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Harriet Miers: Some Undistinguished Writing.--

I just read a series of excerpts collected by Time Magazine from Harriet Miers' article in the 1992 Texas Lawyer.

(In the comments below, perhaps someone can link a full copy. [UPDATE: Here it is.] I want to see if Time slyly picked out the worst passages, or whether (as I fear) the entire article is as painfully platitudinous as the excerpts that Time chose.)

The first Miers quotation [See the 2D UPDATE below; the error in this passage is in LEXIS's transcription--JL]:

"The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs."

What is the "freedom of liberties"? We all make typographical errors (and this may well be one [UPDATE: it is a typo; see 2D Update below]), but her writing has that airy feel of someone trying to sound important by regurgitating empty platitudes.

Time's second excerpt includes this sentence:

"Those who would choose a rule of man rather than the rule of law must not escape fitting penalty."

You get the sense that first she wrote "must not escape penalty," then thought that she needed to qualify it with the word "fitting," but she didn't realize that idiomatically this would require adding an article: "must not escape a fitting penalty." On this blog (and elsewhere), I have published many sentences as awkward as this one of Miers', but I'd like to see something that read as clearly as the articles or op-eds of my co-conspirators.

Time's third excerpt is similarly timeless:

"We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction."

I have refrained from explaining why some of Miers' sentences are awkward, but this one violates the "short-to-long principle," explained by Joseph Williams in his books on writing. For grace, Miers' list should be reordered from shorter to longer elements: "poverty, family dysfunction, the lack of education, the lack of health care (particularly mental health care), and the lack of self-esteem or hope in some segments of our society." Not every good writer does this all the time, and many good writers do this instinctually without a rule, but in these excerpts from her meager writing, Miers consistently makes poor choices. In these excerpts, Miers shows no natural skill for writing.

Time's fourth excerpt:

"We lawyers are trained in problem-solving and we have the leadership and other opportunities available to professionals in our society. The two men who died exemplified individuals devoted to their God, their families, their fellow man, their communities and their profession. Speakers in both memorial services, used the very same words: ˜Well done, good and faithful servant."

Note the incorrect comma in the last sentence [UPDATE: again, the comma is a typographical error by LEXIS] and the plodding first sentence.

To be fair, I confess that Time's fifth excerpt ends on a more eloquent note. Speaking about two violent murders, Miers wrote:

"Plain and simple, they are despicable acts —- examples of the worst nature of man. The rest of us are challenged even more to demonstrate the best."

Of course, in our prose we ALL make lots of mistakes. Further, one can't be certain that Miers actually wrote this article published under her name. An associate in her law firm may well have ghost-written it for her. Or a poor editor may have tampered with Miers' writing.

Yet if these are representative examples of Harriet Miers' writings, she will be among the least able writers to serve on the Court in recent years. In my opinion, the majority of students whom I supervise for independent senior research projects at Northwestern Law write better prose than the passages published in the Texas Lawyer under Harriet Miers' name.

The last piece that I encountered before reading the excerpts from Miers' article was Randy Barnett's op-ed on Miers. The difference in the quality of the prose between the two pieces is striking. Randy Barnett writes like a person who earns his living by expressing his reasoning in writing; Harriet Miers doesn't — though if she is confirmed, that is exactly what she will be doing for the next couple of decades. (Since 1971, Justices have left the Court at the average age of 79.5).

It has been said of Justice Blackmun that he realized his own intellectual limitations, leaving the hard job of drafting his opinions to his clerks, reserving to himself the easier task of substantively cite-checking what his clerks wrote. Unless Miers' writing has improved since 1992 (and it may well have), she might take a leaf from Justice Blackmun's book.

UPDATE: 1. In the comments, some argue that my suggestion that an Associate or clerk at Miers' firm might have written the Texas Lawyer article is probably true. I don't know.

