the Court, it is simply not acceptable to have a Justice who is a completely blank slate as far as her experience with the constitution. In fact, this goes to Question C above: with John Roberts, even though we had to take on faith to some extent his philosophy of judging and of the constitution, there was no doubt from his resume and experiences that he had had more than ample time and opportunity to think deeply about those issues, and thus the likelihood is much less that he would find himself adrift (or overwhelmed, like Lewis Powell) once on the Court.

And yes, this ties into the question of ideology. A Justice who is a known quantity, to herself and to the world, is far more likely to be predictable in how she approaches the law, and conservatives have labored too long and too hard to reclaim the judiciary on behalf of pro-democracy judges to entrust the job to a complete cipher.

2. Does she understand the body of constitutional law well enough to anticipate how the drafting of her opinions will affect cases not before the Court?

I've covered this point before. To use a football analogy, I want a Justice who can see the whole field, not a hedgehog who burrows into one narrow issue and loses track of how it fits into or affects the next case. I'm deeply skeptical that Miers has the breadth of understanding to do this.

An example of what I'm talking about is a specific case I've blogged about before here, and which is on this term's docket: FAIR v. Rumsfeld, the Solomon Amendment case. The case will determine whether the lower court properly issued a preliminarily injunction against the enforcement of the policy of denying federal funds to universities that do not allow military recruiters equal access to that provided to civilian employers. Just in this one case, we have issues of the proper standard applied to compelled speech, freedom of association (the Third Circuit claimed that its decision in favor of the law schools was compelled by the decision holding that the Boy Scouts couldn't be forced to hire gay scoutmasters) and the role of academic freedom, which the Court has treated very inconsistently (recall the distinction between the VMI case and the Michigan affirmative action cases); to what extent the War on Terror makes military recruiting a compelling public interest; to what extent the Court should defer to legislative judgments about the needs of military recruiters; and whether Congress can do indirectly through the Spending clause what it might not be able to do directly, as well as whether the particular program is rationally related to the spending at issue. (This is aside from the procedural issues like standing and the standard applied to an appeal from an order denying a preliminary injunction). And that's just one case. We need Justices who can not only resolve a case like this but do so in a way that makes more rather than less sense of the existing constitutional framework of these various doctrines. And this leads us to my third question, the one that is the deal-breaker.

3. Does she have the intellect and writing chops to understand the torrent of complex issues the Court needs to resolve and produce clear opinions that lay down workable rules of law?

Here's what I, as a practicing lawyer, want, as far as qualification and competence: a brilliant or, at least, a clear and incisive legal mind, someone who can grasp the many, varied and often complex issues - constitutional and statutory - that come before the Court. I want someone who can write opinions that are internally coherent, make sense, and reduce rather than multiply litigation over their application. I want a Justice who can consider and reject the best arguments against the Court's ultimate disposition, rather than dodge, sweep aside or leave unsettled alternative arguments for the opposite outcome. I want someone who understands that, because the Court takes but a small fraction of the cases raising a particular legal principle and sometimes takes years to revisit an issue, the Court's job is to settle unsettled questions of law.

Now, when we are discussing Miers' qualifications, it is sometimes objected that critics of Miers are being elitist. But let us make one thing perfectly clear: I'm not looking principally for credentials, I'm looking for skills and a base of substantive knowledge. The credentials are just markers that help us determine how sure we are that the nominee has the skills needed to do the job. As I've discussed before, no one of Miers' credentials, or omissions from her credentials, is the problem; the problem is that taken as a whole, her experiences provide no guarantee that she possesses the necessary intellect and the ability to write with clarity and decisiveness sufficient to give meaningful guidance to litigants and lower courts.

One of the chief lines of argument made by Miers' defenders goes like this, from Thomas Sowell:

The bottom line with any Supreme Court justice is how they vote on the issues before the High Court. It would be nice to have someone with ringing rhetoric and dazzling intellectual firepower. But the bottom line is how they vote. If the President is right about Harriet Miers, she may be the best choice he could make under the circumstances.

Via Nordlinger. Hugh Hewitt sounds the same theme:

Miers is headed for SCOTUS, guaranteeing decades of anguished posts by members of the Bos-Wash Axis of Elitism on why her votes don't count as much as their long ago criticisms.

