pageok
pageok
pageok
Ron Cass Defends Miers Nomination:
Ron Cass, the former dean of the Boston University School of Law, has published a defense of the Miers pick, although he concedes (as many of her defenders do) that "Ms. Miers wasn't my pick, and wouldn't have been if I had been choosing, because she doesn't bring to the Court demonstrated excellence in the skill set that I value most for that position." So given his opinion of its merits, what then is his defense of the nomination?

You really should read the whole piece (entitled, Stop Whining -- Right Choices and the Courts) which includes responses to arguments I made on Tuesday in my Wall Street Journal op-ed, but here is how his defense ends:
Conservative critics should be especially ashamed. Conservatives have been insisting that judges should respect the Constitution and laws, secure that this is enough to ask. Conservatives also have been aware that the Constitution grants substantial discretion to the President in making appointments. It is his call. We have elections to determine who gets to make picks such as this, and President Bush -- to the delight of conservatives across the nation -- won. Now he has picked someone he knows well and believes shares his vision of modest and law-bound judging, someone who helped steer the President to select other judges in that mold. Judges like John Roberts.

It's time for those who have made common cause with the President to give him exactly the presumption that the Constitution does and political alliance should -- that he has the right to make appointments of anyone who has the competence and temperament for the job. The presumption is that he has done this.

Now it's time to stop whining before the next turn of the political wheel gives conservatives something real to whine about.

Related Posts (on one page):

  1. The Miers Standard:
  2. More Defenses of Miers:
  3. Ron Cass Defends Miers Nomination:
SimonD (www):
I'm getting pretty sick of the sycophantic defenders of this indefensible choice telling people to quit whining, and implying that the only way to save the GOP is to shut their mouths, put their heads down, and let the White House send the message that any person who has ever been a member of the Federalist Society, or who has expressed a conservative opinion in writing, need not apply for a Judgeship. It is the people who are suporting this nomination who have done the damage, and those of us who are opposed to it who are trying to staunch the bleeding and pick up the entrails.
10.8.2005 2:27am
PD Shaw (mail):
Is Cass's standard -- the President wins -- one which conservatives should gladly embrace when a Democrat occupies the White House?
10.8.2005 2:41am
Flatlander100 (mail):
Well, not to get too nit-picky about all this, the president does not have, as Prof. Cass suggests, "the right to make appointments" to the Court. What he does have, under Article II, Section 2, is the power to "nominate" persons for appointment to the Court. Appoint can be made only "with the Advice and Consent of the Senate." To suggest, then, the the president "has the right to make appointments of anyone who has the competence and temperament for the job" and that the Senate [and we] must "presume" that he has done this whenever he nominates a candidate is to suggest that the Senate's role in the appointment process is a charade, a thinly disguised application of the notion that the King can do no wrong. Which would be, I think, a strained and odd reading of a republican constitution.
10.8.2005 3:08am
The General:
Consrvatives have been burned again and again by so-called stealth nominees, which is why Bush made a specific promise to nominate SCOTUS justices of the Scalia/Thomas ilk to get elected twice. He didn't cite those two by accident. That promise is a large reason he got elected. He has utterly failed to live up to that promise with the Miers pick.

And yes, a president ought to be given deference with these selections, but that deference only go so far when the pick is a crony with a weak (for the position) resume, and there certainly is not a presumption. Moreover, Bush chose to limit his own discretion when he made those campaign promises about who he would nominate.

Lastly, principled conservative opposition to this Miers pick is not for fear that she won't produce the "conservative" results we like. We know that sometimes the Constitution says that the other side should win and sometimes it says that our side should win, and sometimes it is silent so the people get to decide for themselves. It is the GOP supporters of Miers who have been assuaged by baseless promises of the correct results. The opposition doesn't care about that. We want justices to interpret the constitution without the results in mind.

To be clear, opposition to her stems from her insufficient credentials and a lack of a clearly defined conservative judicial philosophy, which getting back to my first point, is what Bush promised us to get elected. If he never made those promises that would be a different story (and Gore or Kerry might be making these picks). But he did make those promises and this pick does not live up to that promise and if Ron Cass or anyone doesn't get that, then they should shut the hell up until they can figure it out.
10.8.2005 3:12am
Perseus (mail):
everyone wants to know how a Justice Miers will decide important issues.
That complaint should get short shrift. The fights over judicial nominees have become so bitter because people have lost sight of the fact that we don't want judges to come to the bench with pre-commitments to particular outcomes.


There's a big difference between how or the process by which a justice goes about deciding a case (i.e. judicial philosophy) and the outcome of that process. The conservative "intelligentsia" is interested in knowing Miers's reasoning process/judicial philosophy, not whether she's pre-committed to particular outcomes--even if the former provides some guidance about the latter. Indeed, if one of the merits of Miers is that she will more likely understand the practical implications of the decisions of the Court, isn't that an insight into her likely constitutional reasoning process? But why should we stop there in our inquiries and our expectations about a potential justice?



