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Reg Brown Responds to George Will:
Reginald Brown, a lawyer at Wilmer Cutler who served in the White House Counsel's Office under Bush, has penned a response to George Will's column on Harriett Miers that I am reprinting with Reg's permission. I think I'm somewhere between Reg and Will on this one, or maybe on a different plane altogether, but Reg's take seems very much worth considering:
  George Will's column on Harriet Miers and the President is both unfair and sloppy. He begins by suggesting that the President is uninterested and incapable of making sophisticated judgments about the Court and judicial philosophies. This charge is patently unfair. The President picked John Roberts, and has a stellar first term record of selecting conservative judges for the appellate bench. There hasn't been a liberal in the bunch with the exception of Roger Gregory and Barrington Parker, both of whom the President obviously nominated as part of an early political compromise that got Roberts and others on the circuit bench. This is a man who almost lost the Presidency because of the liberal activism of the Florida Supreme Court. He understands full well the power of the Court and has been serious about his appointments in the past.
  Will's second argument is that the President didn't consult with serious people before making the choice of Miers. This is also a silly argument. We know that the President consulted with eighty members of the Senate, including all of the Republicans on Senate Judiciary. He also reached out to people like Leonard Leo and Jay Sekulow. And he has serious, principled conservatives, like Bill Kelley, on the White House Counsel's Office staff. These aren't cronies or toadies who will only tell the President what he wants to hear. And they are, for the most part, very comfortable with the Miers choice. And some of these people have seen Miers up close -- vetting the choices for the first vacancy, taking Roberts through grueling moot court sessions, and recommending judges for the lower courts.
  Will's third argument is equally weak. He basically says the President has forfeited his right to be taken seriously because he didn't veto McCain-Feingold. As an initial matter, if the President can't be taken seriously for signing the bill into law, the Senate can't be taken seriously for having passed it. McCain-Feingold was a bad law, but bad laws get enacted all the time, and at least the President had the sense to have GOP political lawyers challenge significant components of the law in court. While it is true that DOJ defended the law on appeal, the politics of the entire situation were plain, and understandable, to all involved. The President has demonstrated great seriousness about the Constitution during his tenure, particularly as it relates to the power of the Executive under Article II.
  Will's fourth argument is the most dangerous and absurd. He suggests Miers shouldn't be approved because she hasn't shown a "talent" for "constitutional reasoning" honed through years of "intense interest" and practice. Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution's text, structure and history and who call balls and strikes. Bush is in favor of demystifying the Court and the Miers choice is part of that effort. Will seems to be buying into the "Nine Wisest Men" mythology that is a root cause of the Court's aggrandizement of power over time.
  Will's final argument is that Miers is an affirmative action quota pick. Underlying this theme is a subtle snobbery that conservatives should dismiss out of hand. One need not go to Harvard or Yale Law or be a member of the right Inn of Court to serve with distinction. Miers' career suggests she is plenty smart and obviously hard working. She also happens to be a gun-toting evangelical who gives money to pro-life organizations and spends her free time taking care of her elderly mom. She's served as a public official, a commercial litigator, a policymaker and Counsel to the leader of the free world. These aren't the qualifications that have led to appointments in the recent past, but given the nonsense regularly emanating from the Court maybe they ought to be.
  Miers lives in the real world. She knows what the practical impact of a Kelo decision will be and that the laws of Nigeria and the European Union aren't terribly relevant to U.S. constitutional analysis. And as important, the people that she hangs out with don't give a hoot what Linda Greenhouse and the New York Times think. That's not evidence of a quota pick -- it's solid progress.
  I love George Will's work, and he's a great conservative, but he's way off-base with today's column.
Steve:
I think the argument that "if she doesn't look like your typical Supreme Court Justice, that's probably a GOOD thing" will appeal to a lot of people. Of course, the same logic could probably be used to appoint your horse to the Senate, but I'm not convinced that would be a bad thing, either.
10.5.2005 12:40pm
Rick:
I'm thinking about running for my local neighborhood advisory committee, so that I can be included on the "short list" for the next SC opening.

This article is fine, for what it's worth, but as to the last section I have yet to hear anyone say that because Miers didn't go to Harvard she's unqualified.
10.5.2005 12:40pm
unhyphenatedconservative (mail):
"McCain-Feingold was a bad law, but bad laws get enacted all the time, and at least the President had the sense to have GOP political lawyers challenge significant components of the law in court."

Ah, so the President fulfills his duty to the Constitution by signing unconstitutional laws so long as he has lawyers (unsucessfully) challenge that law at a later time? This does not pass the laugh test. It doesn't even get a chuckle.

As a thought, this kind of reasoning is precisely why treating the courts as the final arbiter of the Constitution is so pernicious. "Leaving it to the courts" allows elected politicians to avoid the hard decision about doing their duty to the Constitution and simply signning off on politically expedient laws.
10.5.2005 12:51pm
smwywh (mail):
"This is a man who almost lost the Presidency because of the liberal activism of the Florida Supreme Court."

And REG calls Will's work "sloppy"! Perhaps on the conservative blogs most incensed by the Miers selection, the most notable judicial role in the 2000 election was that of the Florida Supreme Court. I suspect that for most people, however, the participation of the U.S. Supreme Court is what truly stands out. When Brownback v. Clinton (or whatever combination you prefer) arrives at the Court in 2008, is there any question how that strict constructionist Justice Miers will vote?
10.5.2005 12:53pm
Gordon (mail):
Will's column is a pissy fit masquerading as commentary.
10.5.2005 12:54pm
Rick:
Ironically, after posting my snippy comment on running for my local neighborhood council, I looked up who I'd be running against. He is actually as qualified for the SC as Miers. I also looked up the author's bio - and he seems as qualified for the SC as Miers. These guys are right - this pick is revolutionary. Now, everyone will personally know several people that are as qualified to sit on the SC as the soon-to-be Justice Miers.
10.5.2005 12:56pm
Jeff Dege (mail):
There is no excuse for McCain-Feingold.

Bush should have vetoed it. And had it been passed over his veto, the DOJ should have been arguing in opposition to it.
10.5.2005 1:12pm
Kazinski:
Rick, you haven't been paying attention. There has been a lot of carping over her law school, for instance:

"She didn't graduate from a top-drawer legal school (SMU), and she didn't clerk for a highly influential jurist (US District Judge Joe Estes). "

- Ed Morrissey

I kind of wonder if the carping over her judicial and academic qualifications is a roundabout attack on the fact that she is an evangelical born again Christian. I mean how can you take that kind of person seriously, intellectually?

The thing I like about Miers is that she seems to be a firm believer in the 2nd ammendment as an individual right. If the only thing she ever did on the court is provide the 5th vote to grant cert and resolve the conflict between the 9th and the 5th circut on the whether the 2nd is an individual or collective right I'd be happy. We need to stamp out the collective right heresy before it spreads any further. The First amendment as a collective right? Don't laugh, isn't that what McCain-Feingold is doing: Some must be silenced so others may be heard.
10.5.2005 1:15pm
Gordon (mail):
Kazinski:

We need to stamp out the collective right heresy before it spreads any further.

You mean the standard intepretation of the 2nd amendment for the past 200 years? The interpretation endorsed by that noted judicial radical, Justice McReynolds, in 1939 (Miller v. U.S.)?

I happen to think that the 2nd amendment confers an individual right, perhaps not as absolute as you would think, but a right nonetheless. But it does no good to throw around nonsenical words like "heresy" to describe a 200-year old interpretation of the Constitution.
10.5.2005 1:26pm
Gordon (mail):
As for McCain-Feingold, Justice Breyer makes a pretty strong intellectual argument for the constitutionality of campaign finance laws. Any response?
10.5.2005 1:28pm
Marcus1:
>She knows what the practical impact of a Kelo decision will be<

Is this the endorsement of a conservative?
10.5.2005 1:31pm
Rick:
ok, that's fine, Ed Morrissey made the stupid argument that she's unqualified because she didn't go to a "top-drawer" law school. However, most of the criticisms that I've read (including Will's article, to which the above is responding) concern her less-than-SC-worthy experience since then. The only defense I've seen of Miers' credentials is setting up the Harvard strawman and knocking it down with the "your being elitist" charge. I suppose that's because there really is no defending her credentials on the merits.
10.5.2005 1:32pm
anonymous coward:
"I kind of wonder if the carping over her judicial and academic qualifications is a roundabout attack on the fact that she is an evangelical born again Christian."

No, it really isn't--I suspect most such people reacted negatively to her law school before knowing anything about her religion. Rather, there's an obsession with school rankings in the legal profession; where you went for three years matters decades down the road. As does whether you were on law review and whether/for whom you clerked. Naturally, those of us who were especially good at school overvalue these kinds of credentials, and the system is to some extent self-perpetuating.

I think it's fair to ask that a nominee have some scholarly ability, but I really don't think how Miers did in school will necessarily tell us much about how qualified she is at 60.
10.5.2005 1:36pm
Johh Fee (mail):
I find Mr. Brown's anti-elitist argument -- particularly his fourth paragraph about "demystifying" the Court by appointing people with less experience in constitutional lawyering -- to be far more troubling than the argument to which he is responding.

I am a constitutional conservative, and like George Will, believe that high quality constitutional interpretation takes experience and talent (as well as a correct interpretive philosophy). I see no reason to believe that appointing Justices with less constitutional experience will result in fewer goofy balancing tests. Aren't multi-factor balancing tests and penumbras what so-called "real world," "pragmatic," "common sense" jurists tend to favor when they don't know how to analyze a problem according to law?

And why do so many assume that having experience in constitutional interpretation somehow correlates with a lack of real world experience?

There are many potential jurists, in the mold of Justices Scalia and Roberts, who have all the relevant experience (legal and real world), who have a demonstrated record of both talent and practical judgment, and who share the President's conservative philosophy. Why nominate someone with less?
10.5.2005 1:43pm
Medis:
Will's fourth argument is the most "dangerous" to Miers precisely because it is NOT "absurd." It is Brown's response that that argument which is absurd: think carefully about Constitutional Law for an extended period is not likely to lead you TOWARD a case-by-case approach. If anything, it is like to lead you away from a case-by-case approach and toward something firmer.

