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The Court and the Legal Culture:

Orin rounds up the conservative response to Miers. The chronic complaint, and one that I share, is that this amounts to a squandered opportunity, one that is heightened by the fact that this follows on the heels of the Roberts appointment. So allow me a quick comment on my concerns about the Roberts-Miers ticket.

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. Thomas and Scalia have been doing the same thing for some time now, with their view of the law. This is, of course, precisely why Bork was taken down as well. Rehnquist, by contrast, may have changed the voting patterns of the Court but did not change the legal culture through intellectual leadership. Even worse, pick someone who supposedly "votes right" but has no developed judicial philosophy, and soon you have someone who doesn't even do that (Blackmun, Souter, etc.).

Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right." But neither of them appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture. I suspect that this is the source of the conservative outrage about Miers. In addition, historically those who come to the Court without a clear jurisprudential philosophy almost always end up moving left, which may add still further to the concern about her apparent lack of intellectual heft. Simply because she has stood up to the political criticism that she has received working in the White House does not mean that she will be able to withstand the intellectual criticism that she will receive. Writing a persuasive Supreme Court opinion that will hold a majority is a whole different ball game from stonewalling the Washington Post reporters.

Put another way, looking at Miers resume, I can see nothing in her career or her resume to suggest that she has ever thought in any meaningful manner about larger questions of law or judicial philosophy. She went to a perfectly good law school, but during an era where it is hard to believe that she was thinking much about larger questions of law. She had a distinguished legal career, but from all appearances, one in which she would have rarely had the opportunity or inclination to think seriously about the Court or its role in American society. In private practice, she proved herself most distinguished, it appears as an administrator and manager at her law firm--useful skills, but different from those needed on the Court. Her practice at the various iterations of the Lidell firm in Texas appears to be a conventional trial litigation practice. Finally, her primary responsibility during her time working in Washington has been as a Staff Secretary--again doing management and administration, not intellectual heavy-lifting. Or, as we say in these parts, doing "process" rather than substance (some might say less charitably, "a glorified paper-pusher"). There is simply nothing in her background to suggest that she will exert any intellectual leadership inside or outside the Court. At least Roberts, as a lawyer was engaged in the big intellectual issues of the day, even if his judicial philosophy is more incremental than systematic.

At the very least, she will have a heck of a lot of learning to do and will be forced, at the age of 60, to think about many, many difficult issues that she has never confronted in her entire life. I suppose it is possible for a 60 year old to start what amounts to a completely new career and learn a completely new set of skills for the first time, but.... She hasn't even been practicing law for many, many years, but rather serving in either policy or administrative roles. At the very least, if she is to ever exercise any intellectual leadership of the there is going to be a substantial learning curve that suggests that it will be several years before she has anything meaningful to say. This in contrast to Luttig, McConnell, Brown, Jones, Batchelder--well, at least 100 other people who are at least as well-qualified, but who would not need on-the-job training. It is really quite difficult to imagine that she will ever be in a position to exercise any substantial intellectual leadership of the Court.

These appointments thus seem to confirm a common criticism of this President--that he is uninterested in ideas and interested only in power. While they may both turn out to be perfectly fine Justices, both Roberts and Miers appear to be both uninspired and uninspiring in terms of providing intellectual leadership on the Court. The Administration seems to be narrowly obsessed with winning minor tactical victories (here, an easy confirmation of a stealth candidate) while consistently failing to follow-through with meaningful long-term strategic victories (an opportunity to change the legal culture).

In the end, of course, the lack of a strategic vision means that even the tactical victories tend to be reversed (for instance, temporary tax cuts will likely fall victim to the inability to control spending). As Reagan understood, you have to first have the long-term strategic vision in mind so that you know when to make tactical compromises. Ideas are the long-run motivating force of history. Tactics without strategy, by contrast, leaves you rudderless.

Picking someone who "votes right" without exercising intellectual leadership is a squandered opportunity. Even worse, if you try to pick someone who votes right without knowing why, soon you may have neither.

Update:

I have been rightly rebuked by Orin and others for seeming unduly harsh on Roberts, and I certainly did not mean to imply that Miers and Roberts are of similar experience or ability. Let me make this clear--Miers is no Roberts, and I recognize that. What I was trying to say in the first post, perhaps inelegantly, is that although Roberts is impeccably qualified and brilliant, his judicial philosophy remains somewhat of a blank slate and conservative enthusiasm was somewhat muted, and that most seem to believe he would be more in the Rehnquist mold than the Scalia/Thomas mold. The implicit deal, as conservatives seem to understand it, was to go along with Roberts for Chief, who seems to be excellent but is not exciting among conservative stalwarts, and then the second nominee would be in the McConnell/Jones/Luttig mode.