I understand full well the desire to get the votes we want on our side. But the Supreme Court is about more than just votes. This is not the House of Representatives, where you just shut up and vote; it's about the Court's written opinions. Of course, writing style and ability matters. Because words are the Justices' only weapons.

The Supreme Court decides, if I recall correctly, something like 90 cases a year. Most of those cases, standing alone, don't matter much to the rest of us - who cares if Norma McCorvey couldn't get an abortion, or Jennifer Gratz couldn't get into Michigan Law School? With the exception of the occasional Bush v. Gore, Watergate or Pentagon Papers case, the Court's decisions matter because of the way its opinions govern the thousands of similar cases that don't come before the Court. And the way in which the opinions are written matters very much to how broadly or narrowly the Court's decisions are written, or whether those decisions are persuasive to future Justices. So yes, Miers' writing style is in fact an essential job requirement.

Now, like the questions about Miers' knowledge of constitutional law and her judicial philosophy, my initial inclination was to wait and see. We knew that Miers had been a successful commercial litigator, and many (though not all) successful commercial litigators are indeed brilliant and persuasive writers. So, I've been waiting on the evidence.

I've finally reached the point where I can wait no more. First, we saw that Miers had a fairly thin record (see here and here) of actually litigating, on appeal or to other published dispositions, cases raising the kind of issues that I and other lawyers grapple with on a much more regular basis. I don't care that she hasn't tried a ton of cases, a point Beldar has aptly rebutted, but the notion that Miers has been out there litigating cutting-edge legal issues as her bread-and-butter for years and years seems inconsistent with her record.

And there was also the issue of the near-complete absence of observers who could testify with any kind of superlatives to Miers' intellect and writing. Just look at Beldar's glowing assessment of two of his mentors in practice. I can certainly think of lawyers I've worked with and observed that I'd describe in similar terms. And there was no shortage of people willing to step up and not only say, but say with extensive supporting specific examples, that John Roberts was a man of great intellect and talent, a clear and persuasive advocate. By contrast, Miers' defenders (see also here) always seem to describe her as "competent" or "well-prepared" or "ethical" - all wonderful qualities in a lawyer, but they keep leaving me wondering, is this the best anyone can say? And aren't there hundreds, maybe thousands of practicing lawyers about whom you could much more easily find judges, colleagues and even opposing counsel to speak in far more glowing terms? (Where are Miers' old partners in this? We've hardly heard a peep from anyone who knows her work really well other than Nathan Hecht).

Then, we started to get a glimpse of Miers' actual writings, discussed here. And that was the last straw. Maybe it's just that I have very high standards, but as I've said before, I've encountered successful lawyers before who just weren't clear and persuasive writers, or who were sloppy thinkers and interpreters of the law. And so far, everything we've seen of Miers' writings suggests that the woman simply is not the kind of writer I would consider a good summer associate at my law firm, let alone a Supreme Court Justice. And that can't stand. The Court is too important to the system of justice to let someone in the door who lacks the minimal competence to do the core part of the job: explaining the law.

In short, I can no longer maintain anything but the most hypothetical hope that she would blossom into, say, another Clarence Thomas on the bench. The evidence is now clear that Harriet Miers would be, at best, a good follower on the Court, a person who brings some practical perspectives to some of the issues before the Court, but exacts a price in the quality of the opinions she would write and - as happens with these things, when opinions must meet the approval of all the Justices who join them - perhaps in the quality of opinions she would agree to join as well.

(And for those of you who compare her to Bush: don't. Verbal intelligence and the ability to write persuasively are not essential job requirements of the presidency. They are essential job requirements for the Court. The president can order soldiers into battle, and they will go. When the Court says "jump!" nobody jumps unless it is clear what they are being told to do and how high to go. Written opinions are the only soldiers the Court has at its disposal.)

4. Is Miers too close to Bush to rule against his Administration when - as all governments are wont to do, even good ones - it exceeds its legitimate authority under the Constitution?

5. Will Miers have to recuse herself in too many cases?

I'll skip over these questions because I came to my conclusion based mainly on the evidence of her qualifications for the job. But these are also legitimate issues with Miers, especially #4, and I will no doubt return to them as we go along.