And for evidence, among recent Justices, Miers is probably most analogous to Powell and O'Connor, and least analogous to Scalia. What does that tell you, Brownie?
10.5.2005 1:44pm
Medis:
Wow, that was a lot of typos. I guess I am just stuttering mad.
10.5.2005 1:46pm
A F:
This is a very smart blog, but I've never seen anything quite as infantile and stupid as the contributors' hair-pulling over the Meirs nomination. Please. Relax already. The process people are suddenly results-oriented, and the results-oriented people suddenly love process. Hilarious.
10.5.2005 1:48pm
Cornellian (mail):
I see, and what evidence is there that H.M. has ever "focused on the constitution's text, structure and history?' Just curious. It's not as if doing so is part of the day to day work of a commercial litigator, city councillor or Texas lottery commissioner.

This pitiful attempt to wheel out the usual anti-elitist rhetoric to spin her lack of qualifications into a positive feature of her nomination seems like desperation to me.

Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution's text, structure and history and who call balls and strikes. Bush is in favor of demystifying the Court and the Miers choice is part of that effort. Will seems to be buying into the "Nine Wisest Men" mythology that is a root cause of the Court's aggrandizement of power over time.
10.5.2005 1:55pm
Guest2 (mail):
What the heck is a "GOP political lawyer"?
10.5.2005 1:57pm
eddie (mail):
As someone who more often disagrees with most of the posters here, I find it humorous that such energy can be expended on the criticism of a criticism. This whole discussion side-steps the more fundamental problem with Miers' nomination that only a few (and I have not found a conservative yet) find troubling, i.e. Miers is a candidate whose only yet very well documented "qualification" consists of her loyalty both personal and professional to the president. How will such a nominee be able to maintain the appearance of objectivity in any cases regarding presidential power? And does anyone here care about that?

From some of the comments, there seems to be an underlying disrespect for the court, its precedents and even for those parts of the Constitution that are just not that "conservative".

But reading the rationalizations on either side of this "controversy" is awe-inspiring. Maybe Ms. Miers is right: GWB is the most brilliant person alive--look at how he has confounded even his most ardent supporters.

Bravo.

Except that this is the real world and the Supreme Court does make a difference and this is not simply some little board game where the one with the most hotels wins. But that's what politics today is all about.

And we the people have allowed this to happen.

And the learned pundits and lawyers and teachers of lawyers can only wag their tiny manicured fingers while muttering a few tut-tuts, all the while denying that it is their own flight from ideals that has created this culture.
10.5.2005 2:01pm
Medis:
A F,

Actually, it seems like both the "process" people AND the "results" people see plenty of objections on their own grounds.

Personally, I supported Roberts even though I suspect he will often vote in a way that I would not prefer. I did so because he was highly qualified and seemed fair-minded (eg, wasn't an ideologue). I guess that makes me a "process" person.

So, now I am stuttering mad at the nomination of Miers because she is unqualified and apparently was picked largely because of her personal loyalty to the President.

Where's the conflict? I think I am applying a consistent set of criteria, and yet reached opposite results precisely because the nominees are so different on my criteria.
10.5.2005 2:02pm
Richard Riley (mail):
FYI, this very same extended message from lawyer Reginald Brown is posted verbatim in the "Bench Memo" blog at nationalreview.com, by Jonathan Adler of Case Western Reserve law school. Adler posts it anonymously, as a message from "a former White House lawyer" and "conservative." Looks like Mr. Brown circulated his missive pretty widely around the academy today!
10.5.2005 2:12pm
Name Goes Here (mail):
This response is terribly flawed:

1) To say that Ms. Miers is quality pick because President Bush also pick John Roberts, this is simple "cum hoc ergo propter hoc".

2) In response to the McCain-Feingold, the "he did it even though he knew it was wrong but it worked out" in not an argument you want to make when you are also arguing that the POTUS acts with unwavering principles.

3)The "court needs to be demystified" argument is pathetic. Chief Justice Roberts testified to his own reverence of the SCOTUS, and to now say that the institution does not deserve that respect is ludicrous.

4)Lastly, I am most disturb by Mr. Roberts assertion that the qualifying basis for Ms. Miers conservative legal scholarship is because she "lives in the real world". If this would the case, I wish President Bush would have nominated Jeff Foxworthy because his opion would be a hell of a lot more fun to read than Ms. Miers.
10.5.2005 2:13pm
Henry Woodbury (mail):
I don't have a very strong opinion about Miers -- I think in this case (unlike Roberts) the hearings will actually be informative -- but I do think the conflict of interest argument is weak. Sometime in the next three years a few cases involving the president may get to the supreme court. Miers may or may not have to recuse herself a few times. Big deal.
10.5.2005 2:18pm
A F:
Now lets look at the legal experience of William Rehnquist before being nominated, and compare.

1 -- Stanford Law
2 -- Supreme Court clerkship.
3 -- private practice in Arizona, 1953-69 (16 years)
4 -- ran OLC for two years. Using Goldwater connection, presumably.

Meirs has far, _far_ more experience. And a much more varied experience. These Volokh profs should get over the two or three things that are guiding all this histrionic grousing:
1 -- Meirs did not go to a top law school
2 -- Meirs did not clerk for the Supreme Court
3 -- Meirs is not in the professor/appellate lawyer establishment.
10.5.2005 2:18pm
Justice Fuller:
A F,

Why do you think that? You're making an assertion, not an argument.
10.5.2005 2:30pm
Guest2 (mail):
I'm sorry, but I just can't resist:

GEORGE: Hey, I think I may have found someone for the scholarship.

JERRY: Yeah?

GEORGE: I'm interviewing all these annoying little overachievers. Finally, this kid walks in - Steven Koren - a regular guy. Likes sports, watches T.V.

JERRY: Is he smart?

GEORGE: (Defensively) He knows how to read. And he also knows finishing an entire book doesn't prove anything.

(Later scene)

GEORGE: Ladies and gentlemen, this (opens the door; Steven is standing there) is Steven Koren. His G.P.A. is a solid 2.0! Right in that meaty part of the curve - not showing off, not falling behind.

WYCK: George, the quailifications for this scholarship were suppose to be . . . largely academic.

GEORGE: I'm sure we're all aware of the flaws and biases of standardized tests.

WYCK: These aren't standardized tests - these are his grades.

(from 1997 Seinfeld episode, "The Van Buren Boys")
10.5.2005 2:35pm
Medis:
A F,

Is that a joke? Rehnquist, as you note, ran the OLC (for three years, actually--as I recall he started at the OLC in January, 1969, and he became a Justice in January, 1972). The OLC is the DOJ's Con Law office.

Three years ago, Miers was Staff Secretary.
10.5.2005 2:39pm
jACKJOHN (mail):

"Most recently, Mr. Brown served in the office of White House Counsel Alberto R. Gonzales, where he was the White House's principal legal liaison to the Departments of Treasury and Housing and Urban Development as well as other independent financial services agencies."



CAN WE SAY BIASED!!!!!?????
10.5.2005 2:50pm
Oleg (mail):
Eddie,

I do very much care about the ligitimacy of her rulings. Loayalty to POTUS and his "knowledge of your heart" are not only not qualifications for SCOTUS, but prusuant to Separation of Powers logic, almost disqualifying.. The legitimacy of any case where Miers is the deciding vote will certainly be attacked and under the circumstances some of the attacks may stick. If she writs particularly brilliant, cogent, persuasive opinions perhaps those attacks may be effectively rebuted at least for people who read such opinions. She starts at a severe disadvantage. I hope she's up to it, but we have no reason to be confident that she is.
10.5.2005 2:50pm
Rick:
You forgot that Rehnquist also served in the military for a number of years before he went to college. I'll leave to others whether that is important, but since the President seems to think HM's involvement with Meals on Wheels is relevant . . .
10.5.2005 2:56pm
Ron Burgundy:
Meals on wheels seems to me to be even further evidence that HM is merely a decoy... Straight from now defunct tv show "jack and bobby"
10.5.2005 3:00pm
duras (mail):
A F,

Bill Rehnquist was merely 1ST in his class at Stanford Law, commented on Constitutional law for 16 years and headed the government office that advises the President on Constititutional issues for nearly 3 years. (There may have been a Goldwater connection, but if so it merely gave him an edge over no more than 2 dozen and probably fewer similarly qualified individuals. Generally speaking virtually all OLC jobs are held by the most accomplished lawyer whom connections may at best privilage vis-a-vis similarly credentialed people). There is simply no serious argument that Rehnquist was anything less than superbly qualified for his job at OLC or that subsequent to his service there he did not have an experience and pedigree that made him an impressive choice for the Court.

I do not contend that Miers is anything less than an exceptionally intelligent and accomplished lawyer. Her experience, however, is not nearly as relevant for SCOTUS.
10.5.2005 3:04pm
CP:
"Will's third argument is equally weak. He basically says the President has forfeited his right to be taken seriously because he didn't veto McCain-Feingold. As an initial matter, if the President can't be taken seriously for signing the bill into law, the Senate can't be taken seriously for having passed it."

The difference here is that the President said beforehand that he believed that the law was unconstitutional. Therefore, he had no business signing it. If a Senator voted for it, but did not believe that it was unconstitutional, then they were not knowingly betraying any vow to uphold the constitution.
10.5.2005 3:29pm
DrewSil (mail):
I think there is a line of questioning that a senator could employ to completely shut down nominee Miers supreme court hopes. A senator could convincingly make the argument that it was a conflict of interest for Miers to head the selection committee with herself as a possible nominee. This demonstrates a lack of impartiality on her part. The appearance of impartiality is essential for a supreme court justice, and even more important in her case, as many of the cases she will be hearing will involve her former employer and friend as a litigant.