2. Originally, I had missed the Miers article on both Westlaw and LEXIS, but LEXIS has it (as a reader notes in comments). I would like to see a photocopy of the original (it's not on Heinonline.org) because there are enough errors in the LEXIS version that I suspect that at least part of the fault is not in Miers' writing but in the typists at LEXIS. Some of the following excerpts look more like LEXIS typos than Miers' writing to me [UPDATE: my suspicions are confirmed in the 2D Update below]:

Many times the push for such precautions is aimed at the criminal courts, but as the Fort Worth case shows, but civil courts have at least as great an interest in courthouse security. . . .

Judicial appropriations for the State of Texas represent 0.32 percent of the total state appropriations. While money cannot solve all the problems, and many times increased expenditure is a simple but wrong approach to solving problems and face, adequate personnel, space and equipment for the judiciary in Texas are essential if we expect the third branch of government to do its job.

Until I see a copy of the published article, I think it is likely that at least some of the errors I criticized in my earlier post were errors of the LEXIS typists. Certainly, the two errors listed in this update look like typists' errors [UPDATE: They are.]

2D UPDATE: In two comments below, Virginia Postrel helpfully reports on what she found in checking the excerpts above against a library microfiche copy of Harriet Miers' 1992 article. Although I raised the possibility of typos in my original post, by the time of my first update, I thought that some of the worst errors must be LEXIS typos: "I think it is likely that at least some of the errors I criticized in my earlier post were errors of the LEXIS typists. Certainly, the two errors listed in this update look like typists' errors."

Postrel points out that the first error is NOT in the original:

I have the original article, courtesy of microfiche in the SMU Law library. The first quote is wrong. The correct quotation is:

"Those precious liberties include free speech, freedom to assemble, freedom of religion, access to public places, the right to bear arms and freedom from constant surveillance."

The rest of the quotations [in my original post] are correct. She writes like a competent corporate executive, maybe a p.r. person, avoiding controversy while still managing to make something of an argument.
In her second comment, Postrel checks the errors noted in my first update, errors that looked to me like LEXIS typos. Postrel wrote:

I forgot to check the update. There are indeed typos in both quotes. The originals read:

Many times the push for such precautions is aimed at the criminal courts, but as the Fort Worth case shows, the civil courts have at least as great an interest in courthouse security. . . .

and

Judicial appropriations for the State of Texas represent 0.32 percent of the total state appropriations. While money cannot solve all the problems, and many times increased expenditure is a simple but wrong approach to solving problems we face, adequate personnel, space and equipment for the judiciary in Texas are essential if we expect the third branch of government to do its job.

Thanks to Virginia for clearing this up.

Geoffrey Dean (mail):
It makes no difference whether you write "penalty" or "fitting penalty" the addition of "a" is optional, it changes the meaning the same way.
I have to give my opinion that people who excel at maths are much superior at logical reasoning than say social scientists or lawyers. Mathematicians have to invent special languages to be able to express their concepts clearly, the legal profession uses obscure language to make their profession seem more difficult and thus earn more money for lawyers.
10.5.2005 3:21am
Justin Kee (mail):
Well, thank god she didn't write "freedom from liberties" or we would really have a reason to be scared.
10.5.2005 3:44am
Dillon Kuehn (mail) (www):
Perhaps the referenced Freedom of Liberty is a theory asserted by Supreme Court nominees in defense of the egregious act of wearing a zebra stripe vest.


A ZEBRA STRIPE VEST!!! If that's not judicial activism, I don't know what is.
10.5.2005 4:11am
Perseus (mail):
What disturbs me even more than Miers's (Strunk &White, Rule #1) unimpressive prose is the substance of one of her platitudes:

"We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction."