You will note what I have not even discussed here: the politics of the nomination and the consequences of rejecting Miers. Yes, those are important. But Miers simply does not meet the minimal standards for confirmation to the Court. And as a practicing lawyer who will have to live with the consequences of this nominee if she is confirmed, I can't support that, no matter what the judge's party affiliation or her presumed ideology. President Bush should withdraw this nomination. And if he doesn't, the Senate should vote NO.

PS - Another one off the fence against Miers.

UPDATE: To make sure NZ Bear picks this up: I oppose the Miers nomination.

Posted by Baseball Crank at 8:41 AM | Law 2005 | Comments (35) | TrackBack (2)
Comments

Nice piece.

And just think: you just proved yourself a far-superior reasoner than someone nominated to the Supreme Court.

Posted by: Mike at October 21, 2005 11:02 AM

Welcome to the dark side, Crank. In the process, you've disproved the thesis of Malcolm Gladwell's latest book.

Posted by: Attila (Pillage Idiot) at October 21, 2005 11:16 AM

I knew you'd come around...

Seriously, nice piece, and you obviously gave this a lot of thought. Probably more than Bush did. And that's not a joke.

I agree with your reasoning 100%. Without even addressing the politics of the matter, I also decided she shouldn't be approved. Bush may end up nominating a worse (more clearly conservative) person than Miers. In many ways, she might have been the best thing a liberal could hope for—a weak justice with unclear views, who might feel the pull to the left—but the fact is, she's not qualified.

Posted by: Mr Furious at October 21, 2005 12:05 PM

Excellent. I'll link it when I can.

Posted by: Patterico at October 21, 2005 12:12 PM

And to top it off, you title your piece with a reference to James Carville's famous quote...that's adding insult to injury for the Bush Aministrion. But I agree. The Supreme Court is no place for empty platitudes, and that's all we've seen from HM so far.

Posted by: patrick at October 21, 2005 4:53 PM

I'm not sure why you (Crank) have such a hard time understanding the process. Remember Thomas' confirmation hearings? Were you impressed? Was anyone? He came across as a dolt, to put it bluntly. Conservatives have to pretend to be otherwise to get through the process as it has continued to deteriorate.

Where is the condemnation of the Gang of 14, most specifically John McCain? If Miers is dumped, you'll like the next choice even less, as Bush's position on nominee will have been further weakened, and Bush's "conservative" critics on this will be largely responsible. Thanks NRO, Crank, etc.

Posted by: John Salmon at October 21, 2005 5:17 PM

"Bush's position on judicial nominees", that is.

Posted by: John Salmon at October 21, 2005 5:19 PM

Salmon, your comments are really unfair. Crank -- as far as I can tell as a regular reader here for the past few weeks -- has approached this with his conservative credentials intact. Yet when he came to make his final call he left politics at the door and looked only at Miers's abilities and accumen. For you to take a crassly biased stance and criticize him after his thorough, well-thought explanation, is way off-base. WAY off base.

Posted by: Mike at October 21, 2005 5:24 PM

I forgot to mention-the "it's the x, stupid" formulation is trite. It's been trite for years now. Such poor writing must mean you're a lousy lawyer, by your twisted logic. That's the level of analysis you're using here. Well, I guess it's good for site hits, even if you're helping to f*** up the Court.

Posted by: John Salmon at October 21, 2005 5:26 PM

Mike: No, you're wrong. It's the same kind of, yes, elitism we see with Bush's critics. Bush is an awkward speaker sometimes, a Southerner, etc. "I" (that critic) thinks, hell, I'm smarter than he is. I should be President. It's an ego trip.

No one who helps push the Court to the Left should call hemself a conservative. When (I guess it's a fait accompli now) Miers goes, we'll get some milquetoast moderate to forestall a fillibuster. Miers could've been a conservtaive who did exactly that.

Posted by: John Salmon at October 21, 2005 5:30 PM

Did you read Crank's post? Doesn't sound like it.

He refutes (a priori, I might note) three of your points. And as to your assertion that a true conservative wouldn't move the Court to the left no matter what, I would answer that maybe Crank thinks of himself as an American first, and a conservative second. But, you know, that's for him to answer, not for me.

