Snuffing The Gangs

I remain ambivalent about the death penalty on a number of levels, not least the question of under what circumstances a Catholic can support it. (On the other hand, as I’ve said before, the more I listen to opponents of the death penalty, the more I tend to lean towards supporting it). In particular, I’m not sure the death penalty is worth the economic cost, nor that it can be applied consistently enough in the case of ordinary homicides – armed robberies, individual feuds, domestic violence – to make the necessary deterrent effect worth the varied costs of the penalty. Anyway, more on that another day.
Because the execution of Stanley “Tookie” Williams seems to me to fall on the pro-execution side of an important line. What is significant about Williams’ case is that he was responsible for being one of the founders of the vicious street gang the Crips; Williams set in motion an organization that specializes in preying on the weak and the vulnerable and corrupting the young and the impressionable. The case for the death penalty is at its strongest in dealing with organized crime – whether terrorists, street gangs, the KKK, the Mafia or the drug cartels – both because civilized society must use the means at its disposal to defend itself, and because the goal of deterrence is much more directly served when directed not at the general criminal population but at an organization whose members may know the defendant and who have reason to expect that they could be next.

Same Sex Marriage and Children

Last Thursday, the New York Appellate Division, First Department – the intermediate appellate court in Manhattan – upheld, against constitutional challenge, the New York Domestic Relations Law’s extension of marriage only to opposite-sex couples. (H/T: Althouse). In so doing, it touched on some arguments on the issue that I’ve been thinking about for some time now.
In particular, our democratic polity has a rational basis for preferentially allocating scarce resources to benefit opposite-sex rather than same-sex married couples to promote two vital interests: promoting the population growth needed to sustain a healthy society and discouraging illegitimacy and abortion.

Continue reading Same Sex Marriage and Children

Time for Some ADA Litigation

Glenn Reynolds quotes the Washington Post:

Mental health practitioners say they regularly confront extreme forms of racism, homophobia and other prejudice in the course of therapy, and that some patients are disabled by these beliefs. As doctors increasingly weigh the effects of race and culture on mental illness, some are asking whether pathological bias ought to be an official psychiatric diagnosis.

Can lawsuits claiming that racists are a protected class entitled to sue under the Americans with Disabilities Act be far behind?
UPDATE: This is as good a time as any to recount my all-time favorite “ADA run amok” story: after the $5 billion Exxon Valdez verdict, which was supposed to send the message to Exxon not to hire drunks as ship captains . . . the EEOC sued Exxon for, essentially, having a policy of not hiring drunks as ship captains. The Fifth Circuit ruled in Exxon’s favor after something like seven years of litigation, but its ruling merely set the case for further proceedings, and I’m not sure how it eventually came out. But the point was made: Exxon was damned if it did, and damned if it didn’t.

Not Unusual

Supreme Court correspondent Tony Mauro pens an odd dispatch (reg. req.) on John Roberts’ first opinion as Chief Justice, a unanimous opinion for the Court in Martin v. Franklin Capital Corp., No. 04-1140 (U.S. Dec. 7, 2005):

The case, which interpreted the statute that governs the removal and remand of civil cases between state and federal courts, did not lend itself to soaring constitutional rhetoric, and it got none from the chief justice.
Instead it was a straightforward eight-and-a-half-page ruling with few flourishes and only one footnote. The Court ruled that when a case is removed to federal court but then sent back to state court, attorney fees should not be awarded when the party who sought removal had an objectively reasonable basis for doing so.
It is customary at the Court for a justice’s first opinion to come in a case that draws no dissents. But Kenneth Geller of Mayer, Brown, Rowe & Maw, a longtime connoisseur of Supreme Court opinions, noted that Chief Justice Roberts “could have assigned himself anything. It shows some humility that he assigned himself such an unimportant case.”

Mauro is right that the opinions issued this early in the term are usually unanimous dispositions of cases raising no major constitutional issues. But actually, I found this opinion to be both important and eloquent. Important, because successful remand motions are a fairly common event – maybe not to the average citizen, but to practicing lawyers – and thus the standard for awards of attorneys fees in that situation is a matter of practical significance. The need for the Supreme Court to revisit this issue being unlikely, this opinion will probably still be routinely cited a hundred years from now.
And eloquent, in Roberts’ treatment of how courts deal with matters that are within the discretion of the district judge, in a passage that is likely to be widely cited outside of its narrow context:

The fact that an award of fees under Sec. 1447(c) is left to the district court’s discretion, with no heavy congressional thumb on either side of the scales, does not mean that no legal standard governs that discretion. We have it on good authority that “a motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982). For these reasons, we have often limited courts’ discretion to award fees despite the absence of express legislative restrictions. . .

(As some other commentators noted, Roberts managed to slip in citations to both judges he clerked for, then-Justice Rehnquist and legendary Second Circuit Judge Henry Friendly).

The Limits of Press Freedom

This decision of the US District Court in DC, Friday, reaffirming a prior decision, is a good illsutration of the same principle that underlay the courts’ refusal to allow press freedom to trump the needs of Patrick Fitzgerald’s investigation in the Plame case. The court here allowed a subpoena to a financial publisher (McGraw-Hill) who published market prices, so as to permit an investigation of an energy company accused of false reporting of those prices. The take-home lesson is that when the media is used as a necessary conduit in an alleged criminal act, it can’t hide behind the First Amendment to avoid giving evidence.

Solomon Sitting Pretty

SCOTUSBlog thinks yesterday’s argument in FAIR v. Rumsfeld, the Solomon Amendment case, went very well for the US. Justice Scalia is pushing the idea that Congress is due particular deference on the subject of military recruiting due to its enumerated power to “to raise and support armies” under Article I.
David Bernstein had a fine point last week on why law schools should rethink military boycotts, during wartime, as a way of protesting policies adopted by Congress and the President:

A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military’s policies (as Truman eventually did in 1948)? . . . when people criticized Joe Louis for recruiting blacks to join the then-segregated military during WWII, he responded . . . “[t]here may be a whole lot wrong with America, but there’s nothing that Hitler can fix.”

UPDATE: Dahlia Lithwick has a lengthier and more colorful account of the argument, but is equally convinced that the law schools are going to lose.


Charges that Tom DeLay conspired to violate the Texas campaign finance statute are dismissed on the grounds that what he allegedly did wasn’t a crime at the time, and Kos, displaying his usual grasp of factual and legal nuances, calls this “a technicality,” pronouncing – in a phrase that would make George Orwell cringe – that this mere technicality is “that what is illegal now wasn’t illegal under state law when DeLay committed his crimes.”
Um, if they weren’t illegal then, they weren’t crimes. Now, some rules of criminal procedure, even ones with obvious constitutional roots, are technicalities, in the sense that they have nothing to do with guilt or innocence. The notion that you can’t be prosecuted for something that wasn’t against the law when you did it is not one of them, least of all in an area as heavily regulated as campaign finance law.
UPDATE: The decision dismissing the conspiracy indictment and upholding DeLay’s indictment on money laundering charges is here. The court’s decision seems persuasive on both grounds, that conspiracy to violate the Election Code was not a crime in 2002, and that the term “funds” in the money laundering statute can include funds paid by check.
The nutshell of what charge remains against DeLay is described thus:

If the state can prove that funds were obtained from corporate contributors by these defendants with the express intent of converting those funds to the use of individual candidates, or if the state can prove that these defendants entered into an agreement to convert monies already on hand, though originally received for lawful purposes, to that use by sending the money to the Republican National State Elections Committee with an agreement that funds of the same amount would then be made available by that committee to individual candidates for Texas political office, and can prove that funds in the same amount were in fact contributed to individual candidates by the Republican National State Elections Committee, then they will have established that money was laundered. The money would have become “dirty money” at the point it began to be held with the prohibited intent.

Correct me if I’m wrong, but on my understanding of the evidence, this framing of the issues is very, very bad news for DeLay, particularly the latter standard – while it may well be that DeLay wasn’t particularly involved in the specifics of receipt and routing of particular funds, it seems pretty clear that he’s the kind of guy who would be intensely involved in controlling where and to which candidates funds would end up being disbursed.

Tort Reform: The Market Responds

A Texas plaintiffs’ firm specializing in silica and asbestos litigation lays off 8 attorneys and closes an office in response to a tort reform bill signed by Texas Governor Rick Perry that separates claims of injured from non-injured plaintiffs. The firm’s managing partner says, “[w]e are not going to handle as many cases as we used to handle because of the reforms.” (Reg. Req.)

A Little Diversity

The New York Observer notes Harvard Law School’s tentative steps towards faculty diversity with the hiring of three right-leaning professors among 20 recent hires:

[R]ecent hires have . . . added to the conservatives’ ranks. There is John Manning, 44, an expert on the separation of powers and the structure of government, who advocates for a strict reading of the U.S. Constitution, and 43-year-old Jack Goldsmith, an international-law expert known for questioning the efficacy of the International Criminal Court.
Both are highly regarded scholars and former Republican administration officials (Bush I for Manning, Bush II for Goldsmith). . .
In addition to Messrs. Manning and Goldsmith, joining next year is Adrian Vermeule, a constitutional, statutory-interpretation and administrative-law specialist who takes a social-science approach, reading empirical research and looking for counterintuitive solutions. Mr. Vermeule is currently at the University of Chicago, where he has won various teaching awards. He has written about constitutional issues in the context of national security, arguing that restricting some liberties isn’t at odds with the freedoms Americans enjoy, that people overreact in what he calls “libertarian panics.” He has also argued for the death penalty on “pro-life grounds,” citing studies that show it deters would-be killers. Yet he has also criticized some of what others see as the court’s conservative activism.

It’s a start. Link via Bashman.

Dillon Stewart, Hero

An NYPD hero:

Stewart, in his last heroic moments, ignored the bullet that had pierced his heart and continued pursuit of the fleeing suspect yesterday – helping nail his alleged killer.
Not realizing he had been shot, Stewart, 35, continued to gun his unmarked police car through the streets of Flatbush, in close pursuit of the armed driver, speeding away in the 1990 Infiniti.


After Stewart was shot, he still managed to tail Cameron to a garage, where police opened fire. Only then did Stewart realize he had been struck, police said.
“I got shot,” a stunned Stewart told his partner as he clutched the bleeding wound under his left arm.
Stewart’s fellow cops from Brooklyn’s 70th Precinct bundled the wounded but conscious officer into the backseat of his own bullet-riddled car and sped him to Kings County Hospital, where he died despite valiant efforts to save him.


Judge Graham

I did not know that Lindsey Graham is also an appeals judge (registration req.):

Sen. Lindsey Graham of South Carolina is also Judge Graham on a federal military court — an arrangement that has drawn the Republican into a battle over the separation of powers.
Can Graham write laws as a senator and then interpret them as a military reserve judge? Does his job as a partisan politician prevent him from being impartial on the bench?
Those were the questions raised in a hearing Tuesday, when attorneys for Airman 1st Class Charles Lane argued that Lane was denied a proper appellate review of a cocaine conviction because Graham — assigned two years ago as a reserve judge — helped hear the appeal. It’s a contention the government denies.


The court Graham sits on is a lower appellate court — the Air Force Court of Criminal Appeals at Bolling Air Force Base.
Graham has served in the military for more than two decades as an Air Force judge, prosecutor and defense lawyer, making him a recognized expert on military issues on Capitol Hill.