Done skillfully one could get Miers to play right into this line of reasoning during the confirmation hearings. First note that serving on the supreme court is a dream come true. Ask Miers how she feels about being appointed, and play up how unexpected and delightful this must be. Ask how she felt when bush told her, and what she did. Then move on to asking a bit more about the process of appointment and how she handled the apparent conflict of interest that judging her own fitness for the position must have entailed. Slightly shift gears from there to questioning how she would handle having Bush as a petitioner before the court. Would there be a similar conflict of interest? How would she avoid the appearance of partiality if she couldn't do so as council. Why should we believe that she would act any differently once on the supreme court than she did beforehand.

As far as I can see stonewalling the initial questions (I'm not allowed to discuss the selection procedure) would be unproductive on Miers part. The appearance of partiallity is present and needs to be rebutted if she hopes to get through the confirmation. The only viable line of counter attack would seem to be that she did protest strongly to Bush about the selection process but that he overrulled her. I doubt she would make this argument, even if it were true, as it paints Bush in a very poor light. She might be able to make some other arguments (the vetting process was largely done by subordinates/outside consultants). At the very least I believe this line of questioning would leave a very strong impression that nominee Miers would have difficulty distinguishing her own interests from those of the public and the law.
10.5.2005 3:36pm
Marcus1:
This whole idea that SOCAS justices need a comprehensive vision of the Constitution is ludicrous. So only radicals will do? I'd much rather have a judge who is open-minded to the merits of an individual case than one who decided 30 years ago what the outcome should be, and will forever thereafter refuse to reconsider.

What does the country benefit from having a "steely" "visionary" on the Court? It's just as meaningless of a goal as preserving the "balance" of the court. Except that preserving the balance actually has the benefit of creating stability and reliability in the law.
10.5.2005 4:12pm
Marcus1:
And by SOCAS I mean SCOTUS.
10.5.2005 4:13pm
Unnamed Co-Conspirator:
Gordon, Chief Justice Rehnquist and Justice Scalia fully answered Breyer's argument.

O'Connor, who never saw a constitutional provision she couldn't make better by changing just a bit, managed to make some adjustments to the Free Speech Clause of the First Amendment in the McConnell case. HM undoubtedly advised W on the constitutionality of McCain-Feingold. I'm sure HM also suggested that the President should have Ted Olsen argue in support of the absurd position (O'Connor's fabricationism again) that racial "diversity" for its own sake is a "compelling state interest" justifying race-based preferences. I'd like to hear her views on the McConnell case and also Grutter v. Bollinger. Regardless of where she comes down on Roe v. Wade (which she won't talk about anyway), if she defends either McConnell or Grutter, or doesn't answer questions regarding those cases, tell W it's time to bring in someone else.

George Will is right about W's judgment on constitutional issues being suspect. And it follows that HM's philosophy on constitutional interpretation is also suspect. One of the problems with the president's lawyer being the nominee is that it's probably fair to assume, in the absence of her clear statement to the contrary, that she's given the ok, constitutionally speaking, for each position the administration has taken, unlike someone from an appellate bench. She's got some explaining to do.
10.5.2005 4:16pm
Allison (mail):
-- He begins by suggesting that the President is uninterested and incapable of making sophisticated judgments about the Court and judicial philosophies. This charge is patently unfair. The President picked John Roberts, and has a stellar first term record of selecting conservative judges for the appellate bench. There hasn't been a liberal in the bunch with the exception of Roger Gregory and Barrington Parker, both of whom the President obviously nominated as part of an early political compromise that got Roberts and others on the circuit bench.

This is nonresponsive. Will's argument is that the President is uninterested and incapable of making sophisticated judgments about *ideas*. Appointing judges who are considered conservative by other experts may or may not be appropriate, but it certainly doesn't justify the idea that George W. Bush is capable of making a judgment about the *ideas* of those conservative judges. In all likelihood, some staffers plowed through the ideas. That Bush has staffers who understand ideas is not enough to argue that *he* has the capacity or interest in making those ideas KNOWN to the public, or judging the validity of said ideas. And he hasn't. Bush can't define "legislating from the bench" in terms of real cases. He might be suggesting that "no court should have found a right to privacy upon which to base Roe V. Wade" but he *hasn't* said that, and even so, it's a really thin statement without educating people on why not--what if he said "Because the word 'privacy' isn't in the constitution? The word "woman" wasn't either until the 10th amendment... Again, the point is, he hasn't made arguments about concepts, and it's unclear that he's given any real weight to those ideas. I think it's quite fair to point out that Bush hasn't made those arguments, and apparently can't, because if he could have, he would have done so by now.

--This is a man who almost lost the Presidency because of the liberal activism of the Florida Supreme Court. He understands full well the power of the Court and has been serious about his appointments in the past.

Huh? Assuming the last comment is true, what does this have to do with the notion of judicial philosophy? People can use the buzz words "liberal activism" and "legislating from the bench", but that doesn't mean those words have any real, concrete meaning. It's utterly unclear to me how even if George W. Bush "full well" understands the power of the court that that means he has a clear idea how the phrase "nor deny to any person within its jurisdiction the equal protection of the laws" is supposed to be reconciled with the Americans with Disabilities Act, or Title 1.


These ideas matter. You can't just read the 14th amendment and suddenly know what to do when 30 years from now, a Robot brings a case before SCOTUS arguing that he's a person, can you? Bush hasn't acted like he has any clarity on what a court should do in such a case, nor how "not legislating from the bench" solves the problem, nor what, precisely, the problems are--other than occasionally, in results, and then, not consistently.
10.5.2005 4:33pm
Adam (mail) (www):
What the heck is a "GOP political lawyer"?

C. Boyden Gray, Brett Kavanaugh . . .
10.5.2005 4:36pm
Medis:
Marcus,

I agree that one need not have a comprehensive theory about the Constitution. Indeed, I tend to be suspicious of reductionist theories that try to make it sound like constitutional interpretation is easy or obvious once you adopt the right philosophy.

But what I don't agree with is that it is OK for a nominee to have that view by default, simply because he or she has never spent much time thinking about the issue.
10.5.2005 4:47pm
Goober (mail):
Bravoooo. She may be incompetent, but "There hasn't been a liberal in the bunch" of prior Bush nominees, so the High Court it is. Typical results-oriented anti-intellectualism.
10.5.2005 4:48pm
Reg Brown (mail):
As I read through the comments so far I've noticed that no one has taken serious issue with my first point. George Will crossed the line when he said the President is uninterested and incapable of making sophisticated judgments about the Court and judicial philosophy. The available evidence, over four years, squarely refutes Will's claim.

Likewise, no one refutes my claim that the President engaged in significant consultations with serious people, contra Will's argument.

As to my comments about McCain-Feingold, no one has taken issue with my central point that the blame for McCain-Feingold's enactment flows equally to the Congress and the President. Some reasonable commenters on this site and elsewhere have pointed out that one poor decision does not justify another (see, e.g., ). I agree, but I never made that claim. I simply described the political reality: the President's party challenged — successfully to some extent — McCain-Feingold in court, and moderated some of its effects. Kleiman's critique of the President's "hypocrisy" in failing to acknowledge his tacit acceptance of the role played by Republican party lawyers in the challenge strikes me as a fairly minor point.

My remaining criticisms of Will related to his view of Supreme Court decisionmaking as a specialized talent requiring years of practice in a unique form of reasoning for which Miers has no training or obvious capacity. Many of the comments here seem to embrace Will's view. What can I say? I've thought about your responses and believe you are wrong.

First, I think the Constitution was written by men who intended it to be accessible to reasonably bright people. To be sure there's a gloss on the Constitution as a result of past Supreme Court decisions, but history suggests that many capable lawyers have been able to comprehend and deal with that gloss without first having served as lower court judges. Consider Lewis Powell. He was a graduate of Washington and Lee, and never served on the bench before being nominated at the age of 64. He was a practicing lawyer, and had previously served as a member of his local and state school boards. He had been active in the leadership of the American Bar Association. And he went on to be a very accomplished Justice.

Miers has a very similar background, coming from private practice and management of a large firm, engaging in public service at the state and local level, serving as a leader in the state and national bar association — and serving in the White House at the highest levels. I suspect many critics of Miers simply don't appreciate how difficult these tasks are, and how many different ways there are for a lawyer to develop the set of skills it takes to be a good Justice.

I am not saying that people of good faith could not prefer another candidate for the Supreme Court. But Miers clearly passes the qualification bar absent some mystical view of judging that Will has embraced.

I also think that the "wise men" view of the Court leads Justices, over time, to get comfortable making decisions that the Constitution, based on a fair reading, leaves to the States and the people.

Finally, a word about evidence that Miers has thought seriously about the Court. For the last six months I suspect she has thought about little else. As Counsel to the President she was in charge of the vetting and selection of all candidates for the Court. And she helped lead the confirmation process for John Roberts. I happen to believe she's modest enough to have taken herself out of consideration if she didn't feel she's ready for the job and the crucible of confirmation hearings. Time will tell.
10.5.2005 4:48pm
annon:
The most interesting part is that she is a "gun-toting" evangelical. Does she really carry a gun?
10.5.2005 4:54pm
BJE (mail):
Unhyphenatedconservative said:


"Ah, so the President fulfills his duty to the Constitution by signing unconstitutional laws so long as he has lawyers (unsucessfully) challenge that law at a later time? This does not pass the laugh test. It doesn't even get a chuckle."


Correct me if I am wrong but if a law is challenged unsuccessfully on constitutional grounds, does that not make the law constitutional?
10.5.2005 5:00pm
Breier (mail):
If a guilty man is acquitted of the crime he committed, does that mean he didn't commit the crime?
10.5.2005 5:07pm
Reg Brown (mail):
My apologies. Two substantive responses were posted while I was typing the note above. In addition, I tried to link to the following site, containing criticism from Mark Kleiman. See Mark Kleiman

The first response suggests that the President is more at fault than Congress for McCain Feingold because he allegedly said in advance that it was unconstitutional. First, I'm not sure I know for sure what the President said and when he said it in the process. In any event, Will's argument is silly and rhetorical - and the commenter probably concurs in that view.