What true-blue Conservative cites poverty, lack of health care, and lack of self-esteem (!) as major contributors to criminal behavior? Whatever happened to "welfare queens" having babies out of wedlock (a la Reagan)? Now it's certainly possible that Miers has become a neo-con since 1992, but what do we know about her that would make us confident that her views won't change yet again when placed in a different environment other than the president's self-professed ability to peer into the souls of individuals (e.g., Putin)?
10.5.2005 4:21am
Dan Pawson (mail) (www):
The text of both her articles are available on Lexis; a byline search for Miers in Texas Lawyer pulls them right up. The second one is a very simple piece on how to conduct a successful merger; no intellectual heavy-lifting there.
10.5.2005 4:53am
OpposeMiers (mail):
www.opposeharriet.blogspot.com
10.5.2005 5:52am
randal (mail):
Geoffrey Dean, don't let's be silly. "Escape penalty" is idiomatic. "Escape a penalty" sounds retarded... like saying, "My efforts finally beared a fruit."
10.5.2005 6:48am
Josh L.:
Folks: 3 points in response to this posting.

1. Have you ever seen the submitted version of a law review article? I was an Articles Editor on a "top 10" law review, and though I never read a submission by Prof. Lindgren, I can say that many submissions I received were quite poorly written. This was even (perhaps *especially*) the case for some of the most brilliant scholars out there. I think specifically of one U. Chicago professor who is widely lauded as one of the best minds out there -- productive, interesting, and often very insightful -- and his prose was just the pits! I say this not to extol the value of student-edited journals; that's for another thread. I write simply to emphasize that how carefully one follows Strunk &White and how well one places her commas has no bearing on one's brilliance or potential as a Justice. If it did, many of our greatest legal minds wouldn't be qualified for the Court. Miers may not be an inspired choice for the Court for a number of reasons, but how well her sentences flowed in a bar journal article is irrelevant. Not only are Prof. Lindgren's quibbles about Miers' writing rather silly, but their silliness undermines the important overall concern about whether Miers is up to the job.

2. I agree that many of the quoted passages are "painfully platitudinous." Yet, if anyone has been "painfully platitudinous" in the last 5-ish years, it's been Pres. Bush. For every insightful turn of phrase like "soft bigotry of low expectations," there must be ten examples of such banalities as "stay the course," "not legislate from the bench," and countless platitudes somehow involving the word "freedom." Now, don't get me wrong -- Democrats are guilty of this, too. Indeed, we are all awash in platitudes, such that when a phrase like "soft bigotry of low expectations" hits us, we at first are kind of taken aback. My point? Simply that if Miers engaged in a little platitude-writing, she shouldn't be held up to such ridicule. Indeed, she was writing for a bar journal! Now, does she have the intellectual depth to be a good or great Justice? It's unclear. This is what makes me hesitant about her nomination. But picking on Miers for the platitudes in her bar journal article is rather silly ... and potentially hypocritical. I wish Republicans were as critical these last few years of Pres. Bush's tendency to speak (and his speechwriters' tendency to write) in platitudes.

3. I want a Supreme Court Justice who will get the law right. Now, if he/she can't write well, that's of course not good. I believe deeply in the power of compelling writing. But a Justice who is no wordsmith is not necessarily a bad judge. I see no problem with clerks (re)writing opinions, as long as the judge/Justice guides the process and directs the content. (The problem is when clerks' heads swell and they think they're mini-judges for the year.) But if the judge oversees the drafting and, most importantly, is HIM/HERSELF the one initially and ultimately making the value judgments about which strand of precedent to follow, how (if at all) to interpret House committee reports, whether the 2nd amendment provides for an individual right to bear arms, etc., then that's fine. Again, Miers may not be up to snuff for doing this. We don't know. I admit I have serious doubts about her qualifications. But if she can do the intellectual heavy-lifting and reason well, I have no problem if her clerks help her express her interpretations and conclusions in well-written prose.
10.5.2005 6:55am
Josh L.:
A quick correction: Texas Lawyer is actually NOT a bar journal, as far as I can tell. My apologies.
10.5.2005 7:11am
Neal R. (mail):
Interesting post. To my mind, a nominee's writing ability is an extremely good gauge of his or her potential as a Supreme Court Justice. As Wittgenstein demonstrated, thoughts are inseperable from their expression -- to write clearly is to think clearly, and vice versa.
10.5.2005 8:11am
Buck Turgidson (mail):
it's certainly possible that Miers has become a neo-con since 1992