So, I simply meant to indicate that I think the backdrop of the relatively temperate enthusiasm among conservatives for Roberts on the grounds that I argued, may help to explain the extreme conservative frustration with Miers. I certainly did not mean to imply in any way that Roberts and Miers were comparable. My apologies for the lack of clarity.

Scott Scheule (mail) (www):
Don't forget her age. She's 60, making her appointment seem more in line with short-term, not long-term, goals.
10.3.2005 3:25pm
Anthony Sanders:
Here's my guess as to why she was nominated. The only "issue" that seems heavy from her past is that she has been involved in the pro-life community. I would bet that about the only legal issue, aside from the War on Terror, that the President cares about is abortion. In their years of association it's not unlikely that the President and Miers have discussed Roe v. Wade, and the President has probably gotten a sense that she would vote to overturn it. Thus, he picks her, as she'll be strong on the 1 or 2 legal issues he really cares about and she probably won't be filibustered. Perhaps he hopes that once her pro-life bona fides are learned by Republicans at large, opposition to her will quiet down. After that more "big picture" conservatives and libertarians will be left out to dry. But, at Professor Zywicki says, Bush doesn't really care about them.
10.3.2005 3:35pm
John S (mail):
Maybe it's even more short term than that. According to Stephanopolis, Fitzgerald's investigation may involve Bush and Cheney.

http://thinkprogress.org/2005/10/02/bush-directly-involved/

Given Roberts propensity to uphold executive power and the , bfact that Bush appointed him and Miers obvious, fawning loyalty perhaps he is simply stacking the court to defend himself. Does anyone think she'll recuse herself from any of the critical cases?
10.3.2005 3:37pm
OrinKerr:
Todd writes:

"But neither [Roberts nor Miers] appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture. . . . While they may both turn out to be perfectly fine Justices, both Roberts and Miers appear to be both uninspired and uninspiring in terms of providing intellectual leadership on the Court."

Todd, how can you say that about John Roberts? I'm confused. I think Roberts is the best suited of all to provide intellectual leadership that will move the legal culture. My sense is that he is now the smartest Justice at the Court, and also the most likeable. He is not an ivory tower theorist, but I think that is exactly why he is best suited to provide intellectual leadership.
10.3.2005 3:38pm
J Mann (mail) (www):
If you were feeling Machiavellian, you might decide that Bush's interests are best served by appointing someone without the strong ideas or backbone necessary to withstand the force of Scalia's and Thomas's ideas.
10.3.2005 3:41pm
Jackjohn (mail):
I was just thinking that, J Mann.
10.3.2005 3:47pm
mikemccann (mail) (www):
Todd, that is an outstanding post. I don't think liberals or conservatives should be pleased with this nomination. Putting loyalty ahead of talent and acumen is bad governance, regardless of political party. And it discredits other people in government who were picked for their talent and acumen. Just a disappointing day in the legal academy.
10.3.2005 3:51pm
Craig Oren (mail):
Scalia and Thomas have been adding intellectual depth and heft to a certain view of the law? It seems to me that neither has had much influence.

The appointment of Miers surprises me: at 60, she is a little old. OTOH, like Roberts, she has no paper trail to ruin her. And I doubt that a Supreme Court appointment will do much to hurt Bush's poll numbers. He may, in fact, look better to moderates and to women. Conservatives have no place to go; they picked Bush as their horse long ago.
10.3.2005 3:53pm
Gordon (mail):
As Anthony Sanders says:

After that more "big picture" conservatives and libertarians will be left out to dry. But, at Professor Zywicki says, Bush doesn't really care about them.


I for one, wouldn't mind "big pcture" types being left out to dry. Overturning Roe v. Wade is one thing - going back to Lochner-era dogma is quite another. I doubt if all of the "social conservatives" in the Republican base are interested in going back to work for twelve hours a day at the whim of their employers ...
10.3.2005 3:57pm
David Sucher (mail) (www):
"...He is not an ivory tower theorist..."

My understanding is that Roberts has limited experience in "the real world." Even as an attorney in so-called private practice, he spent his time arguing in appeals courts.
While not a theorist -- as if there is some problem with thinking -- his entire career has been in a very narrow and cloistered world.

Did he ever deal with a client? (No, I don't mean corporate counsel for a Fortune 500.) Would he know how to find the front door of a court house?