The second respondent simply assumes that the President had someone do his thinking for him when he chose between candidates for the Supreme Court earlier this year and when he selected judges for the past four years. This is a typical argument of the elitists who for four years have been unwilling to accept the possibility that Bush (a graduate of Yale and Harvard, the former w/grades higher than John Kerry's) thinks for himself.
10.5.2005 5:11pm
Alan Meese (mail) (www):
To respond to Mr. Brown's first point, I would ask the following question. How has the President been able to discern Ms. Miers' constitutional philosophy as well as her legal acumen? She has been White House Counsel for less than 1 year, if I am not mistaken. Before that she was Deputy Chief of Staff. What sort of issues has she faced and grappled with while working for the President that gave rise to the display of judicial philosophy and legal acumen that the President sees in her. That is, even if the President himself is an excellent judge of legal talent, on what evidence did he rely?

It's true that the President has chosen some very fine judges for the Appeals Court, e.g., Mike McConnell, Jeff Sutton, Priscilla Owen, Janice Rogers Brown, and John Roberts. Each of them, however, had a record that someone, presumably from OLC or the White House, could examine and evaluate. (And, in the case of Roberts, there was a long paper trail from when he worked at the White House and the SG's office.) Ms. Miers does not seem to have the same sort of record that one could evaluate in this manner. And, who did the evaluating in this case? Not Ms. Miers, I assume. One of her subordinates at the White House Counsel's office?

There may well be evidence on which the President relied. If so, it would be nice to hear what it was.
10.5.2005 5:14pm
Medis:
Mr. Brown,

First, thank you for stopping by.

Second, I think you are right that Powell is the closest you will get among recent Justices to someone with as few relevant qualifications as Miers. Of course, even Powell was more qualified than Miers (eg, being national President of the ABA, rather than the head of a state Bar). So one obvious point is that Miers is setting a new low bar for relevant experience, and indeed you might have to go back to the 19th Century to find someone with similar qualifications.

Third, you argued in your original piece that someone like Miers would be less inclined to fall for the "mumbo jumbo" or to get caught up in things like balancing tests and confusing concurrences. How does that square with your analogy to Justice Powell? Wasn't he precisely the sort of Justice you claim Miers is less likely to be? To cite just two notable examples, it was Powell's concurrence in Bakke that has governed the complex realm of affirmative action, and Powell was the Justice who switched his vote in Bowers (attempting to write a limited concurrence), a decision he later publicly regreted.

In short, your claim about the lack of experience leading to clearer views and greater textualism, and your claim that Miers is like Justice Powell (just less so) do not add up.
10.5.2005 5:15pm
Alan Meese (mail) (www):
In response to BJE, the President has an independent duty to interpret and enforce the Constitution. If a President thinks a bill is unconstitutional, he should veto it and, if the veto is overridden, refuse to enforce it. This way, all three branches must agree that a certain deprivation of liberty is constitutional before the deprivation occurs. See Frank H. Easterbrook, Presidential Review 40 Case Western L. Rev. 905.

Indeed, President Reagan vetoed, on Constitutional grounds, a bill imposing the so-called Fairness Doctrine, even though the Supreme Court had previously upheld the doctrine as constitutional. The President swears an oath to the Constitution, and not to the Supreme Court.

At the same time, I'm not sure that the fact that the President signed McCain-Feingold ipso facto undermines his ability to make exceptional appointments.
10.5.2005 5:25pm
Unnamed Co-Conspirator:
Reg, when the president says his nominee shares his judicial philosophy, it's not enough to say that he doesn't think judges should legislate from the bench. Faithfulness to the constitution sometimes demands that the Court call out a conflict between an act of Congress and the Constitution, or an act of a State and those provisions of the Constitution which apply to the states. The administration's positions on McCain-Feingold and in the Grutter case suggest that the President agrees with at least two decisions that indicate a "living constitution" philosophy, and it's not unreasonable to conclude, until she says otherwise, that Miers is of the same view. That's not the sort of justice that the President told us he would nominate.
10.5.2005 5:26pm
Tim Schultz (mail):
Reg-

You're right that the court needs to be de-mystified. You're right that, at least by historical standards, Ms. Miers is qualified for this position. You're right that she's quite comparable to Powell, and that is exactly what worries me. In 25 years of Reagan-Bush Supreme Court appointments, only two nominees have satisfied our expectations once confirmed: Scalia and Thomas. I'm quite certain that candidate Bush was familiar with that satisfaction when he named them as justices he admired. Both gentlemen had a long history of thinking about the proper way to interpret the constitution, and I believe it is that history that has made them champions of principled judicial restraint. It is *possible* that Ms. Miers has a similar history of such hard thinking, and it is *possible* that she will be similar to Thomas, who also had a rather thin paper trail. But your analogy to Powell makes my point: it's also quite possible she'll be another Powell. And for a president who sent clear messages that he prefers Scalias and Thomases, a Powell is unacceptable.
10.5.2005 5:28pm
Medis:
Tim,

Just an aside, but I and others have looked into the biographies of the non-judges who served as Supreme Court Justices. I think a good case can be made that she would be one of the least five qualified Justices (as measured by experience) of all time.

Is that what people mean by claiming she is qualified by "historical standards"? That all we have to do is find a couple Justices throughout history who were even less qualified (or, in Powell's case, a Justice who was only slightly more qualified)?

It seems to me like we should not set the bar as low as "just so long as she is not the least qualified ever".
10.5.2005 5:36pm
Kazinski:
Gordon,

Heresy is exactly what the collective rights argument is and that is why it needs to be stamped out. When the 2nd states "... the right of the people to keep and bear arms, shall not be infringed.", how is that different from "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ..."? Is the 4th amendment collective too, and only serves to protect the national guard from warrantless searches?

As for Brier's intellectual arguments for McCain-Feingold, I'm sure they are weighty and persuasive, and there are some great arguments to offer against "offensive" speech, or dangerous ideas like communism, or anti-war rhetoric in the middle of a war. The only thing I can offer to counter such overwhelming arguments is "Congress shall make no law...".

As for Miller vs. US, no where in that opinion does it make any sort of argument for a collective right, if anything it buttresses the individual right position. As far as it goes is to say that a sawed off shotgun is not an appropriate weapon for a militia, so congress can regulate it. What it doesn't say is that congress can regulate weapons that would be reasonable in a militia, such as a sidearm, assault rifle, or .75mm cannon.
10.5.2005 5:45pm
JohnK (mail):
I don't see how McCain Feingold has anything to do with this. The truth is that Bush made a political calculation and signed a bill he didn't like and thought was unconstitutional to keep John McCain from thowing a temper fit and running as a third party in 2004. The fact that the President (gasp) makes cold politcal calculations rather than always falling on his ideological and constitutional sword does not mean that he is not qualified to understand constitutional law. In that regard, Will, as he often is, is just being silly.

As far as Miers, her nomination has grown on me becuase I do not like the objections people are making to it. I don't think that the entire Supreme Court should be made up of law professors and appellete judges. Clearly, there is a place for them, but not necessarily for every seat. I am not sure that a Supreme Court made up of Posner, Bork and Epstein on the right and Tribe and Dworkien, and McKinnen on the left would necessarily be best for the country. There should be a place on the court for people with legislative, exectutive, and court room experience. The court should not be the exclusive perview of Ivy League ivory tower elites. Some of the members should bring the real experience of governing or representing real clients in the real world. In that sense, Miers and Roberts are a great pair. Miers seems to be by all accounts a brilliant litigator and first rate lawyer with a lot of litigation and government experience. Depending on how she does in her confirmation hearing, I don't see why she is necessarily a bad choice.
10.5.2005 5:54pm
Perseus (mail):
As I was teaching Tocqueville's Democracy in America to my students, this passage struck me as being particularly appropriate in light of the nomination of Miers to the Supreme Court:

"[The heads of democracies] must strive to banish chance as much as possible from the political world.

The sudden and unmerited elevation of a courtier produces only a passing impression in an aristocratic country because the sum of institutions and beliefs habitually forces men to advance slowly on paths from which they cannot depart.

But there is nothing more pernicious than such examples offered to the regard of a democratic people. They serve to hasten its heart down a slope along which everything is carrying it. It is therefore principally in times of skepticism and equality that one ought carefully to avoid that the favor of the people or that of the prince--which chance favors you with or deprives you of--take the place of science and of services rendered. It is to be wished that each instance of progress appear to be the fruit of an effort, so that no greatness be too easy and that ambition be forced to fix its eye on the goal for a long time before attaining it." (Vol. 2, Part 2, Chap. 17)

Has Miers been forced to fix her eye on the goal of being elevated to a position on the Supreme Court for a long time before attaining it (like Chief Justice Roberts)? I think not.
10.5.2005 5:56pm
Shelby (mail):
I'm surprised that Orin accorded such weight to Reg Brown's essay. Reg argues that Miers will be sufficiently conservative, and that she has some background that is unusual for a SC nominee but that he considers relevant. He fails completely to address Miers' lack of substantial interaction with the law at the level required daily of a Supreme Court justice.

Yet this is the core of Will's argument: Miers is fundamentally not qualified, and therefore her nomination can be nothing but cronyism. He deals briefly with the "will she stay conservative" question, but that's peripheral for him.

So long as this is a legal blog, it should be peripheral here too. The woman is grossly unqualified for this post; she would never have been nominated by anyone else. Reg Brown not only fails to refute Will, he fails to remotely challenge him.
10.5.2005 5:57pm
Wild Pegasus (mail) (www):
George Will crossed the line when he said the President is uninterested and incapable of making sophisticated judgments about the Court and judicial philosophy. The available evidence, over four years, squarely refutes Will's claim.

How hard is it to ask the Federalist Society for a list of intelligent, qualified conservative lawyers whom the Society thinks would be fine judges? I don't ask this flippantly. Does Bush really care about judicial philosophy or is he looking for ConservativeJudges++?

