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Krauthammer: "Withdraw This Nominee":
Charles Krauthammer's Friday column has upped the ante on George Will et. al. by urging the withdrawal of Harriett Miers's nomination to the Supreme Court. An excerpt:
  [N]ominating a constitutional tabula rasa to sit on what is America's constitutional court is an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom. The only advance we've made since then is that Supreme Court dukedoms are not hereditary.
  . . .
  There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.
  Hat tip: Simon Dodd.

Extremist:
I can see more "please withdraw" statements coming, especially in light of what she said about the federalist society back when she was on the Dallas council:

See http://www.realcities.com/mld/krwashington/12836996.htm

"She also said during her sworn testimony that she would not join an organization like the Federalist Society, a group of conservative intellectuals that is a leading proponent of a strict - and some say narrow - interpretation of the Constitution.

'I just feel like it's better not to be involved in organizations that seem to color your view one way or the other for people who are examining you,' she said."

No, you wouldn't want to join organizations that might "color" your views, such as, oh, the Republican Party (or the Democratic Party for that matter), or the American Bar Association, or a church or anything. Churches don't express views now, do they? No, that's just that ultra-conservative federalist society.
10.7.2005 12:36am
Justin Kee (mail):
If nothing else, I must say that it is vastly entertaining watching the Republican party begin to implode.
10.7.2005 12:49am
Nermous (mail):
Oh Puhhlleeeeeze! All you titterpated conservative doom and gloom types need to just chill out. Go home, sit back, watch a baseball game and have a beer. Sleep on it and wait for your senses to return.

Bush has likely picked someone to the right of Clarence Thomas and has gotten the Senate Dems to support her. Ms. Miers is indeed a stealth candidate but she won't turn out like Souter because Bush and Cheney have personally known this woman for a number of years.
10.7.2005 12:53am
Jacob Lister (mail):
Borked by her own party?
10.7.2005 1:05am
Jason Sorens (www):
Oh my; this, if true, could be devastating to her chances:



Her relatively thin paper trail adds greater importance to her personal meetings with senators and to the committee hearing that is expected to begin in about three weeks. While generally well received, Miers has had a few awkward moments, including one during her Wednesday session with Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee.


In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" -- which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade . Miers said she meant Warren Burger, the sources said.



Who refers to a justice by his first name? It appears that she either: a) actually likes Earl Warren but then realized that stating such would be deadly to her cause and quickly backtracked (probability: low), b) actually likes some other justice and got this justice's name confused, in which case she still doesn't look well informed (probability: high), or c) actually likes Warren Burger and was on intimate terms with him (probability: nil). Even if Burger really is whom she meant, right-wingers are likely to be unhappy with the answer.


Source: 10.7.2005 1:13am

Jason Sorens (www):
Sorry, the HTML got messed up there; the linked source is a Wash. Post story.
10.7.2005 1:14am
Jason Sorens (www):
...And the link is in fact wrong. Too bad there is no edit function available for commenters. At any rate, here it is.
10.7.2005 1:25am
Been There, Done That:
It's a good thing she didn't say "William."
10.7.2005 1:26am
Challenge:
"Borked by her own party?"

No, mired (or should I say miered) in her own mediocrity. The polar opposite of Bork and being "Borked."
10.7.2005 2:07am
Here We Go:
The article recounting her disdain for the Federalist Society also details her advocacy for redistricting according to race (compelling government interest?)

It looks like SOC's sunset for affirmative action might make it the full 25 years after all.