He served on active duty in Germany in the 1980s, then in the South Carolina Air National Guard before transferring to the Reserves in the 1990s. He was elected to the Senate in 2002 after three terms in the House and became a Reserve Appellate Judge in October 2003.


The reservist issue is not a new one.
A private group sued the government to challenge the practice of lawmakers serving as reservists during the 1970s, when more than 100 were doing so, said Spitzer.
Plaintiffs “felt Congress was so full of military officers that it created a conflict … in favor of the military,” he said of the case, which succeeded in the lower court but was reversed on appeal on the grounds the group didn’t have standing to file the suit.


According to this AP report (via ConfirmThem), the schedule for the hearings on Judge Alito worked out by Arlen Specter with the Democrats calls for hearings beginning January 9, a committee vote on January 17, and a vote of the full Senate on Friday, January 20.
Which means that the final vote will likely come either that day or the next business day – Monday, January 23. Sunday, January 22, of course, is the 33d anniversary of Roe v. Wade. Coincidence? Even if it’s not, you can be sure that the timing will ratchet up the tension over the vote.

Ninth Circuit Roulette

Ace notes another bizarre decision, which would seem ripe for certiorari and reversal, discussed here – the Ninth Circuit struck down a California statute making it a crime to file a false complaint against a police officer:

The Ninth Circuit’s rationale . . . is that because the statute is silent on penalizing false statements in support of the police, false allegations of abuse are being discriminated against on viewpoint grounds. . .
The 9th Circuit notes – for the purpose of discarding – that false statements against public officials are not protected by the First Amendment. The Court’s problem in this case was the under-inclusiveness of the regulation – regulating false statements by the complainant while not prohibiting same by parties taking the opposite side. However, it is noted in the opinion itself that under-inclusiveness is also not barred by the First Amendment. (And since the stated problem the legislation was intended to address was an increase in false abuse allegations – the Court could have read the legislation as being narrowly tailored to address a specific problem rather than a sinister attempt to criminalize criticism of the government . . . )

The case for certiorari is strengthened by the fact that the Ninth Circuit, in so holding, expressly overruled the California Supreme Court, which had held that the statute was constititional. The Ninth Circuit’s opinion is here (in PDF form). Frankly, having just skimmed the opinion, I’m not even sure why the First Amendment is implicated here: the complainant is free to make the false charge of police brutality, but is penalized only for making that false charge in the process of filing a complaint that triggers a legal process. The court’s reasoning unintentionally makes this point crystal clear:

An illustration drawn from this case may be helpful. At Chaker’s criminal trial, the witness who observed Chaker’s arrest testified that she saw no signs of excessive force during Chaker’s arrest. However, had the witness made this statement to the investigator charged with investigating Chaker’s complaint, knowing the statement to be false, the witness would not have faced criminal sanction under section 148.6. Similarly, had Officer Bradberry made a knowingly false statement to the investigator charged with investigating Chaker’s complaint, Officer Bradberry would not have faced criminal sanction under section 148.6. It is only Chaker, who filed a complaint of peace officer misconduct complaining that Officer Bradberry mistreated him in the course of an arrest, who faced criminal liability under section 148.6 for his knowing falsehood.


[S]ection 148.6 regulates an unprotected category of speech, but singles out certain speech within that category for special opprobrium based on the speaker’s viewpoint. Only knowingly false speech critical of peace officer conduct is subject to prosecution under section 148.6. Knowingly false speech supportive of peace officer conduct is not similarly subject to prosecution. . .
At oral argument, the state and amicus curiae in support of the state offered three statutes which they believe regulate knowingly false speech of peace officers during the course of a misconduct investigation: California Penal Code sections 118.1, 132, and 134. They argued that these statutes put peace officers on equal footing with complainants in the course of a complaint investigation. Section 118.1, however, only prohibits an officer from filing a crime report if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false. . . . We are aware of no authority, nor do the parties direct us to any, holding that a knowingly false statement made by an officer in the course of a misconduct investigation falls within the prohibition of filing a false crime report under section 118.1.


We note that any impermissible viewpoint-based bias present in the complaint investigation process is easily cured: California can make all parties to an investigation of peace officer misconduct subject to sanction for knowingly making false statements. Otherwise, the selective sanction imposed by section 148.6 is impermissibly viewpoint-based.

As you can see, each of the examples cited by the court involves a participant in a pre-existing investigation, rather than the person whose statements caused the state to initiate the investigation in the first place. Thus, the complainant is simply not similarly situated to the other parties, none of whom has triggered the machinery of the state by speaking.

Alito at Trial

Turns out that Samuel Alito has one thing in common with Harriet Miers that sets him apart from the rest of the current Supreme Court: he’s actually tried cases. He spent four years as an Assistant US Attorney, and even tried at least one high-profile terrorism trial during his later tenure as US Attorney:

As U.S. attorney in New Jersey, a job that normally involves sending underlings into the courtroom, Alito personally prosecuted the 1988 terrorism trial of Yu Kikumura, going head to head with the noted defense lawyer, the late William M. Kunstler. Kikumura was convicted of driving with homemade bombs on the New Jersey Turnpike, intending to blow up the Navy recruiting office in Manhattan, and is serving 22 years.

Via Bashman. And William Kunstler was the sort of dogged, unpredictable and media-savvy advocate that it could be a real challenge to try a case against. I’m sure President Bush found it reassuring to have a nominee who has actually locked up a terrorist.

Smearing Judge Alito

Given the difficulty of persuading the American people that they would be justified in filibustering Samuel Alito based solely on his judicial philosophy, it’s not surprising that some on the Left are looking to smear him instead with bogus ethical charges. Witness this latest attempt, from AmericaBlog:

Another ethically challenged Bush appointee according to the Washington Post:

Three years ago Alito drew conflict-of-interest accusations after he upheld a lower court’s dismissal of a lawsuit against the Vanguard Group. Alito had hundreds of thousands of dollars invested with the mutual fund company at the time. He denied doing anything improper but recused himself from further involvement in the case.

Hundreds of thousands of dollars and it didn’t raise ethical concerns for him. So how much did he have to have invested with Vanguard before it became a conflict-of-interest? This should get an enormous amount of scrutiny.

Via the Blogometer. ThinkProgress takes the same tack:

Supreme Court nominee Samuel J. Alito and Justice Antonin Scalia share more than just ideology; they also share a resistance to removing themselves from cases where they have a conflict of interest.
In 2002, Alito dismissed a case in favor of a company where he was heavily invested [Philadelphia Inquirer, 12/15/03]:

Judge Samuel A. Alito Jr., a member of the U.S. Court of Appeals for the Third Circuit, has been accused of a conflict of interest by a woman whose suit he and two other appeals judges dismissed . . . According to Alito’s 2002 financial-disclosure statement, the judge held investments worth $390,000 to $930,000 in 11 Vanguard funds in July 2002, when he ruled on a lawsuit filed by Shantee Maharaj of Wayne against Vanguard.

Alito argued that he didn’t need to recuse himself because the case was so small that it wouldn’t even affect Vanguard:

They have $600 billion invested with them. The idea that a case like this would affect [their investments] is just ludicrous.

Despite his own arguments, Alito eventually recused himself but continued to insist he had done nothing wrong.

Now, my first reaction was that this was a case of economic illiteracy by these critics. After all, a mutual fund isn’t like another company; mutual funds are managed by an investment advisor, and so an investor in the fund is more in the position of a client or customer of the advisor. Normally, if the investment advisor gets sued, therefore, it’s of no direct concern to the fund investor, who has invested with rather than in the fund company.
I went and did some digging, though, and it turns out that the charge isn’t illogical, just silly. The original Philly Inquirer story explains why the unusual nature of the Vanguard funds made this different from the usual claim against a mutual fund company:

Alito said he believed his Vanguard holdings did not constitute a conflict because they were investments in mutual funds. As such, he said, he was merely an investor in Vanguard, not an owner of the company.
Flym [Maharj’s lawyer] said the judge, in fact, is an owner because Vanguard is owned by its investors.
In its corporate literature, Vanguard says: “The shareholders and owners are essentially one and the same at Vanguard. Vanguard shareholders own the Vanguard funds, which are independent investment companies that jointly own the Vanguard Group. The Vanguard Group provides management, administrative and marketing services to the funds.”
The Judicial Conference of the United States has developed a checklist to help federal judges avoid conflicts. The instructions on that checklist say:
“Shares in some mutual funds may convey an ownership interest in the mutual fund management company in which case that company should be included on the [judge’s] conflicts list.”
Alito cited a separate advisory from the Administrative Office of U.S. Courts that says judges are not required to disqualify themselves from cases involving their mutual-fund management companies.

Now, it appears that Judge Alito may well have forgotten that fact, as I did. But the notion that the case involved any kind of malfeasance is nonetheless absurd. Even if the plaintiff had won her case, the economic impact on Vanguard would be negligible, and certainly not enough to affect the judgment of a shareholder of one of its many funds; the case involved a dispute over $170,000, compared to hundreds of millions of dollars in the Vanguard funds, barely a blip on Vanguard’s radar screen. And even leaving aside the fact that the recusal standard is not as clear-cut as the critics suggest, the case fit the classic profile of a losing battle where a plaintiff with no case on the merits tries to gin up something like an ethical complaint against the judge to keep the case going:

Maharaj contended in her suit that Vanguard had improperly released funds from her late husband’s retirement account in 1998 to pay a Massachusetts judgment. Vanguard said it was ordered by a Massachusetts judge to release the money.
Maharaj’s claim against Vanguard was dismissed in 2001 by a U.S. District Court judge in Philadelphia.
Alito and his colleagues – Judges Julio M. Fuentes and Jane R. Roth – upheld the dismissal order.
An opinion issued by Alito said that Maharaj could not litigate in federal court because her claim already had been rejected by Massachusetts state court.


Acting as her own lawyer, Maharaj, 48, has spent the last seven years, since her husband’s death in 1996, battling unsuccessfully in the courts in Philadelphia and Massachusetts.
After the appeals court rejected her suit last year, Maharaj requested the financial-disclosure reports of the judges who had ruled on her case.
On learning of Alito’s Vanguard holdings, Maharaj contacted a professor at Northeastern University School of Law in Boston, where she had studied law in the early 1980s, and asked for help.
The professor, John G.S. Flym, assisted Maharaj in researching and drafting a conflict-of-interest motion that was filed with the appeals court in Philadelphia last month.
The motion requested a new hearing, with Alito barred from participation.

The article goes on to note that the litigation initially arose from a business dispute involving Maharaj’s husband and a Massachusetts court’s conclusion that the husband had fraudulently transferred assets to the couple’s Vanguard account to avoid paying a judgment. The lower court decision notes that the Massachusetts court had enjoined Maharaj from further litigation. The United States Court of Appeals for the First Circuit had upheld an order compelling Maharaj to pay attorneys’ fees as far back as 1997. After Judge Alito recused himself in an excess of caution, the plaintiff lost again before the new panel. In short, the ethics complaint falls under the heading of “grasping at straws”.
Nobody’s perfect, and judges do make small oversights. But Alito had no actual conflict of interest – the amount of money involved, in proportion to the size of the Vanguard Funds’ holdings generally, meant that the case could not have affected a Vanguard investor, regardless of how large or small the investor’s stake in Vanguard Funds was. Nor was it unreasonable for him to act as if Vanguard was covered by the general policy of the federal courts regarding mutual funds, although this assumption turned out to be incorrect. Nor, as it turned out, was there any merit whatsoever to the underlying lawsuit, brought by a litigant who’d spent years trying to avoid paying a legitimate judgment. In short, the critics are all wet.
UPDATE: The Washington Post says Alito had been asked about Vanguard issues 12 years earlier at his hearing, and promised to recuse himself, and that the White House ascribes the non-recusal to a failure to flag the case on the Third Circuit’s computerized conflicts system. I still fail to see why this is anything but an honest and very minor mistake, given the fact that this was a routine slam-dunk case with no possibility of affecting Alito’s finances.