He is a very smart guy bit I do not see much practical experience in the world.
10.3.2005 3:59pm
Nicholas Buccola (mail):
I am very disappointed in this nomination. While nomination of someone clear conservative-libertarian credentials like Janice Rogers Brown would have been politically reckless, I think Bush really missed a chance of putting a strong constitutionalist on the Court by passing up Batchelder. Bush's choice is not, however, surprising. He is a big government conservative and, as such, it would not be in his interests to appoint a believer in federalism like Batchelder. With two of the three dissenters from Raich gone from the Court, the future of federalism is foggy at best, dark at worst. For those who have not already done so, I recommend you listen to Batchelder's recent Constitution Day lecture at ashbrook.org
10.3.2005 4:00pm
Gordon (mail):
The instant hysteria on the right provoked by Ms. Miers' nomination shames even the purple prose we heard from the left regarding John Roberts. What a bunch of whining babies.
10.3.2005 4:11pm
Jason Sorens (www):
CBS News legal analyst Andrew Cohen predicts a nasty confirmation fight. It's interesting, and telling, that a nonpartisan analyst like Cohen would go out on a limb with statements such as:


There are many reasons why Miers is a controversial — perhaps even a doomed — nominee and none of them have to do with any legal or judicial philosophies she may have. She has no judicial experience. She does not possess a world-class intellect like her would-be predecessor on the Court. She is a Bush crony at a time when there already is great criticism of the White House for placing into high office friends whose loyalty to the president overshadows their professional competence. And if you thought Roberts offered the nation little in the way of his true legal and judicial philosophies wait until you find out how little of a public record Miers has.


It will be interesting to see what the polls say about this nomination in a couple of days. Right now it looks as if this nomination could become the flashpoint for pent-up conservative and centrist frustration at the Bush Administration.
10.3.2005 4:20pm
jgshapiro (mail):
Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture.

The trouble with this post is its implicit assumption that incrementalism is not a judicial philosophy, but rather a reaction to originalism on the right and living constitutionalism on the left. Seems to me that many judicial conservatives such as Frankfurter, Harlan II and Friendly (as distinguished from political conservatives, such as Scalia, Bork and Thomas), would disagree.
10.3.2005 4:21pm
Steve:
There will not be a major fight over Miers unless some conservative faction rebels. The Democratic opposition, on its own, will be no more serious than it was for Roberts.
10.3.2005 4:22pm
Anonymous Coward:
She went to a perfectly good law school

And I shouldn't get that Mercedes because I have a perfectly good mid 1990s Honda hatchback.
10.3.2005 4:24pm
jgshapiro (mail):
Another problem with this post -- didn't Byron White essentially move to the right once he got on the Court? Wasn't he breathing the same vapors, and reading the same newspapers, as Blackmun and Souter?

Maybe White was always conservative/libertarian on social issues (Roe, Bowers) and crime (Gregg), but I seem to recall reading that Republicans were worried at the time of his nomination that he would be too liberal once he got on the Court. He turned out to be liberal on civil rights and commerce clause issues, but not much else.
10.3.2005 4:29pm
arbitraryaardvark (mail) (www):
If Miers backs up Roberts, which seems likely, they are in a position to form a 5 member caucus. It would be in Kennedy abd Scalia's interest to be part of that, no? They can then do what they want, and that's a team not exactly lacking in smarts. She's a workhorse. Eisenhower picked Brennan because he was a good adminsitrator - with unexpected results. The new court will be in position to change the legal culture all it wants. What it wants, what Roberts and Miers want, I don't yet know. But this is the scenario Bush-bashers were afraid of - two strong choices that can dominate the court.
10.3.2005 4:45pm
Gordon (mail):
Jason Sorens says:

Right now it looks as if this nomination could become the flashpoint for pent-up conservative and centrist frustration at the Bush Administration.


Jason, we've obvious heard some fulminations from "conservatives." Please explain how "centrists" plan to fulminate against Ms. Myers.

Unless you consider Bill Kristol and the Weekly Standard to be "centrists." Perhaps in some parallel universe they are.
10.3.2005 4:46pm
Jason Sorens (www):
Gordon says:


Please explain how "centrists" plan to fulminate against Ms. Myers.


Much of the angst over Katrina and Brown seemed to be coming from "centrists" for lack of a better word - nonideological Americans. If the "cronyism" charge sticks to Miers, then I can see "centrist" disgust at the nomination emerging.
10.3.2005 5:12pm
Perseus (mail):
"Conservatives have no place to go."