Can somebody do something about this fiasco? I mean, come on.
10.7.2005 2:07am
Borgia (mail):
Where oh where is the Democrat Laocoon warning his complacent brethren about the dangers of trusting Reeps bearing gifts?
10.7.2005 2:14am
Lab:
Career professional women don't tend to be dogmatic, much less fanatic.
10.7.2005 2:32am
Bill Dyer (mail) (www):
Krauthammer doesn't bother to answer, nor pause even to seriously consider, his sweeping rhetorical question. But obviously, of the "1,084,504 lawyers in America," not many have been —

  • Counsel to the President and to the governor of one of the most populous states, along with other high-level White House staff positions;


  • president of a large state's bar association and one of its most respected and active local bar associations, as well as having led valient efforts to return a dysfunctional American Bar Association back to its roots of apolitical service to the profession and public;


  • long-time managing partner of a successful 400+ lawyer firm;


  • an accomplished courtroom lawyer praised with words like "very good, cool, deliberate, poised, effective" by the judges before whom she's appeared, with experience at both the trial and appellate level in both state and federal courts;


  • law clerk to a respected federal district judge, further deepening her insights into federal trial practice (which no current member of the Court can claim);


  • an articles editor on the top law journal at her law school, noted for its comprehensive coverage of Texas law;


  • a "very thoughtful, very good student" who made "top marks" and could be counted on to give "solid, intelligent answer[s]" to "critical question[s]," according to a professor of hers, nationally recognized as an expert in business law, who 35 years after teaching her pronounced himself filled with "great satisfaction" to see her nominated to the Court.


Oh — and based on years of close dealings with the President, he's more sure, based on personal knowledge, that she won't turn into "another Souter" than anyone else he might have nominated, thus allowing him to keep his campaign promises.

But other than that, yeah, her name coulda just been draawn out of a hat, 'cause pretty much most of those 1,084,504 lawyers have those same qualifications. (Not.)
10.7.2005 4:50am
Paul doson (mail) (www):
I think something should be done about this.... I'm looking forward to do something for sure.
10.7.2005 4:55am
Medis:
Bill Dyer,

You could be making one of two points. One point you could be making is that each of those things counts as a qualification. But the problem is that with the exception of the dubious distinction of being the President's personal lawyer, there are hundreds or thousands of lawyers that share any one of those distinctions.

Alternatively, you could be admitting that each of those qualifications on its own does not distinguish her, but that there is no one else who shares exactly that combination of attributes, and hence she is uniquely qualified. I like to think of this as the "snowflake argument"--human beings, like snowflakes, are all unique, and hence it is trivially true that there is no one in the world exactly like Miers. But it doesn't escape the underlying problem, because for any of the hundreds or thousands of other lawyers with individual qualifications as distinguished as Miers, we could make the exact same argument (that no one shared their unique combination of attributes). Hence, the fact that Miers has a unique combination of attributes still does not make her more qualified overall than hundreds or thousands of other possible nominees.
10.7.2005 7:43am
alkali (mail) (www):
One point you could be making is that each of those things counts as a qualification. But the problem is that with the exception of the dubious distinction of being the President's personal lawyer, there are hundreds or thousands of lawyers that share any one of those distinctions.

I don't think it's unreasonable to believe that there are hundreds or thousands of lawyers that are qualified to sit on the Supreme Court. It's not that demanding a job.

That's not to say that Miers would have been my choice, but the idea that you can identify and rank the ten best "legal reasoners" in the country just like you could rank NFL quarterbacks is entirely unfounded, and possibly pernicious.
10.7.2005 9:32am
Observer (mail):
I concur with Krauthamer. Miers's qualifications are similar in many respects to Sandra Day O'Connor's - if you recall, O'Connor was a state senator, then a judge on an intermediate state court, not even on the state's supreme court. She knew very little about federal constitutional law when appointed to the Court and spent the first five or so years of her tenure trying to get up the learning curve. In the end, she never accomplished that, and ended up voting on cases like a legislator, instead of analyzing them like a judge, and writing incomprehensible opinions.

When Reagan appointed O'Connor there were few women accomplished in the law and even fewer conservative women lawyers. Today there are many. Why pick one with thin qualifications when, if you wanted a woman, there are so many stellar candidates around? "Trust me" just doesn't cut it as a reason.