Conservatives also have been aware that the Constitution grants substantial discretion to the President in making appointments. It is his call...[H]e has the right to make appointments of anyone who has the competence and temperament for the job. The presumption is that he has done this.


Yes, it is the president's call, but I don't see why we should presume that the president's call is a good call. That's why the senate must confirm the nomination. The president must make the case that he in fact fulfilled his Constitutional duty to appoint someone with the "fairest pretensions" to the qualities necessary to be a justice on the Supreme Court. Ron Cass apparently doesn't think that Miers has the fairest pretensions to those qualities and neither do many conservatives.
10.8.2005 3:21am
Scott Scheule (mail) (www):
Nonsense. Sure, the President has the right to do it--it doesn't follow that the choice was a wise one, nor that we should be happy or deferential.
10.8.2005 3:54am
A Guest Who Enjoys This Site:
What Cass and the other defenders of or pundits for Miers miss in their analysis is that "Trust Me" is not a sufficient argument for an appointment of this significance. Even if we accept that THEY have little doubt as to Miers' philosophy, predilictions, credentials, and abilities, WE, the general public, have been given NOTHING to hang our hats on. Expecting us to go with "Trust Me" and whatever a candidate might say in the public hearings, if not overly naive, is simply a bit too autocratic/elitist/monarchical/pick your adjective. Frankly, I don't think it takes more than a modicum of healthy cynicism to think that a candidate might say whatever they think will "sell" in a public hearing; even to the point of obfuscating or misrepresentating their actual philosophy. That is why people perceive an historical pattern as more efficacious than "Trust me" in making their own analysis.

Let's see...

Trust me - I am not a crook.
Trust me - I did not have sex with that woman.
Trust me - Read my lips, I will not raise taxes.

If Cass and others want to be reliant on "Trust me" as the penultimate argument, then "TRUST ME," we need more.
10.8.2005 4:04am
cpugrud:
Perhaps our overloading of the term "conservative" is coming into play? A true "compasionate conservative", as Bush proclaims to be, may be much more in line with the liberal nanny-state, i.e. "we will take care of you", than the "federalist conservative" may be willing to admit? A federalist, on the basis of state's rights, would be be adimately opposed to the Raich decision, whereas a "compasionate consevative" may view the Raich decision on a fundamental basis of preventing self-harm.

Let's not kill ourselves distinguishing federalism from fundamentalism.
10.8.2005 4:06am
cpugrud:
What are the odds that a minority of "republican" senators and a majority of "democratic" senators could approve the nomination of Miers on the basis of "just deserts"?
10.8.2005 4:11am
Richard Frei (mail):
As Cass correctly points out, the Constitution gives the President the sole power of appointment. Granted his selections must pass muster with the Senate, but it is his right to choose whomever he pleases. The hue and cry from the conservative side of the aisle over the Miers pick is just astounding. Bush's track record of personally selecting individuals both for his Administration and the Judiciary is remarkably good. Cheney, Rumsfield, Rice, Roberts and the host of appellate judges are testiment to his judgement of character. Granted there have been fumbles, especially when he has deferred to the judgement and recommendations of others (remember Guillani's recommendation of HSD director?). I for one do not believe the President has nominated someone unqualified for the position of Supreme Court Justice, nor do I think he has nominated someone in the mold of Kennedy or Souter. In fact, I think he has nominated the perfect "Trojan Horse" candidate. Someone capable of getting past the Democrats in the Senate with little fuss, to their peril. Once she dons the black robes I think it will quickly become apparent that Bush has placed someone on the court far more conservative than even Janice Rogers Brown. It has been my experience that those of the "Born Again" persuasion at very Pro-Life, very religious, and very conservative. This of course is pure speculation, but I for one believe that the poker player Bush has just doubled down on the Democrats and is holding all the cards.
10.8.2005 4:40am
jgshapiro (mail):
Conservatives have been burned again and again by so-called stealth nominees, which is why Bush made a specific promise to nominate SCOTUS justices of the Scalia/Thomas ilk to get elected twice. He didn't cite those two by accident.

Well, maybe Scalia, but not Thomas. No one had any idea Thomas would be an originalist (let alone to the right of Scalia) when he was nominated. Many thought he would be a moderate in the Kennedy (or at least Rehnquist) mold. Remember, he got nominated in part because of his scant record as a judge, his lack of record (and lack of ever thinking about) abortion, etc. Other than Scalia, no forthright originalist has ever been confirmed to the Supreme Court (see, e.g., Bork, D. Ginsburg) and many have had a hard time getting confirmed to the circuit courts (see, e.g., Estrada, Brown, etc.)

The conservative "intelligentsia" is interested in knowing Miers's reasoning process/judicial philosophy, not whether she's pre-committed to particular outcomes--even if the former provides some guidance about the latter.