Judge Alito’s College Days

“Sam intends to go to law school and eventually to warm a seat on the Supreme Court”
Orin Kerr links to this profile of Samuel Alito from his college days – he graduated from Princeton in 1972. Judge Alito was in ROTC, a fact that will no doubt unsettle the plaintiffs in the Solomon Amendment case if he is confirmed. And yes, that’s a picture of him in college. Not that, er, I should talk.

Not Bashing

Unsurprisingly, preeminent appellate law blogger Howard Bashman is thrilled with the nomination of Judge Alito, a judge he knows well; see here, as well as more on Judge Alito from Bashman here, noting Judge Alito’s role in changes to the Federal Rules of Appellate Procedure.

Alito’s Way

At 8 a.m. this morning, President Bush is scheduled to nominate a successor to Justice Sandra Day O’Connor for the third time (bear in mind that John Roberts was initially tapped to replace Justice O’Connor), and it will, in fact, be Judge Alito of the Third Circuit. As I’ve said, Judge Alito isn’t necessarily my first choice, but he’s unquestionably qualified, with a wealth of experience (bio here), including 15 years as a federal appeals judge and 13 with the Department of Justice, first as a trial-level prosecutor for four years in New Jersey, then in DC with the Solicitor General’s office and as a deputy assistant Attorney General during the Reagan years (1981-87), then as US Attorney for New Jersey from 1987 to 1990. He’s a fine choice and a guy who shows every sign that he’ll serve with distinction and, like John Roberts, can be expected to exceed the existing standards for Supreme Court nominees in terms of his accomplishments and brainpower.
Harry Reid is promising a fight. One popular caricature of Alito is the monicker “Scalito,” hung on him by some journalists, but I gather he’s really not as similar to Antonin Scalia as conservatives would like or liberals would fear; we’ll learn more in the days to come, but it does seem that the nickname plays off of his ethnicity and journalistic laziness rather than any genuine similarity in temperament, style, or declared philosophy.
More Alito links here, here, here, here, and here.
UPDATE: Welcome visitors! Look around the site, this is just the tip of the iceberg of posts on the Alito nomination.

Alito and Casey on Abortion

The buzz still seems to favor Third Circuit Judge Samuel Alito as the likely next judicial nominee. Judge Alito’s not necessarily my first choice, but he’d be a good guy to go to war behind, if the Democrats prove intent on a war, which they may if they are calculating that Bush is weak and can be beaten regardless of the nominee’s quality. That’s not an insane calculation, although if that’s the tack they take, the Democrats should realize that they are picking a fight that has at least the potential to play directly into Bush’s best hope for re-energizing his base and regaining his lost momentum.
Anyway, Ground Zero in any battle over Judge Alito would be his dissent in Planned Parenthood v. Casey, the big 1992 abortion case that passed through the Third Circuit on its way to the Supreme Court. Patterico takes a close look at that dissent, which didn’t reach the more explosive question – addressed by the Supreme Court – of whether Roe v. Wade should be overruled. Instead, Judge Alito found that the Pennsylvania statute at issue was constitutional under existing standards set forth in prior Supreme Court decisions. As Patterico explains about that conclusion:

[A]s Justice Scalia noted in dissent, “the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O’CONNOR’s earlier opinions.” In other words, Judge Alito read her earlier opinions correctly, but the Court imposed a new, more restrictive standard in Casey. You can’t blame Judge Alito for that.

(Emphasis in original).
But what’s even more interesting about potentially staging a big fight over Alito’s ruling in the Casey decision is the identity of the defendant, the governor who signed into law and defended in court the abortion restrictions that the Senate Democrats would presumably be describing as “extreme,” “outside the mainstream,” etc. – Bob Casey, the Democratic then-governor of Pennsylvania. And, of much more urgent interest, the father of the Democratic candidate challenging the most vulnerable of Republican incumbents in 2006: Rick Santorum. If the national Democratic party wants to make Judge Alito out to be a right-wing nutcase over finding that Bob Casey didn’t violate the Constitution, sooner or later someone is going to ask his son if he agrees. And that’s gonna be a question that will put him in an awfully bad position.
And Karl Rove will smile.

Initial Thoughts on the Libby Indictment

1. Were I Libby, I would choose a bench trial. The judge, Reggie Walton (not this guy) is a Bush appointee and was previously appointed to positions by Reagan and Bush I. I don’t know much about him and don’t mean to suggest he’d go easy on Libby, but that beats the heck out of a D.C. jury when you are a prominent Republican, and Jewish to boot (at least I assume Libby is Jewish).
2. Man, this is a strong indictment. I’ve seen perjury indictments in the past and know a little about the law in that area, and unlike the DeLay indictments, Fitzgerald has nailed down all the legal requirements here, such as detailing the precise statements and setting forth why Libby’s answers were material to the investigation.
Libby is basically accused of telling radically different stories to the grand jury and to investigators than the reporters (Judith Miller, Tim Russert and Matt Cooper) told, plus his story is apparently inconsistent with what he can be shown to have known based on his conversations with various government officials, including Dick Cheney, “a CIA briefer,” Libby’s “Principal Deputy,” Ari Fleischer, the Counsel to the Vice President, the Assistant to the Vice President for Public Affairs, and “Official A,” who may or may not be Karl Rove. If you are keeping score at home, that’s ten witnesses, and that’s before we get to the documents (Tom Maguire suggests that even Libby’s own notes may have contradicted him, and that his attorneys should have known this). If all this holds up – and given Fitzgerald’s reputation, I’d guess at least most of it will – Libby is toast.
3. Oh boy, the trial is gonna be interesting unless they find a way to close the courtroom (which would trigger immediate lawsuits). Just look at that witness list. Russert, Miller and Cooper have to be the star witnesses, but if Fitzgerald’s theory is that the untruth of Libby’s statements is shown partly by the fact that he had prior knowledge of Valerie Plame and her status as a CIA employee, and the first evidence of that is a conversation with Dick Cheney . . . how can Cheney not be a witness in this case?
4. Of course, as everyone has noted, the indictment states that Plame’s employment was “classified” but does not suggest that she was a covert agent at any time that would be relevant to any of this.
5. Libby’s behavior, if as alleged, seems incomprehensible unless (a) he was reckless in his certitude that reporters would never testify, (b) he’s a compulsive liar, or (c) as Andrew Sullivan suggests, he was worried that Cheney himself would get in trouble and decided to fall on his sword for the Vice President. I suspect (a) is part of the story, but I also think that, if it is the case that Cheney told Libby that Plame worked for the CIA and that started the ball rolling, Libby was indeed worried about protecting his boss, whether or not Cheney knew anything about her having ever been covert and whether or not Cheney had any further involvement in leaking her name.
6. For the record: yes, perjury and obstruction of justice are serious crimes. I believed that in 1998, and I believe it now. There is such a thing as a hypertechnical perjury charge, but this isn’t it, any more than the charge against Clinton was; in each case, the witness deliberately set out to obscure facts the tribunal was entitled to know (the difference being that Libby hasn’t also been charged with inducing other witnesses to lie). Good to see that many Democrats and liberals have now decided to agree with those of us who have taken that position all along (see this NR editorial).

Alito Rising

ConfirmThem has the latest hot speculation that Third Circuit judge Samuel Alito, nicknamed “Scalito” by some journalists, is going to be the replacement nominee for Harriet Miers, including word that Alito is in Washington this weekend. Alito is regarded as a real lawyer’s lawyer, much like Roberts, rather than an ideological type, but if Bush is – as has been speculated – mainly interested in getting nominees who will uphold Administration policies on detainees, he is probably reassured by Alito’s background as a prosecutor.
This profile has some observations on Alito, and reminds me of the fact that Alito probably benefits, in this process, from being close to Michael Chertoff, the Homeland Security chief who succeeded Alito as US Attorney for New Jersey and served briefly as his colleague on the Third Circuit.

Sun Tzu and the Art of Judicial Nominations

It’s too early to say with certainty what the long-range impact will be of conservatives leading the charge to cause the withdrawal of Harriet Miers’ nomination. But that won’t stop me from offering two lessons that President Bush should remember for the next nomination:
1. Competence is Non-Negotiable
Traditionally, the ideal with regard to the Supreme Court was to pick the best-qualified candidate from among the pool of judges, scholars, practicing lawyers and politicians who would be politically agreeable to the President. Granted, that ideal was often discarded in practice, but it was seen as desirable to follow it. There are many examples of such nominees – John Roberts, Antonin Scalia, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, Felix Frankfurter, Louis Brandeis, Benjamin Cardozo, Oliver Wendell Holmes.
There was always one countervailing pressure – the desire to pick a young nominee who would sit on the Court for a long time, the most obvious example of which was Clarence Thomas, who even after 15 years on the Court is younger than Harriet Miers and the same age as some of the candidates now being considered. As it turned out, Thomas was more than sufficiently skilled for the job, but his qualifications were admittedly somewhat thin at the time (I’ll leave for another day the issue of why Thomas’ qualifications were never as thin as Miers’; even then, once you accept the political reality that the first President Bush wanted a black nominee, there’s little doubt that Thomas was the most qualified black conservative available at the time).
But the Borking of Robert Bork led to a second, new pressure against a highly qualified nominee, a pressure that had not existed before: fear that a nominee with a long record of judicial decisions and scholarly writings could be picked apart, fairly or unfairly, on the basis of that record. Thus, scarred by the Bork disaster and successive attempts to repeat the experience at the appellate level, the last four GOP Supreme Court nominees (Souter, Thomas, Roberts and Miers) have all been “stealth” candidates with limited paper trails.
The collapse of the Miers nomination is being spun in some quarters solely as an ideological battle, but I think liberal law professor Jack Balkin said it best:

The lesson of the Miers nomination is that stealth candidates must be widely perceived to have sterling credentials. President Bush was determined not to have another Souter, and he got his wish: Unlike Souter, Miers was perceived as insufficiently qualified. That made lack of clarity about her positions fatal to her nomination.

(Emphasis added). Of course, it goes without saying – as could be seen by the bipartisan nature of questions about Miers’ qualifications – that the competence issue was one that resonated with people accross the political spectrum, not only giving conservatives nervous about her philosophical leanings an excuse to oppose her without objecting solely on ideological grounds but also giving Democrats a free excuse to oppose her at a later date without political consequence if it became useful to do so.
Howard Bashman sounded a similar theme, calling Miers’ withdrawal “A victory for [conservatives; liberals; elitists; those who demand highly qualified nominees to the U.S. Supreme Court; bloggers]?” (See also this pre-withdrawal Bashman column). Andrew Sullivan, who’d been critical of the nomination, also focused on competence, which as you will recall was the deal-breaker for me and many others on the Right:

This is a big coup for the Washington conservative intellectual establishment and the counter-intelligentsia that has been deliberately built to tackle the left’s academic monopoly these last couple of decades. They wanted one of their own on the Court, and they’ll get one. At the very least, they have shown they have a veto against anyone too patently unqualified. Given Miers’ credentials and post-nomination performance, we may have reason to be grateful for their clout.