As Karl Rove learned in 2000, conservatives can--and do--stay home. If Miers (or Roberts) turns out to be too "liberal," this issue will become all that much more important in the '08 Republican presidential primaries.
10.3.2005 5:57pm
jeanneb (mail):
I think a lot of people are missing the forest for the trees. When conservatives argue for a judicial appointee who "shares their values", aren't we guilty of the same "politiciation of the judiciary" that we find so disturbing in our liberal opponents?

Bush has said consistently for 6 years that he would appoint judges who respect the constitution and will not legislate from the bench. He said it several times just this morning.

I think Bush sees a return to a "constitutionalist" judiciary as the BEST WAY TO DEFEND CONSERVATIVE VALUES. The judicial branch has become far too politicized, usurping to itself the power given to the legislative and executive branches (making law---most often, liberal law). You might say Bush is going after the disease, not just the symptoms.

The mistake everyone is making is assuming Bush approaches the judiciary like Schumer does. Remember just 5 years ago when Schumer announced that, in violation of past precedent, Dems would begin evaluating judicial nominees by their ideology? We were outraged! How dare he?! But here we are...conservatives have fallen into Schumer's web and are now demanding an ideological test for a nominee.

Bush is trying to undo what the Schumers have done to the judicial branch. By ignoring ideology, while emphasizing serious legal scholarship and profound respect for the constitution, Bush is the anti-Schumer. And he trusts that a court which respects the constitution will be one which, by its nature, will respect and protect conservative and traditional values. I'm very impressed with the way Bush has approached these nominations.
10.3.2005 6:05pm
Gordon (mail):
Jeanneb: Thank you for a breath of common sense.

In all fairness to the conservative critique of Ms. Miers (in the few hours it has existed), the criticisms on this site seem to be of a much higher quality than those of the less academically inclined conservative world. For instance, Todd Zywicki above brings forward some significant questions as to whether Ms. Miers has any overarching judicial philosophy. Aside from the undertone of snobbery that Ms. Miers isn't enough of an intellectual, I think it is a valid criticism.

Also, now that Jason Sorens has explained his "centrist disgust" potential for Ms. Miers as related to the seeming patronage aspects of her appointment, it makes more sense, although I think a lot of centrists may also be relieved that President Bush hasn't appointed someone who will automiatically turn back not only many major Warren Court decisions, but also many major New Deal Court decisions as well.

But the bloviations of those like Senator Brownback, who has his own litmus test equally as nauseating as Senator Kennedy's ...
10.3.2005 6:14pm
Unnamed Co-Conspirator:
No Jeanneb, the difference is that the candidate favored by most conservatives won the presidential election, and so when conservatives expect that the president will do what he promised and appoint judges who share his philosophy, it's reasonable. When Democrats expect that a Republican president will appoint nominees who share the Dems' philosophy, well, that's not reasonable.

Tell me again how the Miers appointment suggests that Bush emphasizes legal scholarship? Seems that it's blatant cronyism, given a lifetime appointment to the highest court to a mediocre nominee whose biggest qualification is that she's Laura's old pal. Maybe O'Connor can withdraw her resignation.
10.3.2005 6:56pm
jeanneb (mail):
Given your sentence which starts "Seems that it's....", it doesn't appear that you're interested at all in hearing me tell it again. But I'll give it a try.

I think, after many years' association, Bush sees Miers as a constitutionalist who will not usurp the powers of the other two branches. I suspect she has a strong judicial philosophy in that regard. And Bush wants more voices like that in the chambers of the Supreme Court, arguing against judicially activist findings (and, presumably, voting that way).

Thus, I strongly disagree with Todd. I think the addition of Roberts' and Miers' voices to USSC deliberations will indeed "change the legal culture".

I reiterate: I think Bush believes by pulling the court back to its constructionist roots, he is providing the enviroment in which conservative polices can flourish (in the legislative/executive branches).
10.3.2005 7:18pm
Bill Dyer (mail) (www):
I'm sorry, but this post reads too much like something written by a law professor. I hate to use that in a disparaging way, but I am, because Prof. Zwicki's views are frankly disparaging toward practicing lawyers, and very unfairly so.

We've got a Court in which multi-way splits are common precisely BECAUSE too many of the existing Justices want "to try to change the legal culture." They all think they're the smartest thing since sliced bread, and they just can't stand to simply concur when they could preen instead. Result for the Nation: Mud, confusion, chaos, and drift.

Please, Professors -- get over yourselves, and remember that you don't have a monopoly as annointed high priests of the law. Quit being so snotty.