That may be true on this site, but not that many other places. Really, what most conservatives -- Dobson, Sekulow, etc. want is someone who is anti-Roe, anti-Lawrence, pro-free exercise clause, anti-establishment lause, pro-takings clause, pro-second-amendment-as-an individual-right, etc. Given a choice between a self-described originalist who came down on the 'wrong' side of every one of these questions and a results-conservative who came down on the 'right' side of these questions, which nominee do you think most conservatives would pick?

Most conservatives want the process conservative only because they assume that makes the nominee more reliable as to conservative results in the long term, not out of any bona fide belief that originalism is the only legitimate method of interpeting the law. Or to put it another way, the process conservatives are mostly just results conservatives who think they can better predict results based on process rather than outlook.
10.8.2005 4:54am
Walt H:
Is Cass's standard -- the President wins -- one which conservatives should gladly embrace when a Democrat occupies the White House?

Remind me again, what was the vote for Ruth Bader Ginsburg?
10.8.2005 5:44am
Mahan Atma (mail):
"It's time for those who have made common cause with the President to give him exactly the presumption that the Constitution does and political alliance should..."

Where is this "presumption" stated in the Constitution? Does "advice and consent" really equal "presumption", according to a strict interpretation? The last time I checked, the Constitution gives the President the power to nominate judges, not to have them confirmed.

But I'm curious to know conservatives' answer to this question, for those of you who oppose Miers: Her supporters say if she were were to rule contrary to how the president would want her to, "it would be a deep personal betrayal and would be perceived as such by both by him and by her."

Is the problem that you're afraid this is true? Or that it isn't?
10.8.2005 6:08am
Mahan Atma (mail):
BTW, this is off topic but:

Why no VC posts on the withdrawal of Flanigan for Dpty AG?

This is pretty big news, isn't it? It was big enough to post about when he was nominated anyway...
10.8.2005 6:13am
Medis:
When someone is reduced to arguing about burdens of proof (eg, "presumptions"), you know they have no case.
10.8.2005 6:54am
A Guest Who Enjoys This Site:
When was the last time any of us applied for a job and got away with contending that it was the potential employer who had the burden to prove we were NOT entitled to the position? Of course, maybe it's just that my subtle charms are such that I'm the only one who has ever experienced the concept that I had the burden, as the applicant, to prove that I had the necessary skills, education, experience, temperment, and mental capacity to be CONSIDERED for the job?

Nah. Even I can't be the ONLY one.
10.8.2005 7:38am
Ted Frank (www):
Cass's arguments about deference miss the point entirely. No one's claiming that Bush doesn't have the right to nominate Miers. The claim is that Bush made a huge mistake in nominating Miers.

In terms of the originalist argument, I think Federalist No. 76 is fairly persuasive that this is precisely the kind of nomination the president should be sufficiently embarrassed to make that the Senate should have no regrets in rejecting the nomination even beyond the adverse impact of conceding that the Senate has the right to Bork nominees. Cass makes no mention of Federalist No. 76, and makes no rebuttal of the critical issue of the second-order effects of stealth nominations, so I don't view that point as rebutted.

Cass is absolutely correct that the current makeup of the court risks misdeciding its International Salt precedent. But that's an argument for nominating Frank Easterbrook, not Harriet Miers.
10.8.2005 8:42am
Alan Meese (mail):
Under Cass's "Logic," folks should not "whine" if the President appointed, say, Janet Reno or Web Hubbell! After all, it's the President' choice!

Also, according to the Constitution that Cass asks us to respect, Presidents can always withdraw a nomination if they wish. Indeed, isn't there law stating that the President can refuse to "appoint" even if the Senate Consents? Cass is focusing on a particular snapshot of the process (nomination), ignoring the fact that a President who realizes he has made a mistake has the power to reverse course. Perhaps Cass should respect THAT part of the Constitution and stop whining!

As for antitrust cases, where are Ms. Miers' antitrust opinions and/or articles and/or speeches? I'd love to read them. Has she written widely on International Salt or other tying questions? Is she up on Transaction Cost Economics, the work of Williamson and Coase, etc.? I'll bet Easterbrook (argued and won Jefferson Parish!), Luttig, and McConnell, Owen, Alito, etc. etc. can easily handle the question presented in Independent Ink!
10.8.2005 9:28am
Dr. Mabuse (mail):
What was that line from Juvenal quoted below? "I wish it. I command it. Let my will take the place of a reason."
10.8.2005 9:46am
Lochner Monster:
Cass' argument--and he made it first on Tuesday, I believe, in NRO--isn't an attempt to win the debate on the merits. It's a shot at preventing the debate from even happening. In concert with Sen. Graham's "Shut up," this tactic is at least cousin to the 'Move On' cry that was born during Clinton's impeachment.

For three years hippies have been claiming that the GOP has marginalized dissent re: the War by using patriotism as a prophylactic. As a supporter of the War I dismissed this. Now that I'm on the short end of the Bush debate method, I'm starting to wonder if they don't have some kind of point.
10.8.2005 10:26am
Glenn:
I see a lot of people have missed Cass' point - it is not to stifle debate, but to stifle this silly emotional bloodletting that is going on among people who style themselves conservative. This site is certainly not nearly as bad as some, but there is still plenty of it going around.