My hope is that Balkin is right, and that the Miers withdrawal will come, in time, to be seen as a bookend to the Borking of Bork: a cautionary tale that presidents of any party should not go too far in seeking to avoid nominees with a distinguished public profile of litigating, adjudicating or commenting on issues of great public concern. And that, to me, is an extremely encouraging development, a healthy corrective to the Bork precedent.
2. You Can’t Win A Nomination Fight You Aren’t Willing To Lose
Every Supreme Court nomination, like every executive nomination and every piece of legislation supported by the White House, is a potential battle. That battle, like all battles, is fought on two fronts. The field of battle is in Congress, in this case the Senate: the President needs 50 votes plus the Vice President to confirm the nominee, and needs either 60 votes for cloture to prevent any filibuster or 50 votes to trigger the so-called “nuclear option” and eliminate the filibuster forever. The conditions of that battle, however, can be dictated by success or failure in mustering public opinion: the President may need to move public opinion in favor of the nomination to get wavering Senators to support confirmation, cloture or the “nuclear option”; at a minimum, he needs to avoid having adverse public opinion cause potential supporters to defect. Thus, each nomination must be crafted with an eye towards both fields of battle – the Senate and the public.
Because the public’s view can influence that of the Senate, picking a nominee based on perceived acceptability to the Senate without regard to public reaction risks the classic problem of quagmire, where conditions in the field deteriorate if the battle is protracted because lack of support on the home front makes it impossible to keep all the President’s troops in the field. A second corollary is that “the public” includes all those forces outside government that influence elected officials – the voting public, the activists who do party-building and get out the vote work, the donors who finance party politics, and the pundits (including bloggers) who take steps large and small to move public opinion. No nomination will win the unanimous approval of all these groups, but all have their roles in the process.
Understanding, then, the conditions of the battlefield, let us examine the lessons of battle that President Bush failed to absorb with the Miers nomination but needs to remember in his next choice. First, consider the objectives and the alternatives. The President’s #1 goal should be to get a good nominee confirmed, with a good nominee being one who will be consistent with the stated philosophy of the President and his party and who, hopefully, will provide some measure of political benefit by confirmation – by satisfying the President’s supporters, by meeting the approval of potential supporters of the President’s agenda, and/or by reducing or dividing the intensity of the opposition.
But considering the benefits of confirmation is only half the battle. With fewer than 60 Senators committed to the same goals as the President in terms of philosophy and political objectives, the President must also consider the possibility of defeat and must choose a nominee who will also provide political benefits if the President’s nomination is defeated. Because the first rule of any potential battle is that weakness invites opposition.
Recall Sun Tzu’s dictum about war:

To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.

Unlike some conservatives, I don’t believe the President needs a fight over a nominee; while I would in some ways enjoy such a fight and think it would provide some benefits, I would be happier to get a good nominee confirmed without a fight, as with John Roberts.
But consider how Bush avoided a major fight over Roberts. Roberts was nominated not only with the intention of picking a nominee who would mollify the moderate Senators (liberal Republicans, conservative Democrats) who determine the immediate conditions of battle. His nomination also avoided a fight because, if Democrats had filibustered him, they would have looked terrible to the public. Because Roberts was so obviously qualified and had no ethical or other non-ideological problems, the only possible basis for opposing him was his judicial philosophy and the contention that his personal beliefs would impact that philosophy. Particularly given that Roberts presented that philosophy in fairly non-threatening terms, moderate voters would have seen this as pure obstruction. Meanwhile, Roberts was sufficiently reassuring to conservatives that he was viewed as a potential improvement on the court, and because of his relative youth, he was seen as a potentially lasting improvement. A filibuster would have ended up backfiring on the Democrats, and probably could not have been sustained for long in the face of public disapproval.
Thus, the Roberts fight would have been a good fight to lose – and precisely because it was a fight that would help Bush if he lost it, he never had to fight.
The Miers battle was precisely the opposite. Bush evidently regarded Miers as a good fight to win, as he would get a Justice he had faith in. But he failed to consider the fact that she was a terrible fight to lose. As Josh Marshall, looking across the battlefield from the opposite side, put it:

Nominations can have dynamics similar to those of political scandals.
We tend to think that the real key to a scandalee’s fate is how many mobilize against him or her. Usually, though, the key issue is whether and how quickly they can find some committed group to mount a defense. If that happens, and quickly, a scandal equilibrium can be reached, and an embattled pol can often withstand merciless attacks and revelations. With no true base of support, however, a career can rapidly collapse even if the opposition itself isn’t all that intense.
Miers’ nomination could fail in a similar way.
Sure, only a few Republican senators have expressed serious misgivings. But who is it exactly, either in or out of the senate, who is going to fight hard for this nominee?

Nobody but the President had a first-hand basis to believe that Miers was well-qualified for the job or to believe that Miers would improve the Court in terms of her judicial philosophy. Accordingly, if – as has happened – Miers was defeated, nobody but Bush himself would give Bush credit for having put forth such a nominee in the first place. Indeed, one of the predominant arguments of supporters of the Miers nomination from Day One was that Republicans should support her because the President had put himself in a position where it would be damaging to lose.
This, of course, was evident as well to Democrats, which meant that they knew from early on that they would have the initiative. With the President’s own supporters divided and many of his best troops switching sides, a battle would be on unfavorable turf for the White House. With non-ideological grounds available to oppose the nominee (not just competence but the plausible charge of cronyism), the Democrats could choose to oppose – if they wanted – at their convenience without fear of reprisal. With Republicans fighting among ourselves, Democrats could afford to wait and choose the time and place to come out in open opposition. In short, by picking a nominee whose qualifications were not self-evident and who had few genuinely committed supporters, Bush created a battlefield on which he could gain nothing by losing, while the Democrats would lose nothing by winning. By seeking compromise, he ended up compromised. In the end, he was better off retreating entirely from the field and picking a new nominee.
Nor was internal opposition to Miers at all unpredictable, especially given her thin qualifications; I’ll explore this at greater length another day, but while Republicans have as many different internal fault lines as Democrats, what gives the GOP a much higher level of cohesiveness is its priorities, the fact that conservatives and Republicans will accept a lot of things they don’t agree with as long as the party unites behind the Big Three of national security, lower taxes and the courts. Bush could win a battle over, say, expanding Medicare by invoking the need for party unity to accomplish more significant goals. But picking a Supreme Court nominee who is perceived as unacceptable goes to the core of the party’s purpose, and guarantees internal opposition. A Republican president can not hope to win a Supreme Court fight by expanding the battlefield to promise ofsetting benefits on other issues; he needs to win it on its own terms.
So no, in selecting his next nominee, Bush doesn’t needs to pick a fight. But he does need to pick a nominee who is worth fighting for. If you don’t pick a nominee you want to fight over, your opponents will know they can beat you by fighting.
As I have written before, I personally would prefer that Michael McConnell, the distinguished Constitutional scholar, veteran Constitutional and commercial appellate litigator, and now Tenth Circuit judge, be the nominee. McConnell might or might not provoke a fight, but it’s a fight on Bush’s terms, and one Bush could lose with his head held high on the basis of having picked a supremely qualified candidate (McConnell knows Con Law even better than Roberts), well-liked among Bush’s core supporters and respected by his opponents. If Bush prefers someone else among the many qualified candidates available, he should look for someone about whom the same could be said. But he needs to remember that only by choosing battle can he hope to avoid one.
UPDATE: RedState says Third Circuit judge Samuel Alito will be the pick. From what I know of him, that sounds good.

Revisionist History

The Democrats are now doing with the Harriet Miers nomination that thing they do best . . .
First, several prominent Senate Democrats are now claiming that they were just fine with Miers, so as to blame “the extreme right wing” for doing in her nomination. As Carol from ConfirmThem points out here and here, this is in direct contradiction to their own previous statements about Miers.
Second, Kos now takes the view that “Senate Democrats have helpfully emailed around the list below of GOP passion for the “up or down vote”. Too bad the Miers fiasco has taken away that talking point from their repertoire.” As John Cole explains slowly and in (hopefully) small enough words, there was not a peep from Republicans about blue-slipping or filibustering Miers, or even about delaying the scheduled date for her hearing. Those of us who called for her withdrawal simply felt that she deserved to be voted down, and thought the president shouldn’t let the bleeding continue for another month. This is not even close to the same thing as filibustering a nominee who has the support of a majority of the Senate.
And, hey: we were all told, repeatedly, by Miers’ friends that she was opposed to abortion and likely to vote to overturn Roe v. Wade. Are Kos and the Senate Democrats now admitting that they would have permitted a floor vote for, and possibly confirmed, a nominee who was – in Barbara Boxer’s words – “anti-choice”? Because maybe now they can retire that talking point too.

22 Questions for Hugh Hewitt & Co.

Hugh Hewitt has propounded 9 questions for Miers critics on the Right:

Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?
Do Harriett Miers’ many accomplishments count for nothing?
Does Harriett Miers strike the commentator as a dedicated public servant?
Why not wait for the hearings to at least begin?
How important is it that Roe v. Wade/Casey be reversed?
Which five precedents does the commentator think are in most pressing need of reversal?
Does the commentator agree with George Will’s assertion of Justice Lewis Powell as the “embodiment of mainstream conservative jurisprudence?”
Is a neo-Borking underway which will discredit the conservative cause’s defense of its future nominees against similar, future attacks from the left?
What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?