The argument doesn't apply to Bush only. A Democratic president could just as easy nominate a list of intelligent, qualified liberal lawyers whom the ABA or ACLU thinks would make fine jurists.

Really, I don't think there's enough evidence either way to say he has or he hasn't wrestled with sophisticated judicial philosophy. But there's good reason, from what else we know about him, to think that he hasn't.

- Josh
10.5.2005 5:59pm
JohnK (mail):
Shelby,

The question is what does it mean to be "qualified" for the Court. I think Reg demolishes Will by pointing out the all of the "qualifications" Will trots out are rediculous. Will makes the arguement that unless you have been in a classroom or on an appelete seat in some monastic existence contemplating the Constitution, you are unqualified for the bench. That is bunk.

First, people tend to view the Supreme Court through the prism of a few high profile cases on contenous issues. The fact is the court decides hundreds of cases on all kinds of minutia and archaic but inportant questions of federal law. No justice is fully versed in all areas of the law and every justice must rely on his clerks and learn on the fly. Further, I would bet you that Maiers because of her extensive experience as a business litigator has a better understanding of areas such as corporate and financial laws than any sitting justice. Doesn't that experience and knowledge count for something? Shouldn't the real life experience of actually litigating these cases count for more than writing law review articles on them?

Second, I go back to my point above, there ought to be a place for someone other than professors to be on the Supreme Court. This stuff is not rocket science. I don't think it takes a lifetime of study and thought to be a good justice. A lifetime of experience and good judgement can be more valuable.

Again, I want to see the hearings and actually listen to Miers before I make a final decision, but Will is being an elitist twit for dismissing it out of hand.
10.5.2005 6:09pm
jACKJOHN (mail):

REG BROWN: "Consider Lewis Powell. He was a graduate of Washington and Lee, and never served on the bench before being nominated at the age of 64. He was a practicing lawyer, and had previously served as a member of his local and state school boards. He had been active in the leadership of the American Bar Association. And he went on to be a very accomplished Justice."



Mr. Brown is correct that Lewis Powell is the Justice most analagous to Harriet Miers; in other words, she has no shot, based on her resume and what we know about her, of being reasonably compared to any of the others. (People continually try to compare her to Rehnquist or Robert Jackson and fail, primarily because both held high positions in the federal government that required formulating federal questions or trying them in Court, for several years before ascending to SCOTUS.)

That said, Mr. Brown leaves out an important fact which utterly destroys his case. Lewis Powell was a member of the American College of Trial Lawyers. He was, literally, one of the most respected and taletend lawyers of his day. It is one thing to select the head of the national ABA, who also happens to be one of the best trial lawyers in the country for SCOTUS. It is something else to pick a corporate lawyer from Texas that the President vouches is a hard worker. No one is claiming Harriet Miers is one of the best trial lawyers in the country. She has not been inducted into the American College of Trial Lawyers. Thus, she is no Lewis Powell.

Mr. Brown's other arguments on George Will are similarly weak. But he doesn't care. He's probably just writing these posts because Al Gonzalez called him up and asked him to defend the President's choice. You know, Al, his former boss? Bias, people.
10.5.2005 6:16pm
Reg Brown (mail):
This will probably be my last post -- although I must say I like the fact that there is civil dialogue going on here.

I want to respond to the Powell points, because like moths to the flame some of the respondents have gone for the " aha! she'll be a moderate just like Powell" argument.

But first a factoid for one commenter who says Powell was a national bar leader while Miers was merely a state bar leader. If you read the news articles carefully you'll find that Miers was actually slated to be the number two official at the ABA when she was tapped to join the White House staff. In the arcane world of ABA politics, that means she was a lock to eventually become ABA president. Miers is a big deal lawyer, and if you get outside of the echo chamber of professors and DC types, you'll hear that from lots of leading lawyers.

In addition, Miers served as the Deputy Chief of Staff to the President for Policy and as Counsel to the President. Again, these are incredibly tough jobs that require the holders to grapple with dozens of difficult constitutional and policy questions, often in a single day.

On the merits, the comparison to Powell is simply meant to demonstrate that one can come to the Court with a background like Miers has and still do the job. Few serious people argue that Powell was not an able Justice as a technician. The failure of some critics of Miers' qualifications to deal w/the Powell analogy is one of the reasons I've suggested that what is really animating the critics is an ugly form of elitism.

I did not say, as one respondent asserts above, that Miers' lack of judicial experience will make her a more likely textualist. I said that those who think along the lines suggested by George Will are more likely to be susceptible to "wise man" disease, favoring intellectual constructs that are complex and analytically satisfying even if not supported by the Constitution's text, structure and history.

My view is that Miers is not likely to be a Justice like Powell on the merits, based on my own experiences with her (I know that isn't all that helpful to you -- but I'm a conservative with a long paper trail and apparently that counts for something on this thread), and based on my conversations with others who have interacted with her throughout the selection process for John Roberts, and in other contexts.

Would it be nice if she had a longer paper trail? Frankly it doesn't matter much to me. Once you're on the Court what you've written down in the past does not bind you at all. If a person is inclined to "grow" he or she will "grow." Miers is not a stealth candidate. The President says she's a conservative. People who have been around her say she's a conservative, as does she. And she's serving at great personal sacrifice in a conservative administration. For me that's enough.
10.5.2005 6:18pm
Allison (mail):
---The second respondent simply assumes that the President had someone do his thinking for him when he chose between candidates for the Supreme Court earlier this year and when he selected judges for the past four years. This is a typical argument of the elitists who for four years have been unwilling to accept the possibility that Bush (a graduate of Yale and Harvard, the former w/grades higher than John Kerry's) thinks for himself.

"A typical argument of the elitists" ??? Talk about ASSUMPTION! Talk about ducking the discussion!

We have no evidence to date that he has that about these issues, because we know for a FACT that he hasn't DISCUSSED them with the American public. Not in a speech, not in a press conference. Not in the last 5 years. The only time he came close to such a discussion about the constitutionality of law, was when he discusses a SPECIFIC law, and he said that McCain Feingold was unconstitutional, and that it was his duty to not sign something unconstitutional (which he then signed.) Could he have thought about such arguments? Yes, he could have. But we know that he hasn't MADE THE ARGUMENT to the public about his view of the nature of the judiciary in our government. So, he's clearly uninterested in making such arguments.

Was he capable? Have we seen any such evidence? Arguing that picking a conservative means he must have had such a capacity as to form some argument about the role of the judiciary simply does not follow.
10.5.2005 6:20pm
SimonD (www):
Mr. Brown -
President Bush campaigned based on the promise of appointing Justices "in the Scalia/Thomas mold." There are a large number of people who supported him based on this promise and this promise alone.

My question for you is really incredibly simple: Does President Bush believe that either Roberts or Miers are "in the Scalia/Thomas" mold?

I would submit that if the answer is yes, then it is obvious that he is "uninterested and incapable of making sophisticated judgments about the Court and judicial philosophy." If the answer is no, then President Bush mislead his supporters. Which leaves us to choose between concluding he's incompetant or concluding that he's a liar. Perhaps you have a third alternative to offer?
10.5.2005 6:29pm
jACKJOHN (mail):
On the merits, the comparison to Powell is simply meant to demonstrate that one can come to the Court with a background like Miers has and still do the job.

Yes, but Lewis Powell's merits included being inducted into the American College of Trial Lawyers, because he was legitimately a great lawyer. Miers does not share that pedigree. I suppose that makes me an elitist. Well, that's better than being a shill for a corrupt administration, Mr. Brown.

And in reply to "a factoid for one commenter who says Powell was a national bar leader while Miers was merely a state bar leader," that was not my argument. The word "merely" appears only in your sophist counter. Miers never became ABA leader because she went to the White House instead. In your fantasy world, that means she grappled with difficult constitutional issues on a daily basis. According to media reports and David Frum, whose conservative credentials and seeing-Harriet-in-action credentials rival yours, it meant she was a nail-biting paper-pusher who was shepherded away from the intellectual heavy-lifting and policy-making that Joshua Bolten used to do. Just to spell it out for you, Mr. Brown, not becoming head of the national ABA because you get a crony position where you are known to be incompetent is not proof that you can be a competent Supreme Court Justice.

You say your conservative creds count on this blog, but apparently you do not read it. Jim Lindgren had a post on here today demonstrating that Harriet Miers can't even write a decent sentence. But I suppose it is elitist to expect Supreme Court Justices to write well. Riiiight.
10.5.2005 6:32pm
Been There, Done That:
The President says she's a conservative. People who have been around her say she's a conservative, as does she. And she's serving at great personal sacrifice in a conservative administration. For me that's enough.

Substitute the word "liberal" for "conservative," and President Clinton could have given us Justice Lewinsky.
10.5.2005 6:44pm
Medis:
To summarize:

Most people seem to think that it should not disqualify someone if they have not been a professor or judge. Most people also seem to think that someone who was either a high government official and/or a top litigator may be qualified.

But the issue is not whether Miers MIGHT be qualified in light of her chosen fields. The issue is whether she IS qualified. And on that issue, it is not enough to say that she was litigator--we should still be looking for one of the most qualified nominees within that field (as, in fact, Roberts was, and as Powell was). Nor is it enough to say she served in government--again, we should still be looking for one of the most qualified nominees possible in that field (as Rehnquist was).

And no one is seriously claiming she was one of the top litigators in the country. Similarly, no one is seriously claiming that her service in the White House truly distinguishes her as one of the top possible nominees who has served in government (sorry, but White House Counsel is not the same thing as heading up the DOJ, the OLC, or the EEOC).

But they repeatedly try to pretend that the issue is not whether Miers is qualified, but rather whether a person like Miers MIGHT be qualified--because changing the issue like that is the only way they can avoid the obvious (that Miers simply is not as qualified as Powell, Rehnquist, or probably 90+% of the non-judge Justices who have come before).