I agree with critics of Lindsay Graham - he hardly has the standing as one of the "Gang of 14" to be telling anyone to shut up. On the other hand, having a little faith in the president isn't a bad idea until the hearings, where we can judge for ourselves if he has taken leave of his senses. If she shows up as incompetent, we can all call our senators and ask them to oppose the nomination. I know I will.

I don't have a problem with anyone who can offer a principled argument opposing Miers, but so far very few have. I cannot see the "crony" argument as a principled one, because it assumes facts not in evidence (i.e. bad faith on the part of the president). The qualifications argument is principled only in the sense that it prefers one set of acceptable qualifications over what I consider to be another set of acceptable qualifications.

In sum, it seems like Cass has this mostly right. I'm a little leary of the "stop whining" comments, as that sounds a little too much like "shut up" for my comfort, but in the context of his article I am convinced it is not meant to stifle debate. To the contrary, I think it was his intention to shame people into shifting the terms of the debate from unreasoned emotion to sound argumentation.
10.8.2005 11:10am
Medis:
Glenn,

I see that on the crony argument, you are also arguing burden of proof. I repeat my comment above: that is a good indication that you have no actual case.
10.8.2005 11:13am
Cornellian (mail):
The cronyism argument is that Bush is appointing someone with mediocre qualifications because of that person's close personal relationship with Bush. That appears to be obviously true, no one else would have thought of nominating her, and doesn't suggest or require any bad faith on Bush's part. Bad judgment certainly, but not bad faith.

As Professor Bainbridge put it, the Supreme Court is the big leagues and you don't go there with your "B" team, you go there with your "A+" team. Are you really suggesting that anyone meeting the bare minimum qualifications is sufficient?

I don't have a problem with anyone who can offer a principled argument opposing Miers, but so far very few have. I cannot see the "crony" argument as a principled one, because it assumes facts not in evidence (i.e. bad faith on the part of the president). The qualifications argument is principled only in the sense that it prefers one set of acceptable qualifications over what I consider to be another set of acceptable qualifications.
10.8.2005 11:30am
Eliza (mail):
Cheney, Rumsfield, Rice, Roberts and the host of appellate judges are testiment to his judgement of character. Granted there have been fumbles...

Indeed there have. Bush may be a peerless judge of character but he has all too often proved a catastrophic judge of competence. Do you recall Jay Garner?

It has been my experience that those of the "Born Again" persuasion at very Pro-Life, very religious, and very conservative.

Brother Jimmah springs to mind.

I think he has nominated the perfect "Trojan Horse" candidate.

The "Caligula's Horse" candidate, more like. Or, if this nomination is not withdrawn, the "Catherine's Horse" candidate.
10.8.2005 11:30am
Glenn:
Medis:

I see that on the crony argument, you are also arguing burden of proof. I repeat my comment above: that is a good indication that you have no actual case.

Since others are charging cronyism, the burden of proof is clearly on them in logical argumentation. Suggesting the reverse is simply argumentum ad ignorantiam.
10.8.2005 11:36am
Glenn:
Cornellian:

The cronyism argument is that Bush is appointing someone with mediocre qualifications because of that person's close personal relationship with Bush. That appears to be obviously true, no one else would have thought of nominating her, and doesn't suggest or require any bad faith on Bush's part. Bad judgment certainly, but not bad faith.

Again, that argument depends on facts not in evidence. Miers qualifications for the court may not suit some, but they most certainly don't qualify as "mediocre". Also, those charging "cronyism" are not in possession of sufficient information about the nominee to accurately claim that the president is guilty of bad judgment. He may be, but that has yet to be tested and proven. Ultimately, all these things qualify as subjective judgments and not facts.

The one objective fact that supports the "cronyism" claim is that Bush has a close relationship with Miers. By itself, that seems insufficient to support the "cronyism" argument.
10.8.2005 11:46am
Medis:
Glenn,

There is more than enough evidence for a prima facie case of cronyism. She has an extremely close relationship with Bush and has long served as his personal lawyer. You say her qualifications aren't "mediocre", but by any objective standard she is far less qualified than any Justice since the early 20th (and I think late 19th) Century.

So you fall back on this principle: "Since others are charging cronyism, the burden of proof is clearly on them in logical argumentation." You then argue that we can't KNOW the President's private thoughts and we can't PROVE that Miers is "unqualified" because there is an irreducible component of subjectivity in qualifications.


Well, there isn't anything clearly true about your claimed burden of proof. The "charge" of cronyism is not a criminal charge, and in light of the fact that she IS a "crony" of the President, "logic" does not somehow dictate that there is a burden of proving she is UNqualified. Instead, "logic" suggests that if someone wants to nominate a crony to an important position, then to rebut the charge of cronyism, they better be prepared to show why this person's qualifications alone were sufficient to make them the right choice.