I was going to post a detailed response, but Patterico, Dale Franks and Jeff Goldstein have said much of what needs to be said in responding to Hewitt. I may update this post later with my own answers, if I get the time.
But here are some questions – 22 of them – for Hewitt and other Miers defenders on the Right (including Beldar, if he sees fit, although these don’t mainly go to Beldar’s arguments, plus Beldar is doubtless busy mourning the Astros at the moment). Thanks to Dale Franks for his input on the questions. They don’t capture all of the hard questions, but a lot of them for those of us who consider ourselves conservatives and, in general, loyal Republicans, and I would honestly like to hear how Hewitt and other Miers defenders (including those still in the “wait and see” camp) deal with these:
The Limits, if any, of Loyalty to Party Leaders
1. Some conservative/Republican pundits/bloggers honestly believe Harriet Miers would be, for various reasons, a bad Supreme Court Justice. Do you believe those pundits/bloggers should (a) state their concerns publicly, (b) keep their mouths shut, or (c) support her anyway?
2. What issues are important enough issues to justify taking an active stand against a Republican president or Republican congressional leaders? Are there any such issues, other than the war?
3. Is the GOP worse off because John Tower’s nomination for Defense Secretary failed and he had to be replaced with Dick Cheney?
4. Is the GOP worse off because Republicans and conservatives – pundits, bloggers, and elected officials alike – participated in forcing Trent Lott to step down as GOP Senate Majority Leader?
5. Is the GOP worse off because Ronald Reagan ran a primary campaign in 1976 against a sitting Republican president who then lost the general election by two points?
The Nominee’s Qualifications and What Will Be Learned at the Hearings
6. Does it matter if a Supreme Court Justice does not write clear and logical opinions?
7. Does it matter if a Supreme Court Justice does not know constitutional law well enough to avoid writing opinions in one case that will have unexpected bad consequences in other cases?
8. Even limiting the search to lawyers in private practice who have not been judges, and judging by the standards of legal reasoning and persuasive argument, is there any reason to believe that Harriet Miers was in the top 50 or 100 best lawyers in this country? If not, does it matter that she is not?
9. Please cite examples of Harriet Miers’ writings that demonstrate an ability to write and reason clearly. If no examples are available, please explain why we should believe that such examples will be forthcoming before her nomination will be put to a vote.
10. What concrete, relevant information do you believe we will gain at the hearings regarding Harriet Miers’ qualifications and philosophy that we do not already have?
Making the Left’s Arguments
11. Do you believe that continuing to tout Miers’ gender will, if she is voted down or withdrawn, make it impossible for President Bush to consider a male nominee?
12. Do you believe that continuing to tout Miers’ religion will, if she is voted down or withdrawn, make it impossible for President Bush to consider a non-evangelical Christian nominee?
13. Do you believe that it is important to have an evangelical Christian among the Justices? If so, why is this different from other religious tests, and is it proper for nominees to be questioned about their religion?
14. Are Harriet Miers’ personal beliefs on abortion relevant to your support for her? If so, is it proper for nominees to be questioned about their personal beliefs on abortion?
15. Of the three, which should the #1 goal in Supreme Court battles: (a) getting Justices who produce good results, (b) getting Justices who follow good legal reasoning, or (c) getting Justices whose confirmation provides political benefits to the party?
Back At You
16. How important is it that Roe v. Wade/Casey be reversed?
17. Which five precedents do you think are in most pressing need of reversal?
Role Models
18. Would you be satisfied with another Justice just like Lewis Powell? Potter Stewart? Warren Burger? Anthony Kennedy? Sandra Day O’Connor?
19. Do you believe that a significant portion of the GOP base is unhappy with the Miers nomination?
20. If not, do you believe that the pundits/bloggers who are openly critical of the nomination – including Rush Limbaugh, National Review, The Wall Street Journal, Bill Kristol, Laura Ingraham, Charles Krauthammer and George Will – are important parts of the GOP’s ability to win public issue debates and elections?
21. Do you believe that the GOP is currently heading for a successful 2006 election cycle if it keeps doing the things it has done in 2005, or is a change of course needed to motivate the base and persuade swing voters?
22. Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork’s defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?
UPDATE: Xrlq offers answers.

The Elitist

I have enjoyed and respected Hugh Hewitt’s contributions in the past, even if he is the Josh Marshall of the Right, a guy who is not just the most thoroughly partisan of pundits but one who seems to draft every post with the express goal of moving the chains in his side’s direction.
But Hewitt has really gotten on my nerves, as well as those of a lot of other conservatives, with his bareknuckled assaults on critics of the Miers nomination. Among these arguments, he has spent weeks arguing that those of us who want Supreme Court Justices to actually know constitutional law are misguided elitists; con law, Hugh argues, is just so simple that any half-decent lawyer can do it. It is, if anything, anti-democratic to insist that only those familiar with the body of constitutional law can serve on the Court. A curious argument coming from a man who teaches constitutional law, but that’s his position, and he’s stickin’ to it. Or was.
Saturday, comes Hewitt to take on conservatives concerned about Miers’ past support for racial preferences at the Texas Bar (Patterico has more on this topic). Here is his response:

I see many on the web are exercised about Harriet Miers’ support for affirmative action in the private setting of support for resolutions of the Texas Bar urging quotas in hiring at private law firms. It is not a policy with which I would agree either, but it also not a matter of constitutional law, unless under Brentwood the action of the Texas Bar in urging private firms to set strict goals has converted into a state action. Don’t know what Brentwood is? Or the state action doctrine? Not many people do. But those that don’t ought not to be confusing ConLaw with the private decisions of private firms while agruing that this policy makes Miers suspect on Bollinger. Now, if she supported a soft line on the Bollinger cases, that would be a legitimate area of concern, but not the Texas Bar resolutions.

For a guy who thinks Supreme Court Justices don’t need to know Con Law, Hewitt sure is quick to use his own expertise in the area to pull rank over pundits who don’t know Con Law.
UPDATE: Jonah Goldberg makes the point succinctly as to why the requirements for having informed opinions is lower, not higher, than the standard for getting the job: “Ben Affleck deserves an Oscar more than I do, but that doesn’t mean he deserves an Oscar.”

Fried on Miers

My constitutional law professor weighs in on the Miers nomination, and unsurprisingly, his views and priorities are about the same as my own on the perils of a Justice who can’t write:

A justice without the strength of mind to pick her way through these intricacies and the skill to explain her decisions in understandable and compelling prose suited to those intricacies will flounder in a number of ways that would be disastrous for the law. Such a justice might rely on instincts undisciplined by clear analysis and therefore over time spin a web of confusion which increasingly will entangle that justice, the justice’s colleagues and a perplexed public. Or that justice might fall under the sway of one or more of his or her colleagues and so disappoint the expectation that a fresh and independent mind has been added to the court.
Worse still, if the justice cannot write then someone is going to have to do that writing for the justice, and that will inevitably be the justice’s law clerks. Those law clerks almost to a person are wizards at untangling legal puzzles and masters at setting out the answers in precise if usually turgid and uncompelling prose. But they are also young graduates without wisdom, experience, or a constitutional mandate to help run the country.
Unfortunately over its history the Supreme Court has had its share of intellectually inadequate, wavering, incoherent, absurdly stubborn, or clerk-driven justices.

Via Instapundit. Read the whole thing.

Continuing Conflict of Interest?

A reader asks Professor Bainbridge whether Harriet Miers should resign as White House counsel because of the risk that further actions as White House counsel could lead to further recusal issues down the road on the Court. As a practical matter, I doubt she’s doing much counseling at the moment, so this is somewhat theoretical, but it would probably be prudent to take a formal leave of absence (sitting judges, of course, don’t step down for a more practical reason: they don’t want to give up their current life-tenured jobs).

Will on Miers

Nothing terribly new here, but a few interesting points from George Will, who from the start has been one of the implacable foes of the Miers nomination:

Can Miers’s confirmation be blocked? It is easy to get a senatorial majority to take a stand in defense of this or that concrete interest, but it is surpassingly difficult to get a majority anywhere to rise in defense of mere excellence.
Still, Miers must begin with 22 Democratic votes against her. Surely no Democrat can retain a shred of self-respect if, having voted against John Roberts, he or she then declares Miers fit for the court. All Democrats who so declare will forfeit a right and an issue — their right to criticize the administration’s cronyism.
And Democrats, with their zest for gender politics, need this reminder: To give a woman a seat on a crowded bus because she is a woman is gallantry. To give a woman a seat on the Supreme Court because she is a woman is a dereliction of senatorial duty. It also is an affront to mature feminism, which may bridle at gallantry but should recoil from condescension.
As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch’s invaluable dignity.

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.

The Writing Sample

Beldar offers up, as a sample of Harriet Miers’ persuasive writing, a letter she wrote to George W. Bush (when he was governor of Texas) urging him to veto legislation that would prevent the newly Republican-controlled courts from regulating attorneys’ fees, specifically those charged by the plaintiffs’ bar in contingency-fee cases. I agree wholeheartedly with Patterico that this is another unencouraging sign (to say the least) about Miers’ writing abilities. Check out the last two full paragraphs:

The passage of this proposed law squarely raises the issue of the special interest laws [sic] for the benefit of those who have the wealth and power to cause to be passed self-protective legislation. What possible justification can exist for this law? There may be attempts to explain or provide justification. Those of us who are knowledgeable about the legal community know that this law is a special interest bill to protect from legitimate scrutiny and regulation individuals in our state perceived to wield power and influence.
I respectfully suggest that this law should be vetoed. It is bad, indefensible policy. Additionally, I feel confident it will never work and those involved in its promulgation will be smeared with legitimate criticism for a blatant attempt to shield, protect and curry favor with interests that have brought shame on this state, badly hurt our economic development efforts directed at creating jobs and continue to this day to cause our state to be held in disrepute for “justice for sale.”

Where to begin? Leave aside the grammatical disaster that is the phrase, “[t]he passage of this proposed law squarely raises the issue of the special interest laws . . . ” We have the mealy-mouthed phrase “those who have the wealth and power to cause to be passed self-protective legislation,” rather than coming right out and saying, in a declarative sentence, “the contingency fee bar” or some such clear descriptive phrase. Then, having gone not nearly far enough, Miers backtracks: those who, two short sentences earlier, could be confidently asserted to “have the wealth and power to cause to be passed self-protective legislation” are suddenly only “perceived to wield power and influence.” And while the bill will, for reasons unstated, “never work” (at what? Miers does describe some specific bad effects earlier in the letter, but never addresses the bill’s actual stated purpose, and seems to assume that it actually will work at the purpose of benefitting people with actual or perceived power or influence), it nonetheless will, at some future date, “continue to this day” (in the future? or are we in Doc Brown’s DeLorean now? actually, it’s the “interests” that “continue to this day” to do bad things, but that connection is lost in Miers’ tortured syntax) to cause the bill’s proponents to be “smeared with legitimate criticism” (!!).
David Brooks’ grim assessment of Miers’ writings as the head of the Texas Bar were bad enough, but one can understand that a bar association president’s job is to say nothing, and most rational people wouldn’t put much effort into writing those letters. But this was an attempt to persuade the governor of the state to veto a bill, and yet we get instead this train wreck of euphemisms, tortured grammar, and laughable solecisms. I do not look forward to spending the rest of my professional career reading opinions like this, and this sort of thing pushes me one step closer to throwing my lot in 100% with the anti-Miers forces.
UPDATE: Patterico also directs us to this critique along the same lines.
SECOND UPDATE: Another example, from Patterico, of muddled thinking and/or bad writing from Miers.

Quick Links 10/19/05 (Supreme Court Edition)

*The now ironically named ConfirmThem makes a point I had thought about with regard to Paul Mirengoff’s post on how the Democrats could filibuster Harriet Miers if, in an effort to rebuild her support on the Right, she makes clear that she would vote to overturn Roe v. Wade:

The prospect of this nomination triggering a debate on the nuclear option is perhaps the worst possible scenario for the White House. There could have been no other reason to select Harriet Miers other than to guarantee easy passage of a relatively unknown (stealth) candidate, thus avoiding a messy scene in the US Senate. But if a substantial number of Democrats decide, for whatever reason, to oppose this nomination, then not only would the administration have the fight it so desperately tried to avoid, it would have a fight without the support of much of its base.