Finally, as I said before, your post is off-base. You're entitled to your opinions, no matter how limited and close-minded they may be. But you are not entitled (unless you want to be called onto the carpet for doing so) to sling baseless insults like "bad writer," "bad lawyer," or practicioner of "bad logic" when the foundations of those views don't exist.

Read the post, Salmon. It's well-written & well-reasoned. Regardless of my opinions about Crank's politics, as a fellow attorney I can assure you that no one who writes & reasons that well can possibly be a "bad lawyer."

Posted by: Mike at October 21, 2005 5:44 PM

Remember Thomas' confirmation hearings? Were you impressed?

I thought Thomas came off pretty well, but then I was 20 years old at the time and had far fewer sources of information. Certainly when I met him in person in the spring of 1992 I found him a very impressive guy, witty and expansive. Anyway, do conservatives really need to pretend? I think the Senate is different than it was in 1991. There's a rumor going around that the Republicans actually have a majority, and would still have a majority even if Chaffee, Specter and the two Maine-ers all voted "no". Given that all of the other GOP senators depend to some extent on rallying the conservative base and the party loyalists to get elected, I think you can certainly get 50 or 51 votes for a solid conservative, and that's before you start pressuring red-state Dems up for re-election.

Where is the condemnation of the Gang of 14, most specifically John McCain?

Was't this post long enough? I'll get to the political fallout another day. If the nominee is just not up to the job, at some point you have to put partisanship aside.

When (I guess it's a fait accompli now) Miers goes, we'll get some milquetoast moderate to forestall a fillibuster.

You assume this is Bush's only choice. What if Miers goes down on the "qualifications" issue and Bush nominates a conservative of unchallangeable qualifications? There's only one way to find out, isn't there?

Posted by: The Crank at October 21, 2005 5:49 PM

Elitism exists on the right and the left, Salmon...how many people used the term "Bubba" for Clinton not as a term of endearment, and laughed at his family background?

Regardless, I'm glad to see Crank oppose Miers on her qualifications...I really didn't think anti-progressives had it in them to put qualifications over results...precisely because of Clarence Thomas, who is the worst justice ever on the court. As much as I disagree with Scalia, and did with Rehnquist, their logic is understandable to a degree and largely intellectually consistent, particularly with a respect for stare decisis, which I think is critical in a Common Law system. Originalist theory like those of Thomas are about as practical as Marxist theories. If you were God, you might make them work, but you ain't.

Miers just ain't qualified for the post...Hire her for a class action defense suit if you need local counsel, but she does not have the "Right Stuff".

Posted by: AstrosFan at October 21, 2005 5:54 PM

Read my post, Mike. I'm arguing that his basis for assuming Miers is a bad lawyer is insufficient. How could someone with her track record not be capable of doing this job?
I am trying to figure out what the motive of the anti-Miers crowd is. I see it as I said, as lilkely driven by the same elitism we see in Bush's critics. Otherwise, why undecut the President and deliver a worse nominee? Why willfully ignore what the process has become? Why ignore the fact that pretty writers like Scalia often don't move votes? Why ignore personality issues? The whole notiuon that this isn't really about how you vote on Roe but whether you can write elegant opinions is the height of illogic. One needn't be a lawyer to realize that. Thank God I'm not one and don't think like one, if what the anti-Miers crowd produces is the result.

Posted by: John Salmon at October 21, 2005 5:58 PM

Crank: Uhhh...the Dems can and will filibuster an "unacceptable" nominee. You're still not dealing the process as it is today.

Posted by: John Salmon at October 21, 2005 6:04 PM

Although Thomas and I are miles apart philosophically, he writes great opinions. His logic and consistency are better -- much better -- than either Scalia or Rehnquist. Scalia is a fire-breathing originalist/textualist when it fits his desired holdings. But I've actually seen him look at legislative history, a technique he mocked like a snarky schoolboy when Brennen engaged in it. Rehnquist wrote concisely, I'll give him that. But his reasoning was often of the middling variety -- solid, but not air tight.

Thomas, however, is logically sharp and writes in a wonderfully pointed style: lean, mean and strong. I really enjoy reading his opinions & dissents even I though I rarely agree with his holdings.