And that is what no one can really do. We all know that there is no way Miers would have been picked if she hadn't been the President's crony. And thus it actually doesn't matter whether she is completely unqualified, marginally unqualified, or even marginally qualified by some "as long as she isn't the worst nominee ever she is OK" standard. Once we know that her qualifications alone would not have been sufficient to make her the nominee, and once we know that she is a crony of the President, we have all the evidence we need for a successful "charge" of cronyism.
10.8.2005 12:05pm
RTG:
I'm truly sick of the argument that the Senate owes some particular level of deference to the President's nominations. It always gets propped up by someone defending a nomination with no logical backing, and is promptly knocked down, only to be brought up again the next day with the same lack of logic. I'm not going to make the argument again because clearly if you are the type of person that is willing to make up a particular level of deference that one political branch owes to another you are not the type of person who is going to be persuaded by sound logic to the contrary.

Not to mention the raw hypocrisy, if John Kerry nominated an equivalent democratic hack (and I certainly don't wish to imply that he wouldn't) all these presidential yes-people would be (rightly, but hypocritically) singing a different tune.
10.8.2005 12:11pm
JayJ:
It's interesting Glenn that you raise the fallacy of argumentum ad ignorantium, since (as the page you linked to noted) the burden of proof is generally up to the proposing team in a debate, which can imply that it is up to Bush (and thus Miers) to prove to the Senate (and to the American people) that she is qualified. Yet the elastic concept of "deference" might imply that it is the Senate who has the burden of proof to show Miers is unqualified.

Perhaps a fundamental question would be this: Does the fact that the President nominated Miers by definition make Miers qualified to serve on the Supreme Court? It would seem that, at first blush, the answer to that question would be no. Yet regardless of whether the burden of proof is on Bush and Miers to prove she is qualified, or is on the Senate to prove that Miers is not qualified, we will most likely need to wait until the Senate confirmation hearings to get some solid, current evidence.
10.8.2005 12:18pm
Medis:
RTG,

To the credit of many conservative commentators, I think they see that exact problem (namely, they want to reserve the right to object if a future liberal President wants to pack the Court with liberal cronies). The same reasoning applies to the arguments based on her religion: they want to reserve the right to object to arguments AGAINST people based on their religion.
10.8.2005 12:20pm
Justin (mail):
"Is Cass's standard -- the President wins -- one which conservatives should gladly embrace when a Democrat occupies the White House?

Remind me again, what was the vote for Ruth Bader Ginsburg?"

Dude, on Redstate this argument works because they ban you if you point out the obvious error. Your point proves the opposite of what you're claiming.

Clinton did not set out to nominate Ginsburg for the court. He set out to nominate Bruce Babbit, who, by all means, would have had the qualifications equivalent to Roberts. Instead, Orrin Hatch told Clinton that B abbit would not be confirmed by the Senate, and gave a list of names which included Justices Breyer and Ginsburg. Picking from a REPUBLICAN CREATED LIST, President Clinton was still only able to get about 80% of the Republican vote, which meant that 20% of the Republican vote would have rejected any candidate Clinton [ut up at all.
10.8.2005 12:42pm
Thorley Winston (mail) (www):

There is more than enough evidence for a prima facie case of cronyism. She has an extremely close relationship with Bush and has long served as his personal lawyer. You say her qualifications aren't "mediocre", but by any objective standard she is far less qualified than any Justice since the early 20th (and I think late 19th) Century.


Oh baloney, if the "objective standard" is the number of years that the nominee has practiced law, than Harrier Miers is more qualified than most of the current members of the Court. Likewise if we say that the "objective standard" is whether a nominee has been a managing partner in a law firm with 400 or more attorneys.

What those who are screaming "mediocre" and "unqualified" and "crony" are really upset about is not there is some set of "objective standards" for nominees (here's a hint: there's not and there never has been) that Miers does not meet but that there may be different standards and each of the set of standards is just as subjective as the other.
10.8.2005 1:07pm
Nat Echols (mail):
For three years hippies have been claiming that the GOP has marginalized dissent re: the War by using patriotism as a prophylactic. As a supporter of the War I dismissed this. Now that I'm on the short end of the Bush debate method, I'm starting to wonder if they don't have some kind of point.

Welcome to the club! As soon as someone accuses you of treason, let us know and we'll all go out for beers. I supported the Iraq war initially and I certainly supported (and still do) the war in Afghanistan, but I recognized this tactic back in about October 2001.

This method of debate is a terrible way to run a nation. Unfortunately, I'm more and more convinced that in a two-party system it's the only way to effectively run a movement. Such narrow majorities aren't held by allowing vigorous dissent and internal hand-wringing. If no one party had anything close to a majority, we'd see a lot less partisan loyalty. What if Bush had to get the support of two parties, one of religious conservatives and one of small-government moderate libertarians? Right now the latter group (among others) is being told to shut up and deal with it, but if they weren't part of the GOP they wouldn't have to.
10.8.2005 1:08pm
Thorley Winston (mail) (www):
On the other hand, having a little faith in the president isn't a bad idea until the hearings, where we can judge for ourselves if he has taken leave of his senses. If she shows up as incompetent, we can all call our senators and ask them to oppose the nomination. I know I will.