Now, personally, as I’ve argued before, I don’t have a problem with filibusters of judicial or executive nominees per se; my objection is to open-ended, indefinite filibusters designed to prevent a vote once it’s clear that the nominee has the votes to be confirmed. But if the GOP allows such a filibuster of Miers, the Democrats will have a precedent they can point to in the future. Thus, it will be imperative for Republicans to overcome any filibuster of Miers, for the sake of future nominees and – yes – even for the sake of the power of future presidents, Republican and Democrat alike. But by staging such a battle in favor of a weak and unpopular nominee is the worst possible political ground to fight on.
*Patterico notes the related problem that Bush would be in a weaker position to name a known conservative to replace Miers than he would have been before the Miers nomination. On the other hand, if Miers’ nomination falls apart solely on the issue of her qualifications, that could provide a useful corrective for the post-Bork syndrome of picking nominees with short paper trails.
*Of course, that hasn’t stopped the rumor mill from running.
*So Harriet Miers has trouble keeping straight what she thinks about Griswold v. Connecticut, one of the most significant constitutional law decisions in memory. Not a good sign at all.
*As you’ve probably seen by now, National Review has officially weighed in against Miers. Also, John Fund on what exactly conservative leaders were told about Miers and Roe v. Wade.
*The business community likes Miers. (Via NRO). I can tell you two related reasons why business groups don’t necessarily want another Scalia or, especially, another Thomas. One, business has been thrilled with the Court’s imposition of constitutional limitations on state court punitive damage awards. Scalia and Thomas have both dissented from the Court’s precarious majority on that issue (personally, I find much more compelling the rule against punitive damage awards based on out-of-state business operations, for reasons discussed here). Two, Thomas is also a regular dissenter from decisions on the Dormant Commerce Clause, which is often used to strike down local protectionist legislation and other hindrances on nationwide business operations. On this latter front, I think Thomas is fighting a pointless and lonely struggle against a doctrine announced in 1824 by John Marshall, but he does have his reasons. Many business leaders don’t want a Justice who will revisit the constitutional foundations of some of these decisions.
*Thinking out loud here on another issue that may come up, but I’m not sure it has any weight to it. Presumably, a Justice who was married to a lower court judge would have to recuse herself from cases in which he had issued a ruling, no? Doesn’t that suggest – and believe me, I’d really rather not go there – that whether Miers would have to recuse herself from cases on which Justice Nathan Hecht of the Texas Supreme Court had ruled would depend on the nature of their relationship, which seems to be at least semi-romantic but which was, until now, very properly nobody else’s business? (This is of a particular concern because the number of death penalty cases coming to SCOTUS from the Texas Supreme Court is non-trivial.)
*Beldar explains why Miers’ 1995 effort to block legislation over lawyer fee awards, on separation of powers grounds, was reasonable; the short answer is that lawyer fee awards, unlike many other subjects of judicial lawmaking, really are naturally subject to the plenary regulation of the judiciary by virtue of the judiciary’s inherent authority to regulate the ethical practice of the bar. That doesn’t mean a legislature should never intervene in those issues, but it’s not judicial activism to view the discipline of lawyers as the juduciary’s job in the first instance.
*Here’s something that drives me nuts. First, from the Washington Post:

Grover Norquist, head of Americans for Tax Reform and host of the other meeting, declined to comment on the discussion because of its presumption of confidentiality but said there is widespread concern given the experience with the nomination of Justice David H. Souter, who proved more liberal once on the bench.

Then, from an article about a new biography of Souter:

When he joined the court 15 years ago, Souter was touted as a sure bet for conservatives.
Since then, however, he’s been vilified as a traitor and closet liberal, more likely to align himself with swing voters like Sandra Day O’Connor than conservatives like Antonin Scalia.

(Via Stuart Buck). Would it kill these people to just come out and say that Souter has actually voted as a liberal? That he votes very consistently with the Court’s liberal bloc? Of O’Connor and Kennedy, you could say that they proved “more liberal” (or “less conservative”) or were/are “swing” voters. Souter, like Blackmun, is the genuine article, a guy who has sided with the Court’s liberals on nearly every major decision that offered a left/right split. Are Scalia and Thomas conservative? Yes they are, and news accounts properly describe them as such. But actually saying “David Souter is a liberal” is apparently a bridge too far.
*Christopher Hitchens quotes Thomas Jefferson:

Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear. You will naturally examine, first, the religion of your own country. Read the Bible, then, as you would Livy or Tacitus. . . Those facts in the Bible which contradict the laws of nature, must be examined with more care, and under a variety of faces. . . I forgot to observe, when speaking of the New Testament, that you should read all the histories of Christ, as well as of those whom a council of ecclesiastics have decided for us, to be Pseudo-Evangelists, as those they named Evangelists.

This is another pet peeve of mine. Hitchens quotes this passage as if it were self-evident that reason and skepticism must lead to atheism or agnosticism, and as if mature adults must retain a permanent posture of skeptical uncertainty towards the existence of God. There’s nothing wrong with, and much to be said for, taking a hard look at some point at the things we take on faith. But at some point in life, you have to make decisions and commitments; you can’t hide forever behind an attitude of permanent uncertainty (as Neal Peart put it, “if you choose not to decide, you still have made a choice”). Hitchens is speaking of Harriet Miers, but who is to say that Miers has not given her faith a skeptical re-examination? After all, she left the Catholic Church to join a new denomination, a more radical break than most people experience. The fact that Miers made a decision about her faith does not necessarily mean that decision was unexamined.

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).

Not A Good Sign

From OpinionJournal’s Political Diary, John Fund reports:

The portrait of Harriet Miers emerging from interviews with her friends and colleagues in Texas is largely a consistent one. She is universally regarded as bright, hard-working and remarkably gracious. But she also clearly has a steep learning curve when it comes to serving on the Supreme Court.
Bruce Packard worked with Ms. Miers as a partner at the Dallas firm of Locke Liddell & Sapp for a dozen years from 1985 to 1997. He calls Ms. Miers is a “very good moral person,” but says her real skills at the firm were networking and climbing the rungs of the local and state bar association hierarchy. She rarely tried cases and most of her work for corporations was to serve as the local counsel for out-of-state companies that needed someone familiar with local Dallas judges.

(Emphasis added). Hopefully, we’ll get a fuller picture of what Miers’ record in private practice really was. If I can be convinced that Miers was a genuinely outstanding commercial litigator, skilled in evaluating and presenting legal arguments and learned in the law governing her areas of practice, I can at least consider supporting her for the Court. That case remains unmade.
UPDATE: In Wednesday’s Political Diary, Fund says again that “Ms. Miers has real-world experience serving as local counsel for such corporate clients as Microsoft and the Walt Disney Company.” For those of you unfamiliar with the concept, if, say, a New York law firm wants to represent Microsoft in a Texas court, and the lawyers representing the company aren’t admitted to the Texas bar, Microsoft still needs to hire lawyers who are members of the Texas bar – “local counsel” – to appear with them in court, even if the Texas lawyers do little besides greet the judge, sign papers drafted in New York, and receive service of court papers (this is not limited to Texas – nearly all states have such requirements, and in fact, one subject Miers has written on extensively and substantively is multi-jurisdictional law practice). On the other hand, (1) some non-lawyers might use the term to refer to Microsoft’s regular lawyers in Texas, and (2) local counsel sometimes has a much more active role, including handling arguments and trying the case with just some background assistance from out of town lawyers.
To me, the question of what Miers’ role was in cases where she appeared on the pleadings on behalf of Microsoft and Disney is hugely important. Beldar’s review of published opinions in cases where Miers was named as counsel places very heavy emphasis on her representation of Microsoft and Disney to show that she had a top-flight commercial practice involving her in complex questions of law. I have asked whether those cases were typical of her practice. But if it turns out that even on those cases she was largely just signing papers drafted by out-of-state lawyers, that would severely undercut Beldar’s case for Miers having a distinguished record litigating complex and sophisticated legal issues.
SECOND UPDATE: Finally, some details on Miers’ cases – this account indicates that she was, in fact, lead counsel for Microsoft (via Bashman):

Most of the cases the Supreme Court nominee handled were settled before they went to trial, her former law partners say. Those colleagues and lawyers who opposed her remember Miers for her preparation and attention to detail.


Her biggest case may have been her successful fight to spare Microsoft from class-action lawsuits over an alleged defect in one of its computer operating systems.
Plaintiff lawyers persuaded a state district court judge in 1995 and an appeals court to certify lawsuits against the company as a class-action matter. Up to 11 million consumers around the country could have joined in one massive lawsuit against the software giant, according to lawyer Jerry Clements, who worked under Miers on the case.
Miers went back to the original judge and argued that recent court decisions meant that complaints against Microsoft didn’t merit class-action status. The judge reversed herself. Anyone claiming damage would have to sue Microsoft on his own – a costly undertaking. Later, the case was dismissed.
“That was the beginning of a pretty significant trend in Texas that moved away from the state being a good place for class actions,” Clements said.
Miers lost cases, too. In 1988, she defended a firm led by a prominent Hong Kong investor who had backed out of a deal to invest $5 million to buy a Dallas office building. One of the other investors, Bear Stearns Cos., tried to cash the Hong Kong firm’s letter of credit.
A federal judge sided with Bear Stearns, but Miers persuaded the 5th U.S. Circuit Court of Appeals to give her client another chance at a trial, according to Lewis LeClair, one of Bear Stearns’ lawyers.
“I really thought I had the case won until she showed up, and then I found myself playing defense for a long time,” LeClair said. Although Bear Stearns won in the end, “she did an excellent job with a very difficult case,” he said.


Joe B. Harrison, an attorney who opposed her in a 1998 case, remembers Miers as “well-prepared and competent and ethical and responsible.”


During the 2000 presidential campaign, Miers defended Bush and running mate Dick Cheney against a lawsuit claiming that Texas representatives to the Electoral College couldn’t vote for the Republican ticket.
The Constitution forbids electors from voting for a president and a vice president if all are from the same state. Cheney had lived in Dallas for five years and returned to Wyoming only after joining the ticket. Miers argued that the Texas residents who brought the lawsuit didn’t have standing to sue.
The appeals judges hearing the case later decided that Cheney was indeed a Wyoming resident. The opposing lawyer, Charles W. McGarry, said Miers focused on a narrow procedural issue but did a competent job.
“She was the go-to lawyer for Republicans,” McGarry said.

A lot of mild praise there – “competent,” “well-prepared.” I don’t think we’ll hear the kind of adjectives we heard from observers of John Roberts as an advocate, but we shall see. Overall, a small data point in Miers’ favor.