This is a self-inflicted wound of the first order. I am dismayed, and I count myself as a loyal and strong supporter of President Bush. But he should withdraw this nomination and nominate Judge McConnell or Judge Jones or Judge Brown or Judge Alioto or some other first rate constitutional thinker. What school they went to is not particularly important. What matters is the quality of their thinking and writing about constitutional issues. If the Democrats filibuster, then the Republican Senators should rule the filibuster out of order and confirm the nomination by a majority vote.
10.7.2005 9:49am
paul (mail):
When I consider Mier's resume as outlined by the commenter above, I would infer from it that Meir's is a highly capable and intelligent lawyer who is well respected by the best attorneys in Texas and who likely has exceptional interpersonal and leadership skills. Does this make her the "best" qualified nominee to the Supreme Court. Probably not, but certainly her qualification are indicative of person who is qualified to be a Supreme Court justice by any reasonable historical standard. Moreover, whenever I consider some of the current members of the Supreme Court who have "better" resumes, I can't say that I have been impressed by their stewardship of the Constitution.
I think it is nonsense that one must have spent decades studying Constitutional law to have a acceptable grasp of the field. Although it is nice to have the wealth of knowledge possessed by Chief Justice Roberts, I think that it is much more important to have a proper understanding of the role of the judiciary and a proper understanding of how the Constitution should be interpreted. Does Mier's have this? It depends on what your views on these topic are. Does Mier's share President Bush's views on these topics? I would bet dollars for doughnuts that she does and that she has President Bush's complete confidence.
10.7.2005 10:19am
Observer (mail):
Alkali - Do you honestly believe that being a Justice on the Court is not that demanding a job?

I suppose it doesn't have to be hard. You can, as Justice Thurgood Marshall did, rely on your brilliant law clerks to do all the heavy lifting. You could, I suppose, just read the bench memo, skip over the intricate parts, vote your gut, tell your clerks to write something up.

But that's not what we pay them for. The best judges write their own opinions. Let me repeat that. The best judges write their own opinions. Judging, if done right, is one of the few jobs in the world that cannot be delegated. The judge can have clerks do research (i.e., find relevant cases) for him, but the judge still has to read the briefs, read the cases, and do his own analysis. Then he has to write it down in a clear and persuasive way.

I addition, the cases on the Court's docket are extraordinarily hard. Often they involve complicated and intricate statutes (have you ever read a tax case or a case involving the interpretation of ERISA?) For the most part they get to the Court because there is more than one way reasonably to interpret the statute or constitutional provision. So sheer brainpower is an essential asset for a Justice. History does not look kindly on justices who don't have it.

Are there hundreds or thousands of lawyers in the US who could do the job? I don't think so. Most lawyers in private practice, who don't think about constitutional issues on a regular basis, would make lousy justices no matter how brilliant they are. In addition to intellectual firepower, I think some substantial experience in public life wrestling with important legal and policy issues is essential (with the exception of the occasional con. law professor like Frankfurter). I can't think of any Justices whom we would regard as successful who didn't have that.
10.7.2005 10:28am
Ciarand Denlane (mail) (www):
1. Mr. Dyer's comment was, I took it, taking issue with Mr. Krauthammer's column on a point that is not rehabilitated by the comments responding to Dyer. Krauthammer's column is fairly read as saying that Ms. Miers' record is no more distinguished than the average attorney among the million or so in the United States. That contention strikes me as over-reaching, for essentially the reasons Mr. Dyer gives. Of course, from the proposition that Ms. Meirs' may be in the top 5% of lawyers in the United States, it does not follow that she is in the top 100 or top 10. If top 100 or top 10 is one's standard, then there is substantial doubt whether Miers meets it, but whether the standard is top 100 or top 10 and whether Miers' meets such standards are different (and ultimately more pertinent) issues than Krauthammer's quick aside that she's not distinguishable from among a million other attorneys.
2. Wasn't there a meme something like, oh, 5 minutes ago in Internet time, bemoaning the lack of trial and business litigation experience among any of the justices? It's not just the Supreme Constitutional Court of the United States. Perhaps, since constitutional mistakes of the Court are the least remediable by other institutions, we really should weigh a nominee's familiarity with constitutional law much more heavily than her familiarity with other legal issues, but I don't think that is as self-evident as the comments assume, particularly if a nominee can bring to the Court a first-hand familiarity with trial practice that other Justices lack.
10.7.2005 11:11am
alkali (mail) (www):
Alkali - Do you honestly believe that being a Justice on the Court is not that demanding a job?