Incidentally--could have become #2 in the ABA? And so could have become #1 in the ABA? It is nice that those things could have happened. But they didn't, and I don't know anyone who gets to list on their resume the experiences they could have had but didn't. Next we will be hearing that given recent precedent, Miers could have become Attorney General, and therefore is as qualified as anyone who actually WAS Attorney General. These arguments don't pass the laugh test ... but I guess they are all that is left.
10.5.2005 6:49pm
SimonD (www):
Most people seem to think that it should not disqualify someone if they have not been a professor or judge.
In this day and age, I disagree. Nixon took chances on Blackmun and Rehnquist; he got lucky on one of them. There is simply too much at stake to be taking chances - my rule (and if this is elitist, it's a weird sort of elitism where I'm not, and never will be, a part of the elite I'm favoring) is indeed that it should disqualify someone if they have not been a professor or judge and left a lengthy paper trail.
10.5.2005 6:55pm
Shelby (mail):
I'd be fine with someone who hasn't been a law professor or a judge, but they'd have to show other top-level experience grappling with Supreme Court-type legal issues. A former Solicitor General, for example. State and federal AGs amy qualify by this standard, though my impression is that they actually do more administrative than legal work -- and I think Miers is well qualified to be an AG.

Failing that, at least someone who has written extensively and publicly about national legal issues, though you'd need more than a law degree and a stint as the Times reporter on the Supreme Court beat.

I agree with those, such as JohnK (in criticizing me), who note the value of expertise in special areas. A transactional expert? Great! But only if you otherwise qualify. I'd love to see more tax or patent knowledge on the Court, but such a person needs to have a solid grounding as well in Constitutional jurisprudence. That's the heart of the Court's work, and it's much harder to correct errors in that area than in statutory interpretation.
10.5.2005 7:14pm
Jim Rhoads (mail):
JackJohn:

I think you are giving Frum's testimony a bit too much credit.

If Miers was merely a neurotic paper pusher, she would not have survived as White House Counsel for Bush who, by reputation at least, does not suffer fools gladly in his personal staff. What ever else Card, Rove, et al may be, they are very bright, they work hard and are very competent at what they do.

Since John Dean's demise in that position, paper pushing is not a quality generally sought after for White House Counsel.

Why would GWB want to embarass himself by nominating a person who doesn't show well in the hearings? I can't imagine he would.

This is an instance in which the hearing will tell us a lot. I await with great anticipation.
10.5.2005 7:23pm
Challenge:
I think the outrage expressed about Miers is more closely tied to the Roberts nomination than many think. We got a blank slate with Roberts, but because he was supposed to replace O'Connor and his resume was golden, conservatives went along. The conventional wisdom was that this next nomination was going to the nomination intended to "rally the base." Instead we got black slate #2, but without the golden resume. Color me unimpressed (not with Miers), but with the President.

Miers may turn out to be an excellent originalist if she is confirmed, but we don't know that now. We have little reason to believe that other than Bush's word.
10.5.2005 7:23pm
Challenge:
"There is simply too much at stake to be taking chances - my rule (and if this is elitist, it's a weird sort of elitism where I'm not, and never will be, a part of the elite I'm favoring) is indeed that it should disqualify someone if they have not been a professor or judge and left a lengthy paper trail."

Yes, but the reasons for this demand are O'Connor, Kennedy, and Souter. Those are good reasons to want a lengthy paper trail on a nominee. That is why I was disappointed with Roberts, and expecting different this time, why I am crushed with this nomination.
10.5.2005 7:30pm
Christopher Fotos (mail) (www):
As an initial matter, if the President can't be taken seriously for signing the bill into law, the Senate can't be taken seriously for having passed it.

I stopped reading there; this is an unserious non-point. The issue isn't who the Senate nominated, since indeed it cannot; it's who the president nominated, and what it tells us about his stewardship of the Constitution. Since we don't have much to go on than "trust me," we look for information elsewhere, and the results are gravely dismaying. McCain-Feingold is an abomination against the foundation of our society and government, and to toss it aside as one of many bad laws that get passed.... Such reasoning does not interest me.
10.5.2005 7:30pm
David M. Nieporent (www):
This is an instance in which the hearing will tell us a lot. I await with great anticipation.

I don't see how it can. This is an instance -- unlike with Roberts -- where we actually need her papers in order to evaluate her, and Bush isn't going to turn them over. She obviously won't comment on any case or any issue that might come before the court. In order to avoid opposition from liberal interest groups, she's likely to only mouth platitudes about judicial modesty, and she'll tell us (a la Roberts) about how she has no grand overriding philosophy. So what will we be left with?
10.5.2005 7:31pm
Gordon (mail):
Let's look at the last few justices who had no bench experience when appointed, from most recent going back:

William Rehnquist
Lewis Powell
Abe Fortas
Arthur Goldberg
Byron White
Earl Warren
Tom Clark
Harold Burton
Robert Jackson
James Byrnes
Frank Murphy
William Douglas
Felix Frankfurter
Stanley Reed
Hugo Black
Owen Roberts
Harlan Stone
Pierce Butler
George Sutherland
Louis Brandeis
James McReynolds

I think that's far back enough. A list of the good, the bad, and the ugly, but not easily distinguishable from the list of justices with prior bench experience.
10.5.2005 7:39pm
jACKJOHN (mail):
David Nieporent gets it. We won't GET a shot to examine her, because the examination process will just push her through. This carping right here on this blog is about as bad as it will get for Miers. The media will try to be fair and report the conflict. Republican Senators will hem and haw, and Miers will probably get through committee, and most Republicans (and a decent number of Democrats believing this is the best they're gonna get) will vote for her. And then she'll be deciding tough cases she is ill-prepared to handle. The only way to do something about it is to prevent her nomination from getting to the floor of the full Senate.

10.5.2005 7:41pm
jACKJOHN (mail):
www.opposeharriet.blogspot.com
10.5.2005 7:42pm
Gordon (mail):
Actually, there is a pretty close parallel between Harriet Miers and the justice she would replace.

O'Connor had some bench experience, but not much (seven years, three of which on the Arizona Court of Appeals).

Miers is an upper-middle aged White Republican woman.

Both from a state in the Southwest.

Both have a lower level of electoral experience (Arizona State Senate vs. Dallas City Council).

Both weere plucked from national obscurity by the President.

And both have no track record.

The idea of replacing O'Connor with a new O'Connor would drive a lot of people from Sam Brownback to George Will to some of the academics on this site crazy.

Personally though, I think O'Connor is the best of the current justices, so a new O'Connor strikes me as a GOOD THING.
10.5.2005 7:44pm
Reg Brown (mail):
Allison,

Sorry to be so dismissive in my response to your earlier post. I must say, however, that your second post isn't very persuasive on the merits. Contrary to what you've said, the President has given many many public speeches about the judiciary and judicial philosophy. I think the first post-election speech came when he held an extraordinary event in May 2001 to introduce his first group of appellate nominees. He consistently brought the subject up on the campaign trail, and I believe the subject even came up during the 2004 Presidential debates.

One last point, because I think the focus has shifted from the subject of my original (and admittedly flippant)note to Orin -- which was the unfairness and sloppy thinking in George Will's column. Will not only says that the President is incapable and uninterested in making sophisticated judgments about judicial philosophies, but also that Miers name wouldn't show up in any of the 10,000 places on a list of 100 good Court prospects prepared by 100 serious and thoughtful people. This is really damning stuff. Yet a friend just reminded me that on numerous occasions Miers did in fact show up on the National Law Journal's list of the Nation's top 50 women lawyers, and the Nation's 100 most powerful attorneys. Her credentials may not be those that Will is looking for, but they are substantive and substantial.

My criticism of Will's column is by no means intended as a sign of disrespect or a lack of admiration. He's a really amazing journalist and I wish I could write half as well as he can. But on this issue I really wish he'd think again, because I believe he's dead wrong.
10.5.2005 7:49pm
jACKJOHN (mail):

REG BROWN: "Yet a friend just reminded me that on numerous occasions Miers did in fact show up on the National Law Journal's list of the Nation's top 50 women lawyers, and the Nation's 100 most powerful attorneys. Her credentials may not be those that Will is looking for, but they are substantive and substantial."



Yeah, and Hillary Clinton was on that list of the mist "influential" lawyers for her Whitewater scandal. Move over, Lewis Powell!

www.opposeharriet.blogspot.com
10.5.2005 7:51pm
Bob Rogers (mail):
Will's worst point is McCain-Feingold. Bush signed it for transparent political reasons. But the court (which has plenty of people with the credentials Will seems to crave) upheld it. Not a great marker for "seriousness."

Worse, those against it were not up to the task of advocating their positions. The common thread in Bushes two picks is that they were successful advocates. If the hearings show that Miers is one of the best lawyers in Texas (and I agree that they have to show that) then I think she should be confirmed. Her client list and position in Texas law circles is a good start on the argument for her side. The idea that constitutional law is a form of rocket science best kept away from grubby little lawyers who work for clients like Microsoft and run one of the biggest law firms and Houston and Dallas deserves all the contempt we can give it.
10.5.2005 7:59pm
SimonD (www):
Mr. Brown - not going to answer my previous point, then? Does Bush think this nomination lives up to his promise of a Scalia or a Ginsburg?

Challenge-
the reasons for this demand are O'Connor, Kennedy, and Souter. Those are good reasons to want a lengthy paper trail on a nominee. That is why I was disappointed with Roberts, and expecting different this time, why I am crushed with this nomination.
I don't think we disagree, except that I not only reject this nominee for the lack of a paper trail, I also previously rejected Roberts for precisely the same reason, so I feel that I am - to the inverse of Justice Harlan's proposition - consistent if not necessarily right.
10.5.2005 7:59pm
jACKJOHN (mail):
The idea that constitutional law is a form of rocket

science best kept away from grubby little lawyers who work for clients like Microsoft and run one of the biggest law firms and Houston and Dallas deserves all the contempt we can give it.