(Kudos, though, to Prof. V for avoiding that trap and for recognizing that the recent heavy weighting toward law professors and lower court judges is a deviation from the historical norm, in which actual practicing lawyers haven't been treated like morons ineligible for consideration and when things like bar leadership were considered good qualifications).
10.3.2005 7:30pm
Neil (mail) (www):
In some sense, if jennaB has Bush's logic right, a skilled "paper-pusher" (as Todd said) and a "judicial technician" (from an earlier thread) is EXACTLY what Bush wants.
10.3.2005 7:31pm
Jason Sorens (www):
In today's legal environment, would a "technician" bring the Court back to what jeanneB calls its "constructionist roots"? It seems to me that a technician would be highly deferential to stare decisis and seek a "middle ground" on judicial philosophy. I'm not expressing an opinion on whether this result would be a desirable one by some external standard, but it is understandable why so many conservatives would be disappointed with this outcome.


Some commentators have also noted that conservatives' negative response to the nomination seems to reflect their profound mistrust of Bush's judgment. That seems right to me; many conservatives I know have grown more deeply disillusioned with the administration over time, on issues such as spending, Social Security reform, and Iraq. For many, the lone remaining argument for "being a team player" has been the hope of radically conservative judicial nominations. If that last straw breaks...

10.3.2005 7:45pm
Concernedly Querulous:
My concern with Miers is that she represents the penultimate example of anti-democratic, closed government, coup d'etat style political rule. Bork, Ginsberg, and Roberts set the stage. Now Bush has hired the star. This is not a liberal or conservative issue. This is not a constructionist vs. living documentarians debate.

At what point did it become acceptable to make lifetime appointments to one of the three most powerful institutions in the governance of this country WITHOUT knowing what the overarching philosophy of the individual is? I'm not talking about whether someone would specifically overturn Roe v. Wade. What is WRONG with knowing an individual's general philosophy on abortion? Do they feel that the 2nd Amendment is an individual or collective right? Ad infinitum.

I'm not asking them to rule on the merits of a specific case. I'm asking them to express the very same opinions they would share at cocktail parties, honorarium induced speaking engagements, or in the publications normally expected of someone at this level. No, we don't want idealogues. But, how do you know whether someone IS an idealogue if they won't answer and you're not allowed to ask those questions which might provide SOME insight into their views?

My concern is not with whether Miers, or Roberts, might end up being a Souter. My concern is not with a litmus test of philosophy on any particular issue. My concern IS with appointing someone to one of the most powerful positions in this country without the public (forget senators or media analysts or news talk radio or special interests groups - I'm talking about the Public as a collective whole) knowing thing one regarding that individual's philosophies. So vague are the positions of recent nominees, we are left to wonder, not whether they are constructionists, anti-abortionists, or judicial activists, but whether there is a chance they could even believe in autocratic rule or evolutionary anarchy rather than democracy and representative government (and as you snicker - bear in mind that this is how some groups view things like border control, the Patriot Act, etc.; i.e., it is autocratic fiat rather than democratically arrived at policy making that controls government on these issues). After all, what do we actually KNOW about Roberts vs. what we KNOW about someone like Bork?

Currently, it would seem more rigorous an endeavor to get appointed as FEMA Director or Superintendent of National Parks than it is to be appointed a Supreme Court Justice. All the future Justice now seems to have to do is smile, remain calm, never publish, and say "I choose not to answer that question in that it, not to mention just about any issue, may 'someday' come before the Court."

Does that bode well for an "informed" populace and representative government?
10.3.2005 8:01pm
arbitraryaardvark (mail) (www):
The current charge is cronyism. That implies more than just drinking buddy; it suggests coconspirator. So I'm wondering what did she know and when did she know it? Abe Fortas was LBJ's lawyer who defended his stolen election to the senate. Wizzer White was an 'honorary kennedy' who knew JFK was screwing around literally and figuratively. Gonzales had the torture memos. Clinton and Nixon had inner circles of those who aided and abetted abuses of executive privilege. Do we know anything specific about Miers' role in Bush's more questionable activities? Before today, I didn't know anything about her. I'm not making assumptions one way or the other, in asking the question. Any dirt on her? I'll settle for rumour and innuendo. Imagine you've been hired by judicial watch, Chompshy, Michael Moore, Chuckie Schumer and Hillary, with a possible bonus from Soros. Anybody got anything?
10.3.2005 8:10pm
SimonD (www):
I agree with Prof. Zywicki's original post, without the appended qualifications about Chief Justice Roberts. Zywicki writes:
There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture...Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right."
I discussed this from another angle earlier today:
I think that what is making me uncomfortable is nominees who are more concerned with results than process.