Excellent point. Critics of the Miers' nomination (I'm still undecided) should remember that if she bombs during the hearings, they would be a in far better position to persuade enough Senators to scuttle her nomination who will be looking for political cover than if they inundate their offices with "stop Miers" phone calls, faxes, letters, emails, etc. before there have even been hearings which would rightfully be seen as a knee-jerk reaction.
10.8.2005 1:09pm
Glenn:
Medis:
There is more than enough evidence for a prima facie case of cronyism. She has an extremely close relationship with Bush and has long served as his personal lawyer. You say her qualifications aren't "mediocre", but by any objective standard she is far less qualified than any Justice since the early 20th (and I think late 19th) Century.
I'm going to have to say that I disagree with you. In my opinion, you are a qualifications "bigot" - that is to say you have a specific set of qualfications that you consider critical and others need not apply. You are entitled to that opinion. However, what "objective standard" are you applying? I submit you have none, because such "objective standard[s]" for a Supreme Court justices simply don't exist.

Second, your claim that there is sufficient evidence for a prima facia case of cronyism is flawed. You have no objective facts other than her relationship with the president to offer. In my view, that is insufficient, as I have already said.
Well, there isn't anything clearly true about your claimed burden of proof. The "charge" of cronyism is not a criminal charge, and in light of the fact that she IS a "crony" of the President, "logic" does not somehow dictate that there is a burden of proving she is UNqualified. Instead, "logic" suggests that if someone wants to nominate a crony to an important position, then to rebut the charge of cronyism, they better be prepared to show why this person's qualifications alone were sufficient to make them the right choice.

Obviously, I don't agree. Typically, the burden of proof is incumbent upon someone making a proposal, as you and others have with the charge of "cronysim". Then you go and place a demand on the President that you have no right to - i.e. requiring he prove his good faith not by objective standards, but by subjective standards that you and others with whom you agree set for him.

I have no idea what the "criminal charge" part is ment to do, except erect a suggestion that because this is not a legal proceeding, the normal rules of debate need not apply and therefore an argument to ignorance is acceptable. If that is what you mean, I disagree. If not, I apologize in advance for associating you with a position you didn't take.
10.8.2005 2:41pm
jgshapiro (mail):
The smart thing for Bush to do if he was looking to avoid a fight was to ask the Dems for a list of candidates they would support, and pick a candidate from that list who was both qualified and conservative. Presumably, there would have been at least one on the list (McConnell? Wilkinson? Clement?) That seems to be what Clinton did with Ginsburg, i.e.: look at the GOP's list and pull Ginsburg off the list as an acceptable candidate who could get easily confirmed.

If you are looking for philosophy, then this approach works so long as the Dems operate in good faith, as did the GOP with Ginsburg. You might not get the exact candidate you want, but what difference does it make if you get someone with a phlosophy you like. For example, when Burger retired, the list given to Reagan would have probably listed Scalia (judging by the margin by which he was confirmed) but not Bork. Is there really that much difference between Scalia and Bork? Is there really that much difference between Babbitt and Ginsburg? Are those differences, if any, worth the fight it would take to go with Bork or Babbitt?

All of this assumes, of course, that what the president wants to do is avoid a fight. He certainly has no obligation to do that though, and the alternative he chose -- picking a candidate who is both mediocre and will *also* trigger a fight (at least from his own side) -- seems to be the worst possible choice for all concerned.
10.8.2005 2:51pm
Glenn:
Jay -
Yet regardless of whether the burden of proof is on Bush and Miers to prove she is qualified, or is on the Senate to prove that Miers is not qualified, we will most likely need to wait until the Senate confirmation hearings to get some solid, current evidence.
I can agree with this part of your post without reservation.

As to whether or not the burden of proof is on the President and Miers to show her qualifications are sufficient in terms of the Senate hearings, I would say this - she must not appear unqualified by her answers to the members of the Senate. If she does, she is de facto unqualified, since we have no real paper trail or other objective facts upon which to base our judgment.

My arguments were against the charge of "cronyism", which to me is not a charge the President must affirmatively defend against, since in my opinion there is not sufficient facts available to make it with force.

The qualifications argument, however, is very much subject to debate. I believe that her resume is sufficient, but certainly others are not so sure and still others think it completely unacceptable. I respect that, though qualifications tend to be in the eye of the beholder at this level. With that said, unless she proves herself to be unqualified in front of the Senate, I think she deserves the benefit of the doubt.
10.8.2005 3:01pm
The Voices in Glenn's Head:
Whistle blows: Glenn is penalized 15 yards. Use of "Bigot" is ruled to as close enough to Godwin's Law as to merit a first warning.