Yes. Being general counsel of Citigroup is demanding. Being head of the FBI is demanding. Being a Supreme Court Justice is an important responsibility, but it is not incredibly demanding.

The best judges write their own opinions. Judging, if done right, is one of the few jobs in the world that cannot be delegated.

Actually, it can. You tell your clerk what you want the opinion to say, and you edit (or reject) his or her work product. Not that hard. Clearly it's possible to go off the deep end with delegation but lots of talented judges assign first drafts to clerks. Some very admirable judges write their own first drafts, but no one talks about the judges who really ought to be relying on their clerks a bit more.

In addition, the cases on the Court's docket are extraordinarily hard. Often they involve complicated and intricate statutes (have you ever read a tax case or a case involving the interpretation of ERISA?)

Yes, those are hard cases, and tax lawyers and ERISA lawyers are frequently heard to complain that the Supreme Court screws them up all the time. (I actually find the code cases pretty straightforward, but I think that's just me.) In any event, there are lots of lawyers at big firms capable of dealing with statutes of that level of complexity.

To prove my point, here is a short list of who might be qualified to serve as a Supreme Court Justice:

-- Many (and probably most) judges on the federal courts of appeals
-- Many federal district court judges
-- Many state supreme court justices
-- Some state appellate court justices
-- Some state court trial judges (I'm thinking in particular of chief judges of the trial court in major urban areas)
-- Some Senators and Representatives
-- Many regular practitioners before the Supreme Court
-- A bunch of law professors and law school deans
-- A bunch of people who have served in the US AG or US Solicitor General's office
-- Some state attorney generals
-- A bunch of present and former state governors
-- Some present and former cabinet secretaries
-- Some present and former heads of big federal agencies (I'm thinking SEC, FBI, IRS)
-- Every major city has about 5-10 "big gun" litigators; New York might have 15-20; probably many of them could do it
-- Some GCs of big corporations and nonprofits
-- Some heads of major public interest legal groups

Based on that, I think one could come up with a list of 500 plausible Supreme Court candidates without too much difficulty.
10.7.2005 12:01pm
Harpo:
A million plus lawyers in America ??!


Holly cow, no wonder there is such an obsession about alma mater rankings in the legal field.
10.7.2005 12:02pm
Gordon (mail):
Surprise, surprise, another inside the beltway conservative snob columnist has a pissy fit over Harriet Miers.
10.7.2005 12:37pm
Observer (mail):
Alkali,

You make some good points - probably some fraction of the judges and lawyers you describe could be Justices - but I have to disagree with you about delegation. I clerked for a Justice and am currently a GC so I think I have some relevant experience.

It's true that many judges do rely on their law clerks to draft opinions. Henry Friendly did not. I doubt that Judge Posner does. There is a lot lost when judges rely on their clerks rather than taking pen to hand themselves. Judge Harry Edwards has written about the problems with turning a judgeship into a little law office. For one thing, clerk-written opinions all read like bastardized law review articles. They are homogenized, pasteurized, bland and tasteless, too long and with too many footnotes on tangential subjects. That's not what we're paying judges or justices for. If a justice isn't capable of writing his own opinions, of articulating his reasons for judgment in a clear and persuasive manner, then he shouldn't be a justice. So as I said, it may be possible to serve on the Court without doing the heavy lifting, but if you are going to do it the right way, it's an extraordinarily hard job, much harder than counseling a big corporation or managing a law department.