Whether the results a Justice prefers are liberal or conservative, if they think in terms of results rather than process, they're just another flavor of dead wrong. This is not merely a rhetorical point, but one with real significance for the likely direction of the court. If one favors process, and follows process in a given case to whatever result is compelled by the law and the facts, then process does not really change in time. But, if you favor results, and are in the habit of choosing results and then finding a reason to come out that way, as you change - which, with age, we all inevitably do - the results you prefer may well change.

This, I think, is what happened with Justice Kennedy: he was a conservative when appointed, but he was a results-oriented conservative, not a process-oriented conservative. As he got older, and spent time in Washington, his proclivities drifted towards the center, thus so did his preferred results. Lacking a firm anchoring in process, he continued to do exactly what he did before: justify results through process, rather than reach results by process. Ditto Ms. Justice O'Connor. This would explain why the process-oriented originalists, Thomas and Scalia, have not disappointed the Presidents who appointed them, and the results-oriented conservatives, Stevens, O'Connor, Kennedy and Souter, have in every instance done exactly that.
Or, put another way:
In short: I'm not saying that she's a Souter. I'm saying...she has all the appearences of a Kennedy: today a conservative, who chooses conservative results and finds a plausible rationale - but in ten years, fifteen years, twenty years, who knows what results she might prefer. By contrast, I feel very confident in saying that in twenty years, Clarence Thomas will still be ruling essentially the same way, even if his personal proclivities have changed, and if Scalia can hold out that long, so will he.
10.3.2005 8:39pm
jgshapiro (mail):
SimonD:

Two points in response.

First, President Ford was not disappointed by Stevens and has said on many occasions that appointing Stevens was the best thing he did as president. You can agree or disagree, but Ford appears to have gotten exactly what he wanted out of Stevens.

Second, Kennedy votes with the conservatives *far* more than with the liberals. I won't attempt to list all of the cases in which he has cast the deciding vote to prove it (and it is not just on the insignificant cases, see Bush v. Gore, Grutter v. Bollinger, etc), but your post seems to indicate that unless the nominee votes with the conservatives on *every* issue, they are a disappointment. Is it really process conservatism you are after, or a more conservative version of results conservatism?
10.3.2005 9:40pm
Honestly Curious:
Beyond the mumblings from the White House, Newt Gingrich, and Orrin Hatch about how we will be statisfied over the long run with this nominee, how do we "know" whether she is conservative/moderate, process/results, or Souter/Kennedy? I'm not sure the hearings will be more than the media circus, soundbite opportunity that they seemed to have become. Without publications, without a history of decisions, and most likely without access to any paperwork/memos/reports generated in her last 10 years as the President's counsel - what exactly are we to base our support, concerns, acceptance, rejection, or questions on? I'm honestly curious. What besides the usual "spin" of her being a good person, an officer in the ABA, and a 'qualified' attorney do we know regarding an individual about to be confirmed as one of the nine most influential and powerful people in this country's legal system?
10.3.2005 10:22pm
Lorenzo (mail):
The one striking thing this nomination reveals is how the Republican party achieved majority status: it represents a spectrum of opinion ranging from far right to downright moderate.
Okay, it's not a full spectrum, but it's a lot wider than the democrats, who have narrowed their POV ever leftward. As a result, a democrat (Clinton) can nominate a hard lefty (Ginsburg) and be confident that that's exactly what he'll get, while Republican presidents, going back to Eisenhower, 'makes their nominations and takes their chances'.
While Bush undoubtedly thinks he KNOWS Mier's judicial philosophy, he - and we - are just going to have to wait and see. At least until she chooses her clerks.
10.3.2005 10:24pm
david blue (mail) (www):
aardvark: as you may have heard, Miers was involved in the Bush/National Guard business. She also had a non-Bush related Enron problem at her old firm. That's what I've seen so far.
10.3.2005 10:25pm
Honestly Curious:
So far, this is the only 'hard' information I can find - or, at least, as 'hard' (credible?) as you can find IF you rely on the internet. I wonder how much louder the conservatives are going to scream if the information about her contributing to Al Gore's 1988 campaign is true. Kind of a paucity of information for someone about to become one of the most powerful people in the United States...

[You'll have to rejoin the links since it won't post a "word" longer than 60 characters.]