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches. Once such a comparison is made, the thread is over, and whoever mentioned the Nazis has automatically lost whatever argument was in progress.
10.8.2005 3:30pm
Wince and Nod (mail) (www):
Thorley Winston is right. This is an argument about which sort of qualifications are preferable. Ms. Miers has plenty of qualifications which demonstrate conclusively that she is far from a mediocre person and far from a mediocre lawyer. In fact she has demostrated excellence as both a person and a lawyer. The wish for more diversity in terms of legal experience is persuasive. I've heard people suggest that experience in contract law and intellectual property law are underrepresented on the Court, for example. (Maybe on this very site!)

I would strongly prefer Justices with an originalist perspective. But Roberts, whom everyone here assurred me was an excellent choice, does not have an originalist perspective, according to his own testimony. I would not have nominated either Roberts or Miers.

I cannot accept either the argument that Miers is either unqualifed or underqualified or that she is a crony pick.

We won't get an originalist court until we can convince the American people that non-originalist theories of Constitutional interpretation are harmful or unethical. Given their dependence on matters of questionable Constitutionality under an originalist scheme such as abortion-on-demand, the EPA, Medicare and Social Security, I am not sanguine about that happening soon.

Until originalists like me can ameliorate the nasty political problems which accompany originalism, it won't happen. Fix those problems and it becomes possible.

Yours,
Wince
10.8.2005 4:03pm
Karlotta:
Let's see...

Trust me - I am not a crook.
Trust me - I did not have sex with that woman.
Trust me - Read my lips, I will not raise taxes.

You forgot one:

Trust me - There are WMD in Iraq
10.8.2005 5:33pm
Challenge:
"Excellent point. Critics of the Miers' nomination (I'm still undecided) should remember that if she bombs during the hearings, they would be a in far better position to persuade enough Senators to scuttle her nomination who will be looking for political cover than if they inundate their offices with "stop Miers" phone calls, faxes, letters, emails, etc. before there have even been hearings which would rightfully be seen as a knee-jerk reaction."

Yes, but the President will be better off pulling her now than waiting until she bombs. Personal reasons can be given, etc for pulling the nomination. If she withdraws after a bad performance, then the cronyism charge will, unfortunately, resonate with the American public with new veracity. The President limits the damage done to his Party and his administration by pulling this nomination immediately.
10.8.2005 5:57pm
Medis:
Thorley,

Are you seriously suggesting that being a lawyer for as long as Miers is a qualification for the Supreme Court? Or being a managing partner of a law firm? And if so ... exactly how many people besides Miers would be equally well qualified by these standards?

Of course, you are just being silly. No one really thinks those are qualifications for the Supreme Court, as opposed to just the marks of a reasonably successful legal career, and I think it is telling this is the best you can do to try to refute my point.

Glenn,

Of course, you called me a bigot without actually asking my standards for qualifications. My complaint against Miers is indeed her lack of sufficiently distinguished and relevant experience and accomplishments. But I am actually quite open-minded about what sorts of experiences could count ... I think in addition to the most traditional one (being a distinguished judge), executive or legislative positions, federal law enforcement positions, relevant private practice, and perhaps more could all contribute to someone's qualifications.

But the problem in my mind is not that Miers is not a judge. The problem is that even in her own fields (private practice and government), what she has done is neither particularly relevant nor sufficiently distinguished. She was not one of the top few trial lawyers in the country. She was not an appellate or constitutional specialist. She did not hold a high federal law enforcement position like AG or head of the EEOC. She was not a Governor or Senator.

So, I am perfectly willing to consider all sorts of different qualifications. But what is so striking about Miers is that everyone of her supposed qualifications is not sufficiently distinguished or relevant enough to make Miers more qualified than hundred or thousands of other lawyers.

In short, if I am a bigot, I am only a "bigot" when it comes to excellence and achievement. And I think conservatives in particular find it very troubling that you would call that "bigotry".
10.8.2005 6:11pm
Glenn:
In short, if I am a bigot, I am only a "bigot" when it comes to excellence and achievement. And I think conservatives in particular find it very troubling that you would call that "bigotry".

First of all, let me offer an apology. I didn't mean to insult you, which is why I put the word "bigot" in quotes along with an explanation of what I meant.

What I am trying to say is that you appear to place a premium on what I would call an "elite legal resume", and you are in a lot of good company. You may fairly say that you have higher standards than those who defend Miers if you confine the debate to a certain type of experience.

But as you say yourself, you consider her qualifications "not sufficiently distinguished". Others, including me, would disagree, and Beldar says it better than most.

You claim above that you are willing to consider all sorts of different qualifications, but in the paragraph above you point out several (one of the top trial lawyers, constitutional or appellate specialist, etc.) which are apparently vital to meeting your minimum standards if one is not a judge. I can find no real reason why having none of them on a nominee's resume should be disqualifying, but you are certainly entitled to your opinion.

I wasn't trying to label you. I was trying to emphasize my opinion that confining qualifications for the surpreme court to only a certain type of legal excellence is narrow-minded.