So who would you prefer on the Court? A judge like Friendly or Posner, or a Marshall or another O'Conner?
10.7.2005 1:10pm
alkali (mail) (www):
So who would you prefer on the Court? A judge like Friendly or Posner, or a Marshall or another O'Connor?

I hear you on the virtue of judges writing their own opinions, but I think you overstate the significance of that practice. There are many judges who write good sharp opinions and who rely significantly on clerks, including Justices of the current Court. (I wonder what CJ Roberts' practice is in that respect; maybe someone who has insight can say so here.)
10.7.2005 1:32pm
David M. Nieporent (www):
Mr. Dyer's comment was, I took it, taking issue with Mr. Krauthammer's column on a point that is not rehabilitated by the comments responding to Dyer. Krauthammer's column is fairly read as saying that Ms. Miers' record is no more distinguished than the average attorney among the million or so in the United States. That contention strikes me as over-reaching, for essentially the reasons Mr. Dyer gives.

Krauthammer's column is hyperbole, but as I have said in the past, I do not think Mr. Dyer's position holds. What if we hypothetically added that Miers was an Olympic-class athlete? It would make her even more distinguished than the average attorney... but not in ways that matter.

The things Mr. Dyer cites are, for the most part, more relevant to the job she is up for than her athletic skills are -- but not much more so. They're primarily political/administrative matters.

Perhaps, since constitutional mistakes of the Court are the least remediable by other institutions, we really should weigh a nominee's familiarity with constitutional law much more heavily than her familiarity with other legal issues, but I don't think that is as self-evident as the comments assume, particularly if a nominee can bring to the Court a first-hand familiarity with trial practice that other Justices lack.

I do think we should weight the former more heavily, for precisely the reason you state. But more importantly, with Miers the issue isn't that her understanding of the world of trial law is superior to her insight into constitutional matters, but that as far as we know, she has zero familiarity with the Constitution. Now, she probably has some, since she's an intelligent attorney -- but we have no way to know it. Bush is simply saying, "Trust me."
10.7.2005 1:42pm
Shelby (mail):
Alkali,

You put together an interesting and persuasive list that underscores Miers' lack of preparation for this position. She is not ANY of the things you listed, let alone more than one. Possibly some time ago she was one of Dallas's "big gun" litigators, though so far it looks more like she was a good administrator at a sizeable firm, rather than its star litigator.

I have no direct knowledge about Roberts, but I've read things by several people who claim he writes his own opinions. Certainly the parts of them that got bandied about in the press had a consistent tone, and were similar to what he drafted in the White House. So unless shown otherwise, I think he writes them, and does so very well. Miers' writing, what we've seen of it so far, is pedestrian at best.
10.7.2005 2:46pm
alkali (mail) (www):
You put together an interesting and persuasive list that underscores Miers' lack of preparation for this position. She is not ANY of the things you listed, let alone more than one.

I didn't mean to suggest that my list was exhaustive. Mostly I'm interested in rebutting the idea that there are just five or ten people who, by virtue of having spent a lifetime in monastic contemplation of constitutional law, could appropriately be nominated to the Supreme Court.

I don't have a firm view on whether Miers is "qualified" even under my broad view of what it means to be qualified for the S.Ct. She's had a diversity of experience that is unusual: in particular, I think it's interesting that she's been in private practice as a trial lawyer, on the city council of a major city, the head of a state agency, and inside the White House. At the same time, there doesn't seem to be any "knockout" credential there.
10.7.2005 3:22pm
Shelby (mail):
Alkali,

I agree that there are more than ten people pretty well qualified to sit on the Supreme Court. There are probably at least a thousand. I just don't see anything about Miers' background or writing to indicate she's even in the top ten thousand. The only thing really special about her is, Bush trusts her. If you're the kind of person who's persuaded by that, great. If you're not, the nomination has to be pretty disturbing.
10.7.2005 5:05pm
Eric (mail):
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

-Alexander Hamilton

Federalist Papers #76
10.7.2005 9:37pm