She's listed as a reference for Joseph Jude Norton in his online curriculum vita...
http://faculty.smu.edu/jnorton/
JN_CV_Full-SMU-Jan_20042.htm

There's a 21 June 2005 Washington Post article about her at...
http://www.washingtonpost.com/wp-dyn/content/
article/2005/06/20/AR2005062001161.html

A bio (can't verify accuracy of) with some interesting tidbits can be found here...
http://www.fwsh.org/article.php?Harriet_Miers

An Austin American-Statesman article dated 3 October 2005 emphasizing her stance on minorities in the Bar can be found here...
http://www.statesman.com/metrostate/content/
gen/ap/TX_Miers_Bar_President.html

Here's her rather short, official biography from the U.S. State Dept. as of 19 November 2004...
http://usinfo.state.gov/special/transition/
transition_nominees/miers.html
10.3.2005 11:45pm
SimonD (www):
jgshapiro - I'll have to take at face value that Ford was pleased with Stevens. I lack any evidence to dispute it, but I am sure that the GOP as a whole is dissatisfied with Stevens; of course, the mainstream of today's GOP is not exactly pro-Ford, either. ;)

Second, Kennedy votes with the conservatives *far* more than with the liberals. I won't attempt to list all of the cases in which he has cast the deciding vote to prove it (and it is not just on the insignificant cases, see Bush v. Gore, Grutter v. Bollinger, etc), but your post seems to indicate that unless the nominee votes with the conservatives on *every* issue, they are a disappointment. Is it really process conservatism you are after, or a more conservative version of results conservatism?
Indeed, I suspect that Kennedy voted with Rehnquist in a large majority of cases. I don't disagree that Kennedy often votes in a conservative manner, but the point is that he is looking for results and then backfilling. I don't have a longitudinal study readily to hand, but I suspect you'd find evidence that Kennedy has crept slight to the left with each passing year. I also suspect that he will continue to drift. He is able to do this, under my theory, because he looks to results, not process, and as his preferred results change, he has nothing to hold him back.

Of course, one may be a process-oriented originalist and still go wrong; I am explicitly at loggerheads with Scalia and Thomas over the negative commerce clause, and my reading of the ninth amendment completely denies Randy Barnett's reading of it. So one of us is wrong, and it's probably me; still, I doubt any of us are losing any sleep over this disagreement, since none of them know me from Adam, but the point is that while originalism doesn't necessarily compell a single result, it is much better at producing results which are consistent and reasonable against the text.

Likewise, if you are process-oriented, I think you are likely to come out the right way considerably more often than if you are results-oriented, and with far more consistency; I have far more respect for Scalia's (originalist) Raich concurrence than for Kennedy's (nonoriginalist) Roper opinion, despite the fact that I would have dissented in both cases.
10.3.2005 11:56pm
jgshapiro (mail):
SimonD:

I'm not sure I agree with you on the predictability of originalism. It sounds fine in theory, but Scalia's opinion in Raich makes pretty clear that you can come out any which way you choose depending on where and when you place the emphasis on your originalism. Then there is the theory that originalism was adopted as a method to come out with politically conservative results generally, but I won't get into that.

I don't know from where you get your evidence that Kennedy is deciding how to come out and then "backfilling." That is a serious charge to make of an appellate judge based on speculation alone, but perhaps you have reason to believe this (did you clerk for him?). He doesn't seem any less consistent to me than anyone else up there, except for maybe Thomas, and no one is following his opinions.

As for Stevens, check out this link for Ford's views on Stevens (p.17-18). (Ford says Stevens has turned out differently than he thought he would have (more liberal) but Stevens is a very good legal scholar and he supports him.)
10.4.2005 4:00am
Andrew Seal (mail):
Given that Miers is primarily a trial lawyer, wouldn't she be temperamentally if not philosophically indisposed to the sort of constitutional originalism many were hoping for from this pick? Or if she is committed to "humbly" upholding legal precedent, mightn't she see legal precedent differently than Scalia or Thomas because of her experience as a trial lawyer?
10.4.2005 4:58am
kfm:

She had a distinguished legal career, but from all appearances, one in which she would have rarely had the opportunity or inclination to think seriously about the Court or its role in American society. In private practice, she proved herself most distinguished, it appears as an administrator and manager at her law firm--useful skills, but different from those needed on the Court. Her practice at the various iterations of the Lidell firm in Texas appears to be a conventional trial litigation practice. Finally, her primary responsibility during her time working in Washington has been as a Staff Secretary--again doing management and administration, not intellectual heavy-lifting. Or, as we say in these parts, doing "process" rather than substance (some might say less charitably, "a glorified paper-pusher"). There is simply nothing in her background to suggest that she will exert any intellectual leadership inside or outside the Court.