To say he's the worst ever is absurd. C'mon, Astros Fan, hold up the level of discourse on our side, too. Don't yield the high ground to clowns like Salmon by falling into the same bad habits of hyperbole and naked partisanship

Posted by: Mike at October 21, 2005 6:04 PM

Salmon, you're gonna accuse me of being an elitist and there's nothing I can do to change your mind: Supreme Court opinions do need to be well-written and well-reasoned so they can guide other judges and other lawyers. If that bothers you, maybe it should. Lawyers have too much dominance over the "legal world," in my opinion, paradoxical though it might sound. It's a monopoly upheld through a quasi-governmental guild called the Bar.

But until the system is changed (read: Never), America needs competent reasons/writers at the top. Otherwise the system gets muddled and you have not 9 judges legislating from the bench, but hundreds, in every jurisdiction . . . because they have no idea what the law actually says.

Posted by: Mike at October 21, 2005 6:10 PM

Mike: I confess to being a partisan. I want a conservative nominee. I assume you want a lefty one. I also confess to some hyperbole, because I simply don't understand what drives conservatives who oppose Miers. So I speculate and come up with some unpleasant answers. I remain convinced that "judging" Justices and judicial nominees on their literary value, as you and the blog author are doing, is the silly. Is that hyperbolic enough for you?

Posted by: John Salmon at October 21, 2005 6:12 PM

Thomas is worst in my lifetime, for sure, and his "me too" attitude for the longest time on the court was just plain embarrassing. He's gotten better over time, but all he does is stick to his script...but then not stick to it in cases like Bush v. Gore.

Posted by: AstrosFan at October 21, 2005 6:31 PM

"It's the same kind of, yes, elitism we see with Bush's critics. Bush is an awkward speaker sometimes, a Southerner, etc. "I" (that critic) thinks, hell, I'm smarter than he is"

I gotta take issue with this. If you've ever seen a debate between Bush and whatshername, when he was running for Texas Governor, you'd see that he used to be quite an articulate speaker with only a hint of his current lazy drawl. Something happened between then and now. I dunno if the cocaine or the alcohol finally caught up with his brain or what, but the Bush of today is a far cry from Texas Governor Bush. When you look at the differences, its not elitism anymore.

Posted by: kevin at October 21, 2005 7:12 PM

"I assume you want a lefty one"

Salmon:

1. Not really. That disgraceful opinion in the Connecticut eminent domain case last summer made me ill, for instance. I respect private property & the right bear arms & the right of free speech & the right not to have cops barge into my home without reason (all those rights are guaranteed by those pesky ten amendments. Check em out sometime).

2. Bush won in 2004. He gets to nominate whomever he chooses. He's not nominating Shira Sheindlein, that's for sure. I accept that.

3. I want a competent justice. A brilliant justice. A great justice. I'm fine with Roberts. As I've said in this forum, if I had my druthers I'd tab Easterbrook (considered to be quite conservative) or Posner (a moderate whose Economics-driven theories are often very pro-business). Why? They're both brilliant, both great writers, both great judges. Even hard-left liberals admit as much.

You've admitted that as a conservative you want your guy (or gal, as it may be). Ok, I can respect that, even if I don't agree. But let's not take an unfounded leap and declare Harriet to be qualified, while smearing those who disagree as elitist. Has it occurred to you that one can be conservative and still adhere to conservative principals rather than conservative "rules of behavior"? I hate to break it to you, man, but many conservatives I know are embarrassed by her. Nothing more.

Posted by: Mike at October 21, 2005 7:34 PM

Notice how the arguments against Miers mirror what lefties say about Bush-it doesn’t matter what you accomplish, only how well you can craft a sentence. It’s distressing that many conservatives can’t see the irony.

Listen-a man I know very well has has had an outstanding career in medicine, including a position as chief of surgery at a major hospital in Philadelphia. Now, if you talk to him he rarely says anything that would suggest either the depth of his achievements or how incredibly bright he is. Should I judge his intellect on his skills as a conversationalist, or on what he’s done in his field?