I don't think anyone suggests anything of the kind. We need to stop with the elistist straw-man. It is not elitist to insist your pilot not be a drunk. I think people are looking for real practical experience, of any kind, with federal constitutional law. Being an idiotic Governor or Senator would past most people's tests. That's what's so sad.
10.5.2005 8:04pm
Wince and Nod (mail) (www):
Kazinski,

A .75mm cannon shoots a very small shell! I doubt it would be suitable as a weapon for a militiaman. (wink)

Yours,
Wince
10.5.2005 8:10pm
Johh Fee (mail):
As part of his anti-elitism argument, Mr. Brown argues "I think the Constitution was written by men who intended it to be accessible to reasonably bright people." Perhaps so, but what about all the other federal laws and regulations that Justices must interpret? Would Mr. Brown say that of the tax code? FDA regulations? Medicare regulations? What about one's ability to switch between all of these subjects and apply them intelligently, as well as to apply federal preemption doctrines, federal jurisdiction doctrines, habeas corpus doctrines, and many others?

When I clerked for Justice Scalia, I was struck by how many technically difficult cases the Court encounters, which have little to do with political ideology, and which have significant implications for real people. I also noticed that some Justices are better at handling these issues than others. Assuming that a Justice as the right ideology (which I agree is important, and do not dispute in the case of Miers), we are all far better off with a Justice who is exceptionally talented and experienced in the kinds of issues that come before the Court (a person like John Roberts) than someone who is unexceptional. This is not elitism, but appreciation for the difficulty and importance of the work that we entrust to Supreme Court Justices.
10.5.2005 8:55pm
Medis:
Gordon,

I find it striking that O'Connor was still clearly more qualified than Miers, in an era when qualified women were harder to find.

Johh Fee,

How dare you suggest that a Supreme Court Justice needs to be more than just literate. For shame!
10.5.2005 9:08pm
Perseus (mail):
On the merits, the comparison to Powell is simply meant to demonstrate that one can come to the Court with a background like Miers has and still do the job. Few serious people argue that Powell was not an able Justice as a technician. The failure of some critics of Miers' qualifications to deal w/the Powell analogy is one of the reasons I've suggested that what is really animating the critics is an ugly form of elitism.

Well, some of us think that it would be nice if the president appointed people to the Supreme Court who have a decent chance of being able to excel at their jobs, not just do them as able technicians.


Would it be nice if she had a longer paper trail? Frankly it doesn't matter much to me. Once you're on the Court what you've written down in the past does not bind you at all. If a person is inclined to "grow" he or she will "grow." Miers is not a stealth candidate. The President says she's a conservative. People who have been around her say she's a conservative, as does she. And she's serving at great personal sacrifice in a conservative administration. For me that's enough.

That's apparently enough for Reg Brown, but that's not enough for those of us who are not Bush courtiers. And the point of having a longer paper trail is not only to gain some insight into Miers's judicial philosophy (which certainly can change) but also to discover whether she's seriously thought about Constitutional issues at all. So far, there's been no direct evidence that she has: it's all been hearsay. And given the Ginsburg rule, we are unlikely to get any insights.

Now it would be one thing if the president had first nominated one of the other individuals frequently mentioned, and in the event that the Senate rejected that nominee, the president then turned to Miers as a second choice. But I cannot see why Miers should be preferred to any of those clearly more qualified individuals.
10.5.2005 9:59pm
Reg Brown (mail):
John Fee,

Harriet Miers is exceptionally bright and talented, and she has dealt with very complex regulatory and statutory questions as Deputy Chief of Staff to the President for Policy. Her supporters include fellow Scalia clerks (stars like Noel Francisco) and others who understand the challenges of judging at the appellate level.
10.5.2005 10:02pm
topcat:
Will speaks for most conservatives:we did not want another O'Connor or Powell (at best) we wanted someone who would move the legal profession by the power of their arguments written from the bench. Here are my reasons for recommending a no vote by Republican Senators:

a) Justice O'Conner had a more reassuring resume of real world experience; i.e., state legislature leader, fought for Reagan against Jerry Ford in the Republican primary, etc.

b) She's a wide-eyed naif who thinks that Bush is "the most brilliant man I've ever met." What happens if she establishes a girls club with Ruth Ginsburg and decides she's really the most brilliant person in the world?

c) I do not think Souter was a closet liberal when he was nominated; I think he was a solitary, eccentric Milquetoast that got dominated by his clerks and the Court culture. Sound like anybody?

d) Conservatives have busted their butts for 30 years for this opportunity, and every time we have the football snatched away at the last minute. We are tired of playing Charlie Brown to the Bush family's Lucy.
10.5.2005 10:12pm
Johh Fee (mail):
Reg Brown, I hope you are correct about Ms. Miers exceptional talents. I look forward to being convinced.

But then I take it you have abandoned your anti-elitism argument and are now arguing that she is in fact one of the intellectally elite who can handle the job with uncommon brilliance and practical wisdom. I hope you are right.
10.5.2005 10:15pm
Kyle Radison (mail):
Mr. Brown did not actually argue that Miers is one of the intellectually elite. He argued that some of intellectuals who are also elites support her. Whether elites with intellect support a nominee is meaningless. What matters is that she can excel in the job.
10.5.2005 10:29pm
pat (mail) (www):
"Will's final argument is that Miers is an affirmative action quota pick."

Huh? Bush picked her years ago as his own counsel. A guy in his position would want and could afford the best. He went with Miers. Obviously there was some sympatico, but a whole bunch of male lawyers could have fit the bill.
10.5.2005 10:31pm
HKM (mail):
Oh, for Heaven's sake- I've just read close to 100 comments here, and the term "qualifications" has come up at least that many times. Lets cut to the chase- the qualifications for a Justice are as follows: be nominated by the President, and be confirmed by the Senate. Nothing else.

Would I have preferred another candidate? Yeah, probably. But as far as I can tell- the Constitution does not require a legal scholar, a graduate of a "top-tier" law school, nor a even a lawyer.

HM has been nominated, so she's met the first qualification. If, after hearings, she's confirmed, then she will have passed the only other qualification the Founders thought was necessary.

The reasons you have been discussing here may (or may not) be good reasons for a Senator to vote for or against- but calling them "qualifications" is a misnomer at best.

My $0.02- your mileage may vary.
10.5.2005 10:35pm
Henry Woodbury (mail):
It seems to me that there are two different "quality" arguments against Miers. One is that she isn't smart enough; the other is that she doesn't have the right kind of experience.

I think the record is conclusive that the first statement is false and the second statement is where the debate should center.

Unfortunately, reading many comments on this and other sites, there's a constant fudging of the difference between Mier's smarts and her experience. The argument appears to be that since she chose to attend the wrong university and work in the wrong jobs, she must be second rate.

I think Reg Brown does a great job pointing out that the jobs she has done are not for lightweights. What I find interesting is that she seemingly lacks something we take for granted with Roberts (and all the "celebrity" jurists who were passed over) -- she lacks the driving ambition that causes someone to seek out high profile jobs. Everywhere she's been, Mier has done superb work. It's not highly visible work, but if I may speak for behind-the-scenes people everywhere, visibility is overrated.

I think it's fair to ask that a Supreme Court nominee have demonstrated experience in constitutional law. I really think the hearings will be telling -- either Miers will show command of the subject or she will flounder. But aspersions on Miers' general capability or intelligence are unfounded.
10.5.2005 10:58pm
Cornellian (mail):
I think the argument is that since she attended a law school not known for constitutional scholarship and has worked in various capacities not requiring anything beyond a rudimentary understanding of constitutional law why should anyone believe that she's up to the task of constitutional heavy lifting that the job of SCOTUS justice requires?

Unfortunately, reading many comments on this and other sites, there's a constant fudging of the difference between Mier's smarts and her experience. The argument appears to be that since she chose to attend the wrong university and work in the wrong jobs, she must be second rate.
10.6.2005 12:05am
jgshapiro (mail):
The question isn't whether she is adequate, it is whether she is one of the best. Surely, she is adequate; she could do the job reasonably well. But with only nine spots on a highly important institution, and with spots opening up only once in seven years (on average), adequate isn't enough.

Is she one of the top practicing attorneys in the nation? With no judicial experience and no comparable political experience, I would hope the answer is yes. But it seems as though it is no, and no one really disputes this. She is no David Boies, she is no Ted Olson. If you asked several experienced lawyers to name the top 20 trial lawyers in the nation, none of them would name Harriet Miers. If you asked several experienced lawyers to name the top 20 corporate lawyers in the nation, none of them would name Harriet Miers. If you asked several experienced lawyers to name the top 20 bar leaders in the nation, none of them would name Harriet Miers. That is the problem.

I'm sure Miers is a nice person and a good lawyer. But that is not good enough. The arguments in favor of Miers seem to resemble those in favor of Harrold Carswell in 1970: ""Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?" - U.S. Senator Roman Hruska. The argument didn't work for Carswell, and it shouldn't work for Miers.
10.6.2005 2:29am
M. Simon (mail) (www):
I think Miers is a stalking horse for JR Brown.

First step to get Brown. Defeat Miers.

BTW Hruska was my Senator at the time. Some days he was smart. Some days he was not.
10.6.2005 3:06am
AST (mail):
I was astonished at Will's knowledge. I had no idea that the Constitution requires justices to be among the "leading lights of American jurisprudence" or that the President must have the "inclination and ability to make sophisticated judgments" about competing approaches to interpreting the Constitution. I'd never heard about the requirement that any president who is "not disposed to such reflections," seek the counsel of "people capable of such judgments." He doesn't say how we determine who those leading lights or who the people capable of such judgments are, but I guess they will identify themselves. Apparently Bush neglected to consult Will on whom he should nominate.

One thing bothers me, however. Why don't we impose the same requirements on who can be a Senator?

Brit Hume noted that most of the outspoken opponents of Miers' nomination are graduates of Ivy League schools. I thought they were mostly people who write for NRO, but that wouldn't include Bill Kristol or Ann Coulter, so Hume's formulation is probably more accurate.