Harriet Miers’ Qualifications

Let’s do a little Q&A on Harriet Miers:
Am I supporting or opposing confirmation of Miers?
For the moment, neither. As should be clear from my posts on this issue, I’ve been disappointed in the nomination, and I have serious concerns that might lead me to join the growing coalition of pundits and bloggers calling for the withdrawal or defeat of her nomination. But I could still be convinced that she has the right stuff to be a good Supreme Court Justice. For the moment, count me among the “show me” coalition.
Is Miers an unqualified hack?
Don’t be ridiculous. Go read Beldar, who has been leading the effort to get the facts out in defense of Miers. This isn’t Michael Brown here; Miers is a tremendously accomplished person. She had a long and successful career as a commercial litigator, representing numerous blue-chip clients and eventually being elected the managing partner of a 200+ lawyer firm and seeing it through a merger with another firm of similar size (Beldar well explains what this involves). She was also the president of the State Bar of Texas; as Beldar points out, membership in the State Bar is mandatory in Texas, and the bar and its presidency is a big deal within the state, even aside from the role it gave Miers in the ABA. And, of course, she’s been a close advisor to the president for five years and White House Counsel for the past year. The staff secretary and White House Counsel jobs may not be glamorous, but they involve endless grueling hours; these are not jobs you give to a drinking buddy of the president. Miers’ other experiences, heading the Texas Lottery Commission and being elected to the Dallas City Council, aren’t big deals in political terms, but both involved real responsibility, and she juggled them while maintaining a full schedule as a practicing lawyer. And all this is particularly impressive when you consider that she was the first woman at her firm and, by all accounts, not someone who entered the profession with a lot of family or other connections.
So, yes, Miers has had an impressive career. She’s hard-working and competent; she’s unquestionably well-qualified to head a Cabinet department and clearly well-suited to be a district judge; and I wouldn’t bat an eye if Bush appointed her to sit on a federal Court of Appeals. But the Supreme Court is different, and I do have real concerns that we haven’t been given an adequate basis to conclude that Miers is qualified for a life-tenured position on a Court from which there is no appeal.
Aren’t the objections to Miers just elitism?
First of all, if being an elitist means demanding excellence, I plead guilty. The “elitism” charge, to the extent it is backed up by any reasoning, comes from two quarters. Hugh Hewitt has argued that it’s unnecessary to have Justices who have extensive constitutional law backgrounds, because Con Law isn’t that hard; I address that below. And Beldar argues that people who sneer at Miers’ resume are using an unduly constricted view of what experiences make up excellence in law practice – that there are plenty of great lawyers in private practice who didn’t go to Harvard or Yale and haven’t written law review articles.
I’d agree with that, in the abstract, but the debate here isn’t about commercial litigators in the abstract, it’s about one particular lawyer.
Let’s make this clear:
I’m not bothered by the fact that Miers didn’t go to an elite law school.
I’m not bothered by the fact that Miers didn’t clerk for a prestigious judge.
I’m not bothered by the fact that Miers has never been a judge herself.
I’m not bothered by the fact that Miers has never written or said anything persuasive in public about the Constitution.
I’m not bothered by the fact that Miers’ name shows up as counsel in barely more published opinions on Westlaw than mine, in three times as many years in practice.
I’m not bothered by the fact that Miers has, as far as I can tell, spent the vast majority of her time over the past decade away from the courtroom, doing things besides litigation.
But I am bothered quite a bit by all of those facts when taken together, and it’s hard to think of too many examples of good Justices about whom all of those things were true. That’s the source of unease here about Miers’ qualifications – it’s not one thing, it’s the whole package taken together.
Doesn’t Miers’ experience as a successful commercial litigator qualify her for the Supreme Court?
This has been one of Beldar’s big themes, but I just can’t agree with him. As a securities and commercial litigator myself, of course, I have great respect for the complexity of a lot of commercial practice. And as I’ve stressed before, having a Justice experienced in practicing law at the ground level is a great thing. But just saying that she was a success in private practice doesn’t answer the core question about her qualifications.
Beldar quotes people saying Miers was/is a sharp lawyer, good with juries and cool before judges. But what kind of sharp lawyer? You see, there are really three distinct skill sets involved in being a successful commercial litigator – being a “law” person, able to spot legal weaknesses in an adversary’s position, make sense of complex or conflicting caselaw and assemble clear and concise arguments; being a “fact” person, good with live witnesses and juries; and being a good negotiator, skilled with the give and take that makes up the discovery and settlement processes.
But there are certainly plenty of people who succeeed as litigators without mastering all three. Any lawyer can tell you that they’ve been in a case with lawyers – as adversaries or co-counsel – who had big names, long track records of success, and big bank accounts, and discovered that their briefs or their arguments in court were sloppily reasoned and poorly presented.
We know Miers is said to be a good “fact” lawyer; the president and others have marveled at her skills in deposing witnesses. And the fact that she was named managing partner of her firm strongly testifies to her skills as a negotiator. But what we lack is proof of her skill at the legal reasoning and persuasion. A major part of a Supreme Court Justice’s job is persuasion – persuading other Justices, persuading lower courts (who will decide how broadly or narrowly to read an opinion), persuading future Justices deciding to extend or overrule precedents. Where’s the beef?
If Miers had been a judge or academic (or blogger) for ten years, we could read her stuff for ourselves and judge. And if she was a brilliant appellate advocate like John Roberts, we’d be hearing the same stories we heard about Roberts: his brilliance at oral advocacy, his ability to grasp complex cases with minimal preparation time, examples of great arguments he presented. But the simple fact that she’s won a handful of complicated cases in 30+ years and moved up the professional ladder isn’t proof enough by itself. I’m waiting for more.
Ultimately, where Beldar and I disagree is that I believe that not all successful attorneys who are good at trying cases and taking depositions are necessarily, simply by that fact, cut out for work as an appellate judge, any more than every appellate specialist is cut out to try cases. The best people can do both, yes, but that doesn’t mean the skills involved are automatically transferrable.
That’s why I would ask if we can learn more about Miers’ private practice. Has she handled a large number of cases presenting complex legal issues, like nationwide class actions or antitrust cases? Was she regarded by colleagues and peers as an expert in particular areas of the law – i.e., was she interested in doing the work of making sense of bodies of law and keeping up on them and how they play out in different fact settings, rather than just grabbing the cases that help your position in today’s case and then going her merry way? We don’t know.
See here and here for more on Miers as a writer. More on Miers here (via Orin Kerr), here, here, here, and here.

Yes, It Matters Whether Miers Knows Constitutional Law: A Response to Hugh Hewitt

Does it matter that Harriet Miers appears to have almost no record of experience litigating, adjudicating, or otherwise staking out positions on constitutional issues? I say it does.
First of all, the Court’s role in deciding questions of constitutional law is hugely important, the most important part of its job. Yes, as a practicing lawyer I am well aware that constitutional issues are actually a minority of the questions on Court’s docket, and that the Court’s constitutional decisions are at least arguably not the part of the docket that directly affects the most people (although many areas of law that have broad-ranging impacts, like criminal law, election law, abortion and the effect of racial preferences on employment and educational opportunities, are shot through with constitutional questions).
More to the point, as I noted with my “how hard is this to change” test, the Court’s rulings on constitutional questions have outsize importance because they are the most difficult rulings to undo – especially rulings using the Constitution to take issues away from the democratically elected branches – and because they often involve directly overturning acts of the people’s elected representatives.
Hugh Hewitt, who has been working as hard as he can to put back together the Humpty Dumpty of conservative support for Harriet Miers on the Supreme Court, argues that the thinness of Miers’ experience as a constitutional lawyer is is not a problem:

The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task[.]


The other argument is a subdivision of the “not smart enough” argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.
From this I especially dissent. Simply put: It isn’t that hard. It is wrong to argue that it is so. It is anti-democratic to argue that it is so. The Left wants you to believe it is so, and the center-right should resist that.


ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observors.

Orin Kerr thinks this is a cop-out:

[C]onstitutional law is a lot harder tha[n] . . . Hugh Hewitt will admit. It’s easy to repeat platitudes about how a judge won’t “legislate from the bench” or will just “follow the Constitution.” But the hard part is sticking with those principles when they no longer comport with the results you really really want to reach.
To be fair, I agree with Hugh that Supreme Court Justices don’t need to be academic super stars. But they do need to be reasonably self-aware. And my guess is that self-awareness tends to come most often from the experience of testing and evaluating arguments again and again, whether as a judge or in some other forum.

The question of how “hard” Con Law is in the abstract is besides the point. While I have my concerns – which I’ll discuss separately – over what exactly Miers’ career tells us about her facility with arguments about the law, we can agree that smart people can learn the ins and outs of each issue before the Court as it comes up based upon the briefs. Much of the work of the Court is done by law clerks with minimal experience, after all – but they’re smart people, and they learn the stuff.
No, the core problem with appointing a Justice who is – as Miers appears to be – learning Constitutional Law on the fly is not that it’s too hard to understand the issue at hand in a particular case. The problem, as Hugh should know from teaching Con Law, is that there are connections between the various areas of constitutional law, ways easy and difficult to foresee in which a decision on one question can affect decisions in other areas, whether in terms of substantive doctrine, overarching philosophy, or the myriad issue sub-parts that cut across many different areas of the law: respect for precedent; deference to legislative facts, to state courts, and to findings of administrative agencies; the use of balancing tests and bright line rules; the uses and abuses of foreign law; the significance of the intentions as opposed to the effects of legislation and of popular referenda; the meaning of “rational basis” and application of varying levels of scrutiny; the propriety of exclusionary and other prohylactic rules; the role of horizontal federalism; the special roles (if any) of academic freedom and of the organized press; and many others. A Justice who decides today’s case without regard to its broader place in the constitutional scheme is, in effect, a glorified law clerk, applying brainpower but not the wisdom that comes from seeing the whole field of constitutional law.
Indeed, the entire benefit that comes from appointing a Justice who has been a litigator, a legislator, the head of a business and an advisor to the President is supposed to be the nominee’s ability to see beyond the individual intellectual issues in a case to how the result will play out in the lower courts, the broader legal profession, and the outside world, where it needs to be implemented. After all, as any practicing litigator knows, even an offhand footnote in a Supreme Court opinion can spawn a whole body of law in and of itself, one the Court might take decades to return to.
But if Miers is indeed as blank a slate on constitutional questions as she now appears, that benefit is significantly blunted as to the most important part of the Court’s docket, because there is a real concern that, however smart she is, she could have trouble understanding – as someone experienced in the field would – how the reasoning of her decisions will affect the disposition of other cases on other days, in the Supreme Court and in lower courts.
Maybe Miers has a well-thought-out view of many aspects of constitutional law; maybe we will yet be surprised. But Hugh Hewitt’s argument that it doesn’t even matter if a new Justice knows the pre-existing 200+ year-old body of consititutional law is misguided, unrealistic, and detatched from the way in which the Court actually operates and in which its decisions play out in the real world.

Rogue Prosecutor

I’ve been delinquent on catching up on the revised indictment of Tom DeLay; hopefully more on that later. In the meantime, go read former federal prosecutor Andrew McCarthy, though, on why “[t]he investigation of DeLay, a matter of national gravity is being pursued with shocking ethical bankruptcy by the district attorney — by Ronnie Earle.”
I’ll make this promise: whatever the outcome of the Valerie Plame investigation, and whether or not Patrick Fitzgerald takes any steps in that investigation that warrant criticism, I will not argue that Fitzgerald is some sort of runaway rogue prosecutor. Everything we know about Fitzgerald (a former colleague of McCarthy’s, among others) suggests that he is a tough, aggressive, but fair-minded guy.
Nothing we know about Earle says the same.

The Miers Files

For those looking to pick over the slender public file of Harriet Miers’ writings, this link (via NRO) is a good place to start.
Then there’s Beldar – just keep scrolling, because you are not part of an intelligent discussion of Miers’ credentials if you aren’t reading Beldar, who is doing his best to defend the honor of Texas commercial litigators. This post has some hard information on some of Miers’ cases. Beldar pulls 19 reported opinions from Westlaw where Miers’ name appears; even granting that state trial courts rarely publish opinions, at least in Texas, that does seem a bit thin to me for 30+ years of practice (the same search for me would turn up 14 opinions, and I’ve only been in practice for 9 years).
I remain unconvinced that Beldar has proven that Miers is qualified for the job, but I’m keeping an open mind, and I think he’s certainly made some good points; we’ll learn more at the hearings, and hopefully before then.