Mike, I don't agree that brain power is the most important requirement for any job. Remember the line about FDR- Third rate mind, first class temperament. Now, that probably understates Roosevelt's capacities-he was a bright guy. But brighter men, true intellectuals, likely would've been far less successful Presidents. As I've stated elsewhere here, how many votes does Scalia swing? Personality matters. Integrity and character matter. The standards you and the Crank are using here are far too narrow. It's legalistic analysis which is fine for evaluating say, Griswold, but inadequte for evaluating people.

Posted by: John Salmon at October 21, 2005 7:53 PM

"As I've stated elsewhere here, how many votes does Scalia swing? Personality matters. Integrity and character matter."

Ok. So you've changed the argument. You're acknowledging that she falls well short of the usual intellectual standards. Fine.

So here goes: What evidence can you present to us indicating that Harriet Miers is the best candidate in the United States to influence eight extremely intelligent, experienced justices to vote "the right way"?

Or are you really saying that she'll vote exactly as George tells her to? In that case, why not nominate Laura? Or better yet, Jenna?

Posted by: Mike at October 21, 2005 8:19 PM

1. Not sure if I ever referred jokingly to Clinton as "Bubba" but I always thought that was dumb - frankly, a real "Bubba" doesn't have degrees from Yale and Oxford and a $200 haircut.

2. Thomas is by no means a "me too" - this term he voted 68% of the time with Scalia, and four or five other pairs of Justices voted together more often (including Souter and Breyer, I believe). Still, it's not unusual for a new Justice to take a little time to find an independent voice.

3. How could someone with her track record not be capable of doing this job

Trust me, I've seen plenty of lawyers who made a good living in the business without being Supreme Court material.

4. I love Frank Easterbrook.

5. Notice how the arguments against Miers mirror what lefties say about Bush-it doesn’t matter what you accomplish, only how well you can craft a sentence.

You're ignoring my point. The written word is how Justices get things done. It's not at all like the presidency. Not one little bit. You know what? Bush would be a lousy Supreme Court Justice. I don't think less of him as a president for that. Taft was a very good Chief Justice, and a lousy president. It takes different skills.

Posted by: The Crank at October 21, 2005 9:52 PM

Two more things, John:

1. No one who helps push the Court to the Left should call hemself a conservative.

Look, I want the Court to be more conservative; it's my top domestic priority. That's why I care so much about this issue. Don't you think the Wall Street Journal, the National Review, the Weekly Standard, Rush Limbaugh, Ann Coulter, Laura Ingraham and Robert Bork want the Court to be more conservative? What kind of conservative movement is left if you throw them all out of it? All that you're left with is Republican legislators voting themselves pork and having no ideas. We've spent years mocking the Dems for cutting themselves off from ideas - we shouldn't do the same.

2. As to personalities, Justices have huge intellectual egos. If they don't respect Miers, they won't follow her.

Posted by: The Crank at October 21, 2005 9:57 PM

Trackback: Bloggers on the Miers Nomination

The endorsements and rejections are firm positions on the record advocating either confirmation or rejection respectively. These are not mere debating positions.

Posted by: Paul Deignan at October 21, 2005 10:23 PM

Oh, and don't give me any of this garbage about not liking Miers because she's a Southerner. I mean, I voted for Bush, twice. Clarence Thomas is from Georgia. Edith Jones and Michael Luttig are from Texas, too. There are plenty of fine Southerners available.

Posted by: Crank at October 21, 2005 11:27 PM

I'll repeat something that I've said before:

The thing that really disturbs me about the Miers nomination is the willful embrace of know-nothing populism by her defenders like Hugh Hewitt. In calling her detractors "elitist," they conflate the "elitism" of achievement, which is good, with the really negative connotation of the term, which refers to the -elitism- of association, cf. "noble" birth, nepotism, cronyism, etc.

It is the Miers defenders who are the real "elitists" in the second negative sense that they falsly impute to their opponents, since they contend that Bush by virtue of his position has the right to unilaterally appoint anyone he associates with to any post he wants without criticism.

Abraham Lincoln was a second-grade dropout, but his speeches and writings are models of forensic excellence and clear, rational exposition. He also managed to be one of the top corporation lawyer in his state.

Miers, on the other hand, is a sycophantic crony with a prose style that would shame Dilbert's (TM) Pointy-Haired Boss. The notion that she's some fountain of cracker-barrel wisdom is directly refuted by just about every piece of publicly-available information about her.