I had never believed the claim that conservatives are bigots before, but this controversy has opened my eyes. I thought they believed in democracy, equality and the Constitution. I guess I wasn't capable of such judgments.
10.6.2005 3:42am
Perseus (mail):
AST: In Federalist 76, Hamilton says that it is the duty of the president "to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them." Of the people that the president considered, does Miers have the fairest pretensions to the qualities requisite to be a member of the Supreme Court?
10.6.2005 5:32am
Reg Brown (mail):
JGSHAPIRO: Wonder if you picked "Top 20" because you knew that Miers has on several occasions been listed as one of the Top 50 women lawyers in America by the non-partisan National Law Journal, and that she has also been listed by the National Law Journal as one of the 100 most powerful lawyers in the Country by the National Law Journal? Prediction, conservatives will come to rue this day if the attempt to impose an extra-constitutional "elite" qualification on Supreme Court nominees succeeds. A Court full of former Supreme Court clerks, OLC heads, professors and Ivy League grads will become more and more insular and more and more arrogant over time....
10.6.2005 7:43am
Medis:
Mr. Brown,

First, I want to note that you cited her brief time of Deputy Chief of Staff as the time in which she had experience with complex regulatory issues. I find this particularly disturbing: for one thing, that is clearly a policy position, not a legal position. For another, you are again lowering the bar dramatically when it comes to something like executive experience. Other former or current Justices were, for example, Governors of states, or heads of federal agencies.

And that brings me to my second point: you should know by now that we are not falling for this "A Court full of former Supreme Court clerks, OLC heads, professors and Ivy League grads will become more and more insular and more and more arrogant over time" line. Accepting your premise, we still have a lot of other choices. Why not Corrigan, with her extensive experience on the Michigan Supreme Court? Or perhaps a Governor or Senator, if you truly want someone with a political background?

This is the fact that you are trying to spin away: no matter what sort of qualification you name that Miers possesses, we can name dozens of people better qualified by that exact same measure (private practice, executive responsibility, government legal service, and on and on). But there is one exception: Miers possesses the qualification of personal loyalty to the President, and that is what distinguishes her from an otherwise very large field.

And that is cronyism.
10.6.2005 9:08am
jgshapiro (mail):
Mr. Brown:

Saying that Miers is one of the most 'powerful' attorneys in the nation is not the same as saying she is one of the best. Just by virtue of being the white house counsel, she gets that nod. I would question whether any white house counsel would not have made that list at any time in the past 100 years. Yet, no white house counsel has ever been nominated to the Supreme Court before, at least not directly from that office without first getting some more relevant experience.

But even taking your argument at face value, top 50 or 100 is not the same as top 20. Again, there are only nine spots on the court and they open up on average every seven years. So why would you pick the 21st best lawyer (assuming she just missed the cutoff for the top 20, and was not #50 or #100) when you could pick #1-20? (Even #20 would raise the question of why not #1.)

You call that *elitism* if you want, but to me it is just meritocracy. It's not about her school. I did not go to an ivy league school and I don't think that is a prerequisite for nomination. Nor is it about her religion. I don't see why an evangelist protestant is any more scary than a devout catholic like Roberts, whose religion never came up in the hearings or in any serious discussion of his nomination. Nor is it about her sex. No one would dispute the nomination of any number of women judges or Senators or cabinet secretaries or governors. It's really about this question: what separates her from the pack of other lawyers who could have been nominated?

The answer is her friendship with Bush. This is Abe Fortas all over again -- and even he was more qualified than Miers.
10.6.2005 10:09am
Challenge:
"I really think the hearings will be telling -- either Miers will show command of the subject or she will flounder. But aspersions on Miers' general capability or intelligence are unfounded."

I agree. I was disgusted when I read Coulter's new column where she obsesses about SMU's US News ranking. There is a fair share of snobbery found in the criticism of Miers, and that is unfortunate. A lot of the nominees on the "short list" did not graduate from Ivies, and they would have pleased the base just fine. What conservatives most crave is experience, because it provides evidence of one's judicial philosophy and because it provides evidence in one's competence in legal reasoning. We do not just want originalists, we want persuasive originalists.
10.6.2005 10:35am
Medis:
Challenge,

And I really think that is the most damaging part of Brown's defense of Miers. As I noted above, his anti-experience comments about Constitutional "mumbo jumbo" undermine people like Scalia just as much as they undermine people like RBG.
10.6.2005 10:49am
kfm:

Is she one of the top practicing attorneys in the nation?


I understand that this wasn't the thrust of your argument, but please, let's not for even a second argue that the Supreme Court is the composed of the nine best lawyers in the country. That's laughable. Aside from Roberts, I don't think a single member of this court would come anywhere near the top of that list.
10.6.2005 11:51am
jgshapiro (mail):
Aside from Roberts, I don't think a single member of this court would come anywhere near the top of that list.

Yes, but shouldn't they? Why not the best? We should not settle for good or even very good, when we can get excellent or amazing. No one would turn down a Supreme Court appointment, notwithstanding the conformation debacle that awaits them or the (relatively) low pay. So why not pick someone who is at least arguably among the very best, rather than settling for decent?
10.6.2005 1:25pm
Mark F. (mail):
Mr. Brown:

A bad President like Bush is obviously delighted to have you as one of his defenders. You are totally wrong, but you write well and have a certain polish. You remind me of Robert Duvall in "The Godfather."

Ignoring the fact that Miers must be stupid and/or morally corrupt to work for Bush, Mr. Will is correct that if 100 legal experts had been asked to pick their top 100 choices for the Supreme Court, Miers' name would not have been on ~any~ list.
10.6.2005 2:13pm
Adam (mail) (www):
Reg, what accomplishment, publication or decision can you point to which demonstrates that Miers is "exceptionally bright and talented"?

On the elitism thing, this list of alma maters should suffice (via RedState):
Janice Rogers Brown: Cal State, UCLA
Michael Luttig, Washington and Lee, UVA
Alice Batchelder: Ohio Wesleyan, Akron
Priscilla Owen, Baylor, Baylor
Edith Clement, Alabama, Tulane
Emilio Garza, Notre Dame, University of Texas
Maura Corrigan, Marygrove, University of Detroit
Karen Williams, Columbia College, University of South Carolina
Larry Thompson, Michigan State, U. of Michigan
Consuelo Callahan: Stanford, McGeorge School of Law
Diane Sykes, Northwestern, Marquette
10.6.2005 2:15pm
Pablo:
I didn't read all the comments, so this may have been said - But, the point isn't whether she's nice, a good lawyer, plays the lottery, or wears nice sweaters (or even whether she's a lesbian). The point is: Is she one of the nine best legal minds in the world. Without knowing virtually anything at all about her, the answer seems quite clear. You see, we only get nine. There's gotta be someone better than her. How 'bout Janice Rogers Brown? Now there's a nominee that drives lefties crazy!!
10.6.2005 7:11pm
Justin (mail):
Reg: As I read through the comments so far I've noticed that no one has taken serious issue with my first point. George Will crossed the line when he said the President is uninterested and incapable of making sophisticated judgments about the Court and judicial philosophy. The available evidence, over four years, squarely refutes Will's claim.

Me: First of all, that isn't true (see Allison's comment). Second of all, the response should be obvious to someone of your experience. Circuit court appointments are below the political radar. There is no cost to deferring to the OLC types that are also players in the Federalist Society. There is significant reason to believe, both through circumstantial evidence and political logic, that the process for appointing to the High Court was markedly different than deference to the FedSoc OLC folk. Furthermore, not only do we know not enough about Roberts to give Bush any "credit", we know the political situation between the two picks differed remarkably. Thus, there is nothing to learn from this "example".

"Likewise, no one refutes my claim that the President engaged in significant consultations with serious people, contra Will's argument."

Who cares? What is more important is the degree that such consultations affected his decision, something we lack any information about at all. You at multiple times attacked McCain-Feingold, which presumptively means you don't buy the access = impact argument, why are you trying to insert it here?
10.6.2005 11:49pm
Cassandra (www):
Am I the only one to whom Will's argument re: McCain-Feingold seems both dishonest and inconsistent? He says:

1. Only those possessed of talent, education, and long interest can be trusted to interpret the Holy Writ. Fine. So only super-duper legal scholars can sit on the Court and answer thorny Constitutional questions like, "How many angels can you cram into a penumbra?" Mr. Will then piously proceeds to tell us that the President, who is not a legal scholar by any stretch of the imagination, has forfeited the nation's trust because he does not imagine himself in black robes doing what Will himself says cannot and should not be done.

But surely, you say, Bush could get legal advice. Yes. He could ask his disastrously-underqualified White House Counsel to advise him on the Constitutionality of McCain-F, couldn't he? You know - the one who is not qualified to weigh in on this type of matter?

Or he could just circumvent SCOTUS altogether - I mean, why even have a Supreme Court at all? They really are superfluous. So many unsatisfactory decisions lately - and you know that torture bill is coming up. The Executive Branch should be able to convene its own panel of lawyers to decide which laws are constitutional and veto them out of hand on those grounds whenever it wants to. It saves SO much time, you know. Just think of the possibilities...

2. In Hedgepeth, John Roberts (the very model of a proper SC justice, according to Will) opined that the law was flawed, but declined to exercise his judicial power to overturn it. He left that to the legislature - in my opinion, a properly restrained exercise of his Constitutionally-given authority. And in due time the law was fixed by the proper authority. Thus the branches of government functioned as the Founders intended, none overreaching their scope. This wise course of action does not recommend itself to Mr. Will, however, when it comes to the Executive Branch, arguably the most powerful branch of government and the one most in need of self-restraint.

Bush thought McCain-Feingold "might" be flawed, but recognized that it really isn't his job to interpret the Constitution. He therefore deferred to Congress and the Courts (recognizing the limited role of the Executive) and signed it into law. In 2003, SCOTUS upheld the Constitutionality of McC-F, apparently vindicating Bush's restrained application of Executive Power. I should think the Founders (and Will) would approve this lack of "executive activism".

And I would dearly love to hear Mr. Will justify his argument acccording to "conservative principles".

Limited government? Separation of powers? Apparently they only apply when Mr. Will isn't trying to score cheap points.
10.7.2005 7:23am