The Miers Pick: Some Things Are Worth Getting Upset Over

As Leon H notes over at RedState, some folks supporting the Miers nomination seem to think that those on the Right opposing the nomination have lost their perspective. Now, I wouldn’t recommend leaving the party, or staying home for the next election, over this. But an arguably bad Supreme Court pick is certainly worth getting agitated over.
My question #1 in deciding how mad to get about a decision by our elected officials is, “how hard will it be to change this?” The budget is stuffed with highway pork? Bad, but there’s another budget next year. The budget is stuffed with new programs? Worse, since new programs rarely go away. The budget is stuffed with new entitlements that put a permanent drain on the federal fisc? Now, I’m gettin’ angry. But even then, all of those are things a new president could change, if he or she had the votes in Congress.
But Supreme Court Justices essentially can’t be removed, and their decisions live on for decades or centuries after they are gone (many areas of Constitutional jurisprudence are, to this day, the products of John Adams’ nominations). With the (possible) exception of war, no presidential choice has as long-lasting effects as the choice of Supreme Court Justices. What was worse for America – Jimmy Carter in the White House for 4 years, or Harry Blackmun on the Supreme Court for 30? I’m not sure I’d pick Carter; at least after 4 years, we got to have another election, whereas after Breyer was confirmed we had to wait 11 years for another Supreme Court vacancy, and these two latest vacancies are to replace judges confirmed in 1972 and 1981. And nobody now requires presidential candidates to promise not to change anything Jimmy Carter did.
As I’ll hopefully explain in more detail shortly, I have not, personally, concluded that Harriet Miers should not be confirmed by the Senate, nor have I even concluded that she would not be a wonderful Supreme Court Justice; rather, I’m still waiting to be convinced on her merits. But I can’t fault anyone for complaining about the nomination. This is, to many of us, the #1 or #2 reason (behind only the war) for supporting Republicans for the White House. If Miers is another Kennedy or O’Connor, we will be grumbling over our disappointment for decades. If she is (as I very much doubt) another Souter or Blackmun, we will rue this nomination for the rest of our lives. And even if she is another Thomas, we will be sad if she steps down in 20 years, sad that a younger candidate might have held the fort for longer.
So, yes, this is very much an issue worth getting exercised about. We will live with its consequences all our days, without a second opportunity to do anything about it.

Poor Aunt Harriet

One-liner of the week, from Jay Leno last night: “President Bush says that he knows Harriet Miers won’t change in 20 years. 20 years ago she was a Democrat! And Catholic!”
UPDATE: Runner-up, from an email received by Megan McArdle:

I just received a missive from some activist group I’ve never heard of, urging me to contact Congress and the White House to urge the appointment of a qualified “state or feral judge” to the Supreme Court.

It’s Miers

So, President Bush has chosen White House Counsel Harriet Miers for the next Supreme Court opening. First of all, a hat tip to David Frum; as I noted back in July, Frum was the first to float Miers’ name as a dark horse pick for the Court. Miers is profiled here by the Washington Post.
Color me less than thrilled. Yes, I know that she’s known to be pro-life; in fact, that’s nearly the only thing that seems to be known for certain about her views, given that in 1993 she led an unsuccessful battle to change the ABA’s position on abortion (ht: ConfirmThem). And I know that, as the White House is already pointing out, 10 of the last 34 Justices have been non-judges appointed from within the executive branch, including William Rehnquist, Byron White, Robert Jackson, and William Douglas.
But there are a large number of reasons to be less than thrilled with Miers either as a nominee or as a prospective Justice. First, she’s not young; at 60, Miers is older than almost all of the widely-discussed candidates. Second, Bush passed over a number of people well-known to be brilliant academics, appellate advocates and/or appellate judges to get to her, including Michael McConnell, Miguel Estrada, J. Michael Luttig, Danny Boggs, and Edith Jones. Miers may well be highly intelligent, but she has no such reputation. Third, Bush also passed over experienced trial judges – Jones, Emilio Garza, Edith Brown Clement. There’s actually a lot to be said for having a Justice who has trial-level experience, since the Court does, after all, sit atop a system of courts, and a Court with nobody who has sat at the point where the court system actually interfaces with the general public – where factual evidentiary records are developed, juries are instructed in the law, injunctions are granted, and criminal defendants sentenced – is a Court that lacks an essential perspective on its role in the system of justice. Of course, Miers was a commercial litigator for years, so that’s a fair substitute for experience as a trial judge on the civil side, but I’m not sure if she has any criminal experience. And much of her career path has been spent as an administrator, running a law firm, running the Texas Bar, running the Texas State Lottery, and working in the White House for five years. She presumably hasn’t seen a courtroom in a decade.
Miers may well play well on TV, as John Roberts did. But Roberts entered the game with a powerful advantage: his unchallenged reputation for brilliance and high qualification. Her personal story – a never-married woman who worked her way up through male-dominated Texas law firms to become the first president of the Texas State Bar, breaking lots of ‘glass ceilings’ in the process – could be an inspiring tale to feminists, but since they are the #1 group automatically opposed to any Bush nominee, Miers’ political benefits should be blunted.
Even Frum isn’t overly impressed:

I have to confess that at the time, I was mostly joking. Harriet Miers is a capable lawyer, a hard worker, and a kind and generous person. She would be an reasonable choice for a generalist attorney, which is indeed how George W. Bush first met her. She would make an excellent trial judge: She is a careful and fair-minded listener. But US Supreme Court?
In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions – or to stand up under the criticism that a conservative justice must expect.

By picking an advisor known well to the president but without well-known views or qualifications in the larger legal community, Bush is asking us to trust him. And, personally, I do trust him. But for the public at large, “trust me” works a lot better for a president with high approval ratings and lots of political momentum than for a Chief Executive who has been off his stride and on the defensive much of the year. Especially given that Miers’ selection plays right into the hands of the Democrats’ recent drive to complain about Bush appointing “cronies.” I just can’t think that Harriet Miers was the best person for the job.
UPDATE: Krempasky notes that Miers gave $1,000 to the Al Gore for President campaign in 1988, and another $1,000 to the Democratic National Committee in November 1988.
SECOND UPDATE: I should note that Bush calls the bluff of Harry Reid, who said he wanted a nominee who was “more of a trial lawyer.”
Captain Ed is less than impressed. David Bernstein is, perhaps, more incisive as to Bush’s motivation:

What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR’s primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn’t the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR’s nominees moved the USSC generally to the Left.

THIRD UPDATE: John Hinderaker is disappointed. K-Lo says everybody’s depressed about this one and thinks the Christian Coalition will balk at Miers because she ran the lottery. Why Jonathan Adler thinks Miers “will likely provoke little Democratic opposition” is beyond me. NRO, Hinderaker, Morrissey, RedState . . . if Hugh Hewitt is underwhelmed (as I suspect he will be), who’s left to defend the Administration on this one?
FOURTH UPDATE: John Hawkins of Right Wing News sets the bar for disappointment: “a Bush crony with no real conservative credentials . . . To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection.”
FIFTH UPDATE: MaxSpeak has the text of today’s Harry Reid statement:

In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court.

I agree with that, although I’m withholding judgment on what she brings to the table until I hear more about what exactly her litigation experience consisted of. Meanwhile, Hugh Hewitt finds it in himself to back Bush on this after all. My take: the best conservatives can hope for is that Miers is a follower, not a leader.


Mr. Chief Justice Roberts. The “yes” votes included all 55 Republicans, every red-state Democrat but three (Minority Leader Harry Reid, presidential candidate Evan Bayh, and liberal warhorse Tom Harkin), every light-blue-state Democrat but three (Debbie Stabenow of Michigan and Maria Cantwell of Washington, both up for re-election in 2006, and the retiring Mark Dayton), and even liberal stalwarts like Chris Dodd, Carl Levin, and Patrick Leahy.
UPDATE: Chief Justice Roberts:

“I view the vote this morning as confirmation of what is for me a bedrock principle, that judging is different from politics.”

Amen to that. I also see that among the honored guests at the swearing in were the widows of Thurgood Marshall and . . . Potter Stewart? He’s been dead for 20 years (Stewart was replaced on the Court by Justice O’Connor). But apparently his wife is still with us.

Presumed Innocent Until Proven Guilty

Another thing on CNN last night was a panel discussion on Larry King on the DeLay indictment, featuring, among others, left-wing pundit Katrina vanden Huevel of the Nation. King gave her a lot of rope, but at one point he was badgering her repeatedly with the question, “but you do presume that DeLay is innocent until proven guilty, right?”
Too many people misunderstand the role of the presumption of innocence. It’s a legal rule, which applies to juries, instructing them not to find guilt without sufficient evidence, and to start by assuming the defendant is innocent until that evidence has been presented. In that context, of course, it serves a valuable role.
But the presumption of innocence, even as a social norm, shouldn’t preclude pundits – who after all get paid to look at facts and offer opinions about them – from saying they think a public figure is guilty, if the available evidence supports that conclusion. Vanden Huevel would be quite within her rights to explain why the evidence Ronnie Earle has on DeLay shows that he did what he’s accused of doing.
On the other hand, if the presumption of innocence means anything in the realm of opinion journalism, it means that you can’t assume someone is guilty just because the government says so; an indictment alone isn’t proof of guilt, especially when the prosecutor in question has a track record of indicting Republicans without a sufficient basis to do so.
So, if you want to argue that the evidence against DeLay shows he’s guilty as sin, go ahead. There’s nothing un-American about that at all; to the contrary, we all get to have an opinion about our leaders. But if you want to persuade anyone that he’s guilty, it has to be based on something besides the existence of the charges themselves.
UPDATE: A commenter notes that Democrats like to point out that Democratic Travis County DA Ronnie Earle has indicted more Democrats than Republicans. I’ll let John Fund, writing in today’s OpinionJournal’s Political Diary (subscription only – no link)
respond to that point:

His defenders point out that the 63-year-old [Earle] has indicted 15 public officials in Texas in the course of his three decades as a prosecutor, of whom 12 were Democrats. But that ignores the fact that until the mid-1990s, very few Republicans were elected to public office in Texas and many of the Democrats he prosecuted happened to be bitter adversaries of his.
Among them was Democratic Attorney General Jim Mattox, whom Mr. Earle indicted on bribery charges in 1985. He was found not guilty by a jury and went on to win reelection in 1986, but lost a bitter primary for governor four years later to Earle ally Anne Richards. Another target was Democrat Bob Bullock, the late lieutenant governor and state comptroller. After Mr. Earle conducted an exhaustive investigation of his office but failed to return an indictment, Mr. Bullock compared the prosecutor to “a little boy playing with matches” and sought to curb his ability to conduct open-ended investigations of state political figures.

Reading between the lines here, Richards was and is a liberal, and Bullock was known to work across party lines with George W. Bush, so I’m guessing that some of this history is about the spilt between the Richards/Jim Hightower liberal wing of the Texas Democratic Party, and the rapidly-dying conservative wing that produced people like Martin Frost, Phil Gramm, and Charles Stenholm, with Earle being allied with the liberals. Maybe someone more knowledgeable on Texas politics can weigh in on this.

My Choice?

Well, I took the quiz, but I wasn’t expecting this answer:
U.S. Court of Appeals, Sixth Circuit, appointed by
G.H.W. Bush, 61 years old
An Ohioan, well regarded and respected for her
intellect and judgment, Batchelder could be a
nominee meant to stifle Democratic criticism.
Batchelder is considered a nominee who could
appear as thoughtful, charismatic and
intelligent in Senate hearings as Judge Roberts

New World Man presents: My favorite candidate for the Supreme Court
brought to you by Quizilla
Actually, I don’t know an awful lot about Judge Batchelder, so I’m not being critical – she’s just not one of the people I’ve been thinking about for this vacancy.
Via New World Man