Posted by: Ernest Brown at October 22, 2005 1:01 AM

Mike:

You say: "But I've actually seen him look at legislative history, a technique he mocked like a snarky schoolboy when Brenn[a]n engaged in it."

Any proof of that?

Posted by: Patterico at October 22, 2005 2:12 AM

Crank, this is a well-written, well-argued, and very thoughtful piece of work. I give you very high marks for a conscious effort to be fair, and for the way you've integrated your personal knowledge from your own legal training and practice into your framework for viewing the nomination. And I thank you for the generous links to my own blog as well.

I would like to respond to one specific mention that you made of something I wrote, that being my description of my two role models, Dick Miller and John Jeffers. You're right that I used gushing superlatives, and I did so without hesitation because I had a chance to work closely with both men (especially John, whose genius was less obvious and less widely appreciated than Dick's in some circles), and I know they merit the highest praise I can summon the vocabulary to offer. John's tragic death, at an age just younger than I am now, still chokes me up.

But part of the reason I told that long anecdote was to contrast the difference between Dick, who was not only a superstar trial lawyer, but widely recognized as one, and John, who was also a superstar trial lawyer, but to this day has never gotten the credit for it that he deserves. Ask most lawyers who "won the Pennzoil case" and they'll say, "Joe Jamail." No offense to Joe, because he did contribute a lot to the trial, but without John Jeffers' genius there never would have been a trial, and its result could have been lost in any of a half dozen different ways. And there are only a relatively small number of lawyers (and some staff) — more than a few dozens, but certainly not many hundreds — who appreciated John Jeffers properly.

I can't sing Harriet Miers' praises as a trial lawyer in those same kind of superlatives because I lack the personal knowledge necessary to do so credibly or sincerely. I've never watched her make a closing argument. I've never listened to her guide a client through the upsides and downsides of various alternatives. You say, Crank, "Well where's the protege of Harriet Miers, the young lawyer who's raving about her?" And my answer is, "I don't know, but that doesn't mean there's not one who hasn't spoken out yet." But there is a longtime client who's given her about the most glowing endorsement any client ever could — and no, it's not a coincidence that he's the POTUS.

But let's say you're right. Let's hypothesize that she was merely solid, competent, and diligent as a business litigator. My point is, while that's probably not enough by itself to make her worthy for a seat on the Supreme Court, that's ample, and more than ample, for her to be able to bring to the Court the perspectives that a business litigator can bring. More than that isn't necessary, because she's not going to be trying cases against Ruth Bader Ginsburg or David Souter.

And her experience as a business litigator, while a very important part of the package, is far from the total package. When you look at the rest of her record, there's this incredible history of service — service to her family and her church; to her partners, in managing their business; to her clients, paying and pro bono; to her profession, through her local, state, and national bar organizations; to her city, through its city council; and then to the people of Texas and the United States, through her advice to and representation of that state's governor and that nation's President.

But the final part of the package is absolutely unique to her. And it comes back to her number one fan, in whose hands the Constitution and the American people have collaborated to put the nomination power. She's surely a good enough professional and person, but she's the one person who, rightly or wrongly, has this President's entire trust. For a Luttig or a Jones or a McConnell, he has to rely on thin first impressions and someone else vouching for them. And this seat is too important to him; he's going to go with who he knows.

To your credit, you haven't screamed CRONY! nor cried havoc and let loose the dogs of mockery and tastelessness. But I think your analysis is too much like that of a client, or perhaps a general counsel, trying to hire the very best litigator for your next big case, instead of as a citizen trying to assess the nominee whom the President has the constitutional power and right to pick. No, of course you don't have to agree with him — this is America! But I hope you'll continue to be respectful of and to those who've reached the contrary conclusion to your own, and I know you'll make a conscious effort to keep your mind open to new information, such as that which may come from the confirmation hearings, that might prompt you to reconsider.