1) Even if true, would that necessarily be a good thing? Most "neo-cons" are pragmatic in a way that makes their opinions reviled by traditional conservatives. Neo-cons are not the conservative base.
2) Bush assured us that "she won't change her mind". First, I am not so sure that that's a good thing in a jurist. Second, if she changed her mind in 1992, what makes him think that she won't do so again should she run into someone more charismatic than W? After all, if he's the most brilliant man she's met, she'll be really impressed when she meets the men on the Supreme Court.

Other points:

3) So, looking into Bush's eyes was enough to convince her that this man is on a true path? Why does this sound troubling to me? And, as someone else pointed out already, Bush looked into Puti-put's eyes and walked away proclaiming, "Vladimir is my friend!" URG! What a moron!
4) It seems that people have forgotten how rambling Thomas's early SC opinions were. He did not sound illiterate, but he lacked the ability to communicate clearly. This does not stop most Conspirators from defending him of all attacks on intellectual grounds. Complaining about someone's grammar is far worse than going to the heart of the argument and dissecting it. Jim does address both issues, but I wish he'd skip the grammatical ones.
5) I was disturbed to see Bainbridge write, "She went to #52 school in the country." Never mind that ranking is subjective. Never mind that there are reasons why outstanding people end up in non-top institutions. Why not simply say that Miers has made a career in excelling at mediocrity. Someone who hopes to be at the top of her profession needs to have a bit more in her arsenal than breaking administrative glass ceilings (and those she broke were clearly administrative ones). O'Connor had it, Miers does not.
10.5.2005 9:18am
chaoticgoodnik (www):
http://www.whitehouse.gov/ask/20041029.html

It's not legal in nature, but it is a more recent sample of her writing.
10.5.2005 9:20am
Aultimer:
Oh, please. Certainly some associate was responsible for the vast majority of the quoted prose. If you spent any time in a law firm, you'd realize that these articles got either 6 or 12 minutes of non-billable "firm promotion" time for review, likely interrupted by a few phone calls and associate "quick questions" long after law students and academics were at home unwinding. The quality is indicative of nothing else.
10.5.2005 9:50am
AppSocRes (mail):
While President Bush is, in my opinion, a very intelligent and principled man, he is most definitely not intellectual, facile with the written or spoken word, or interested in any kind of philosophical inquiry. On the other hand, he has demonstrated an emphasis on loyalty so extreme as to make this virtue somewhat of a vice. It's hardly surprising that he would choose to reward the long-term loyalty of someone who shares both his flaws and virtues with a position that combines prestige, power, and long tenure. It will be unfortunate if he's allowed to get away with it.

I voted for Bush for the same reasons Churchill opted for democracy: the worst possible outcome unless one considers the alternatives. I don't regret my votes, but I can't say Bush has done anything since the response to 9/11 that's made me very happy with him.

I find the comparison of Clinton and Bush fascinating. In their weaknesses and strengths they are almost exact inverses of one another. Clinton won the grudging support of the liberal base and Bush the grudging support of the conservative and once in office both ignored these power bases. They both got away with it, because neither liberals nor conservatives had any alternative or recourse. Meiers is just the latest example of this.
10.5.2005 10:05am
AK (mail):
Wow, her prose isn't just awful, it's Souter-awful.
10.5.2005 11:48am
TL:
I agree with the post in general, and yes, the writing seems fairly second-rate. It seems worth considering that the Artice in the Texas Lawyer, however, was penned by someone in Ms. Miers' office, perhaps even a 2L clerk.