That is intellectual snobery at its finest. Other than those who sit around pondering judicial theory (such as a law professor), everyone else must be unqualified. Simply amazing...

The last thing that the court needs is more Ivory Tower theorists with little concept of how those theories affect the real world.
10.4.2005 10:16am
Bill Harshaw (mail) (www):
As a nonlawyer, I'm fascinated by the Court as a social system, as affected by personalities as theory. So I offer some other possible considerations. The Rehnquist Court was together for a long time. Apparently they get along well, personally, as opposed say to the Burger Court. Suppose Bush had appointed and gotten confirmed a Scalia and Thomas--hard charging people with an agenda. So now you have two new interlopers coming into a group of seven people with well-established roles. Wouldn't the newcomers be direct threats to the original Scalia and Thomas as they manuever to get a majority for their views? Couldn't the conflict make it harder to pick up votes from Kennedy and others? Couldn't we anticipate a lot of strum und drang for several years?

Instead of that route, Bush has picked two people who are notable for their ability to work well with others. Maybe he hopes that a little honey will allow them to vote conservative without the friction that might either split conservatives or unnecessarily losing votes from non-conservatives?
10.4.2005 10:43am
H. Tuttle:
Prof. Z. says "Put another way, looking at Miers resume, I can see nothing in her career or her resume to suggest that she has ever thought in any meaningful manner about larger questions of law or judicial philosophy."

While I have utmost respect for Mr. Zywicki, with who I agree very frequently, his echo of the elite view of one's resume and credentials -- in a society exceedingly and ever more obsessed with same -- is, to be frank, pure 100% B.S. I for one am sick of the emphasis and focus on the credentials of those who are nominated for various positions, rather than focus on the person; and the blogsphere's nailed it with the observation that the hue and cry is primarily from the Federal Clerkship/Ivy League crew who have come to feel that every higher judicial office is their sole birthright.
10.4.2005 11:30am
Unnamed Co-Conspirator:
SimonD, why no optimism on Roberts? There's good reason to be hopeful that he'll do more than just vote the right way. His performance in the hearings suggests that he has some ability to build consensus within the Court, and may be able to help move the Court back toward a faithful reading of the Constitution. I wouldn't discount the possibility that the Jackson-to-Rehnquist-to-Roberts connection has helped produce a very capable Chief Justice. I don't have any hope that he can turn Ginsburg or Breyer from the dark side, but I wouldn't rule out him having some influence where the others are concerned. It's Roberts' apparent quality, and in particular his very-much-suited-to-Chief-demeanor/temperament, that make the Miers appointment so disappointing -- it looks very much like a missed opportunity to build on what was an excellent start.
10.4.2005 11:26pm
David M. Nieporent (www):
H Tuttle: I for one am sick of the emphasis and focus on the credentials of those who are nominated for various positions, rather than focus on the person

Credentials are the person. They're the record of what the person has done, what the person has accomplished. Of course there are some personal qualities that don't come through on a resume -- but since none of us, including the people charged with deciding whether to confirm the nominee, know the nominee personally, that's pretty useless for our purposes. Seemingly Bush knows Miers well enough to judge "the person," but Bush's track record isn't an inspiring one in that regard. (Remember him looking into Mr. Putin's eyes?)


kfm: That is intellectual snobery at its finest.

You say that like it's a bad thing. I think we want the smartest, most thoughtful people on the court, not someone who has primarily been good at career networking, as Miers has. I have nothing against quotidian lawyering; I do it myself, if not to the level of accomplishment as Miers. But it really has little to do with the hard questions that face the court. Now, maybe Miers has thought long and hard about issues of checks and balances, the nature of federalism, the proper degree of deference to legislative authority, the relationship between the text of a constitution and the evolving needs of society. But how can we possibly know, when her career has had no connection to any of these things?
10.5.2005 1:24am
SimonD (www):
UCC-
During the hearings, he specifically endorsed substantive due process and the living constitution, and explicitly disclaimed an originalist perspective. Check and mate. I liked his deeply impressive knowledge of the Supreme Court's precedents, I liked his rejection of foreign law. But he endorsed things of which I think there can be no endorsement, and so I have great scepticism.

We will find out, of course, the day the court hands down Ayotte. At that point, I will either look prescient - when Roberts either writes a caustic dissent because O'Connor has withdrawn her retirement in face of the Miers nomination, or simply isn't yet confirmed, or writes for the majority in overrulling Stenberg - or very foolish. I will be delighted, in that case, to look foolish.
10.5.2005 1:24am
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