Posted by: Beldar at October 22, 2005 4:59 AM

Beldar, that's a nice missive. Yet for all that you've said, it still comes down to one point: you argue that Miers need not be a great lawyer or possess a great legal mind. As long as she's good enough, then it's aok, because the Prez has the right to pick whomever he chooses. That's true, but you and all others who "remain open-minded about Miers" seem to skirt endlessly around the evidence of her (relative) incompetence & lack of qualifications, always coming back to some variation on "if it's good enough for Bush, it's good enough for me." Well, that's not good enough for me, it wasn't good enough for Alexander Hamilton (who ensured the involvement the elitist, non-elected Senate in the process), it's not good enough for many, many conservatives, and quite possibly it won't be good enough for the 2005 Senate.

Patterico, I'm not gonna be able to offer the type of "proof" you're looking for. I read it in a case back in Law School. Don't recall what case, but I distictly remember writing "Scalia going to the leg. hist.???" in the margins. It was, I believe, Monsanto, an anti-trust case from the late 80's (but I may be wrong here) in which he tried to attack the entire post-Chicago Board of Trade school of Sherman Act, Section 1 jurisprudence, arguing that Per Se vs. Rule of Reason analysis was invented by Brandeis, et al, and had no statutory basis. That's surely true, as a cursory read of the act shows. But -- and again, I haven't read it in years and I have no access to Westlaw right now -- I remember him paradoxically going to the legislative history to show that not only had the act's framers not included any such language, they did not foresee any such analyses.

I know my shaky memory falls short of your proof, but it's the best I can do at this point. It may have been another case, in a wholly distinct area of the law. Justice Scalia also talks often of the "Framers Intent" as a basis of his constitutional jurisprudence, as opposed to sticking to the constitution's text. Again, I can't come up with an example off the top of my head (his dissent in the sodomy case?), but I've seen him do it more than once. I'm sure you have too. Nonetheless, I accept your dismissal of my point if that's what you wish.

Posted by: Mike at October 22, 2005 8:19 AM

Beldar - I think Mike hits the difference between us on the head. I too value Miers' experience, but to me, if she doesn't bring a great legal mind to the job, that's a deal-breaker.

As to Scalia, he's been very consistent on the legislative history point for a very long time. But he'd be the first to admit that even he isn't always 100% consistent in his approach - who on the Court is? Scalia and Thomas are distinguished by their determined striving for consistency that many other Justices neglect entirely.

Posted by: The Crank at October 22, 2005 10:45 AM

Crank,

It's good to see your study of Bill James put to such fine use. Miers's supporters are like those individuals who decry statistical analysis in favor of "intangibles," neglecting the fact that they're committing a false dilemma fallacy and that the former is necessary to put the latter into context.

All the service aspects that Beldar mentions are nice, but only good as "tiebreakers" between equally qualified candidates. Miers is so woefully inept in both her legal reasoning and writing skills that only a Pickwickian definition of "qualified" applies to her.

Posted by: Ernest Brown at October 22, 2005 5:37 PM

"No one who helps push the Court to the Left should call himself a conservative." You haven't rebutted this argument, Crank Man. What are the chances that a reliable conservative will emerge after Miers is dumped, assuming this happens? You haven't dealt with my arguments about the f***-up political process that Bush has to deal with to nominate someone. Instead, you've strung together a few sentences that supposedly prove you're a better lawyer than Miers. Maybe you are. So what?

Posted by: John Salmon at October 23, 2005 1:24 AM

"No one who helps push the Court to the Left should call himself a conservative." You haven't rebutted this argument, Crank Man.

Maybe he hasn't rebutted it because, frankly, it's such a stupid argument that it shouldn't be dignified with a response.

1) The fact that so many staunch conservatives are opposing the Miers nomination is all the rebuttal it needs. Are the folks over at NRO not conservative? Is George Will or Charles Krauthammer? Or the folks over at Volokh who have expressed skepticism? Or Robert Bork? In fact, pretty much the only people who aren't strongly criticising the nomination are those who aren't conservative -- that is, (a) Democrats and (b) partisan Republicans who care about party rather than ideology.

2) Why would Bush have a harder time getting a reliable -- but qualified -- conservative through after Miers? Roberts sailed through with little trouble. Is the composition of the Senate going to change in four weeks?

3) Why do you think Miers is such a reliable conservative that she's worth fighting for? There's precious little evidence of her judicial philosophy, which is a big part of the problem.

4) The fact that you think this is "really about how you vote on Roe" is the problem.

Posted by: David Nieporent at October 23, 2005 3:56 AM
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