I just wrote a 25-pg. annotated article for a partner at my firm. I am a 3L clerk. He is an expert in the field. The article was on a nuanced issue in his practice, of which he had only a vague guess as to how jurisdictions, including our own resolve the issue. His name was the authority on the article. All the research and conclusions (plus every sentence phrase in the paper) were my own.

Possible this may extend in practice beyond my experience?
10.5.2005 11:49am
TL:
Or, maybe she wrote her article like I just wrote this comment, blog-style. Pardon the typo: "Artice" is of course, "article" in most parts of the country.
10.5.2005 12:02pm
Blar (mail) (www):
Perseus said: What true-blue Conservative cites poverty, lack of health care, and lack of self-esteem (!) as major contributors to criminal behavior?

"True-blue Conservative" sure is an awkward phrase in this polarized, colorized America, particularly in a post criticizing undistinguished writing. But you need look no further than Conspirator David Kopel to find a Conservative who has expressed similar views on crime, albeit in less platitudinous form. What I wonder is how anyone who has paid the slightest bit of attention to the characteristics of the prison population could doubt that mental health problems are a significant contributor to criminal behavior.
10.5.2005 12:24pm
Perseus (mail):
I've never liked the way in which the states have been divided into red and blue since blue is the traditional color of Conservatism (and red the color of Communism). So, like any good Conservative, I'm a bit behind the times.
10.5.2005 1:29pm
Roach (mail) (www):
I wouldn't agree that an associate wrote this. These kinds of pseudo-profound speeches and writings tend to be written by partenrs directly. If something is written like crap or gets the law wrong, it's probably written by a partner. The brightest associates tend to move on to other things.
10.5.2005 1:42pm
Virginia Postrel (www):
I have the original article, courtesy of microfiche in the SMU Law library. The first quote is wrong. The correct quotation is: "Those precious liberties include free speech, freedom to assemble, freedom of religion, access to pblic places, the right to bear arms and freedom from constant surveillance." The rest of the quotations are correct. She writes like a competent corporate executive, maybe a p.r. person, avoiding controversy while still managing to make something of an argument.
10.5.2005 6:40pm
Virginia Postrel (www):
I forgot to check the update. There are indeed typos in both quotes. The originals read:

Many times the push for such precautions is aimed at the criminal courts, but as the Fort Worth case shows, the civil courts have at least as great an interest in courthouse security. . . .

and

Judicial appropriations for the State of Texas represent 0.32 percent of the total state appropriations. While money cannot solve all the problems, and many times increased expenditure is a simple but wrong approach to solving problems we face, adequate personnel, space and equipment for the judiciary in Texas are essential if we expect the third branch of government to do its job.
10.5.2005 6:53pm
Jim Lindgren (mail):
Virginia:

Thanks so much for clearing this up. If I had known that the Time Magazine excerpts were from LEXIS, I would have been more skeptical from the beginning.

Jim Lindgren
10.5.2005 11:11pm
Thorley Winston (mail) (www):
Virginia and Jim,

Have either one of you contacted Time Magazine to let them know that they're posting inaccurate information about Harriett Miers' writing based on what appears to be typographical errors from Lexis Nexis?

I remember how much time went into debunking the false information in Ryan Lizza's TNR hit piece where he misrepresented some of her work in the bar association and more people will probably see the Time piece that the TNR one.
10.6.2005 1:01pm
Chris Grant (mail):
For those who find "escape fitting penalty" grammatically offensive, here are a couple of similar phrases I Googled up in a few seconds:

[Canadian Security Intelligence Service:] "Furthermore, they are masterful at exploiting the media to influence public opinion, and at using democratic institutions to further their cause or to avoid just penalty."

[Sir Michael Hardie Boys, Former Governor-General of New Zealand:] "The traditional response has been to boost enforcement efforts and to make sure that antisocial behaviour on our roads does not escape appropriate penalty."
10.6.2005 1:02pm