Last but not least, your post completely ignores the point of my previous one in favor of defending yourself against a charge of "bigotry". That makes me regret my apparent inability to communicate what I meant accurately even more.
10.8.2005 6:49pm
Justin (mail):
A qualifications bigot? ::laughs::

This seems like a very unconservative theory :)
10.8.2005 6:52pm
Medis:
Glenn,

I'm perfectly willing to consider all sorts of qualifications, whether I listed them or not. My general criteria would be that the qualification in question has to be particularly relevant to the Court's work (hence, being an Olympic gymnast is not a qualification), and also particularly distinguished (hence, enforcing federal laws is relevant, but merely having an entry-level position at the DOJ is not sufficiently distinguished).

And yes, I would say that having no such experiences or accomplishments would count as "disqualifying," if by that you mean I would think it obvious that such a person was not sufficiently qualified to be a Supreme Court Justice.

So again, I think you are wrong to say I am "confining qualifications for the surpreme court to only a certain type of legal excellence." Rather, I am demanding both relevance and indeed excellence. And I think every qualification cited in favor of Miers fails on one or both of those grounds.
10.8.2005 6:59pm
Medis:
Sorry, on burdens of proof and cronyism:

There is no such thing as a general burden of proof. If you want to get technical, we would need to start with things like probabilities given what we already know and ask who is currently under 50%.

But we don't need to get technical. Both common sense and Federalist #76 suggest that when the President nominates a crony to the Supreme Court (and Miers is definitely a crony), the burden is on the President to show that this is not a case of cronyism. That can be done, of course: the President just has to show that the person is sufficiently well-qualified that the person's personal relationship with the President was not necessary to the decision ... or, in other words, the President must show that those qualifications alone would have been sufficient to motivate his pick.

And despite all the heming and hawing, I don't think anyone can seriously claim that Miers' qualifications alone were sufficient to make her Bush's Supreme Court nominee. Hence, this is an example of cronyism.
10.8.2005 7:12pm
A Guest Who Enjoys This Site:
Let's see, according to Websters, a crony is simply defined as: "a close friend."

Don't we have the President's own testimony that Miers is "a close friend?" In fact, isn't that the essential basis upon which he urges us to trust him. He has known this woman for many years and knows her heart; primarily because she has been "a close friend." [Never mind that, as supposed "close friends," they somehow have never gotten around to discussing any of the numerous controversial issues, including abortion, that might conceivably come up in conjunction with being nominated to the Supreme Court.]

The Oxford Dictionary defines cronyism as: "the improper appointment of friends and associates to positions of authority." Thus, even if Miers is a "crony," Glenn may be, at this particular moment, TECHNICALLY correct in that Miers has not been "appointed" but "nominated" pending Senatorial advise and CONSENT.

Oops. Sorry Glenn. But, Oxford Dictionary says that the definition of appoint is: "1 assign a job or role to 2 decide on." Websters says that appoint is defined as "to arrange something; to fix or set officially; designate" while also claiming that to assign means "to designate as to duty; to give or allot; to attribute; to transfer."

Let's see, your last refuge is then the definition of designate, which, according to Oxford is: "appointed to an office or position but not yet installed." Or, as Webster simply says: "to point out."

Ah, but what of the "panic room" within that refuge; i.e., "the improper appointment...?" Websters on improper: "Unsuitable; indecorous; incorrect." Websters on indecorous: "Lacking good taste or propriety."

Nope. We're stuck with the definition of cronyism. To wit...

President Bush, despite a 'lack of propriety' given recent events surrounding Karl Rove, Michael Brown, and others, 'pointed out' an indivdual he self-describes as 'a close friend' for an 'assigned role' on the Supreme Court. And, although she is 'not yet installed,' pending Senate approval, he claims to have already 'decided on' her 'official,' yet 'indecorous,' 'job assignment.'

Tell me again why there is a "burden of proof" on those who would seem to be using the term "cronyism" within its definitional context? By definition, charges of "cronyism" do not de facto require a demonstration of an individual's lack of qualification. "Cronyism" does not, by definition, carry a burden of proof vis a vis a litany of citations, stipulations, or justifications.

All one needs show is a lack of propriety in the designation of an individual, when such designation is based primarily on the criterion of said individual being a close friend or that all other criteria are subservient to this, single criterion. Just using the President's own words and a modicum of attention to timing, I cannot see where anyone can claim that the President himself has not met the definitional parameters of "cronyism."

As the comedian said, "timing is everything." Given the rather farcical (defined as "absurd or ridiculous") nature of events surrounding Miers' nomination, I guess we could say Bush DID get the timing right - if he had been writing for Seinfeld instead of trying to fulfill one of his most serious Constitutional obligations.

Hey, everyone needs a little levity in their lives now and again. And, given the pressure he's been under recently, I can't say as I blame him for wanting a little comic relief. Therefore, it must be his advisors who are at fault. Didn't anyone suggest to Bush that a DVD might be a little less expensive, financially and politically, than the current situation?
10.8.2005 7:54pm
OpposeMiers (mail) (www):
It is not only "constitutional law" -- in the sense of Brown v. Board of Education -- that a potential nominee should be familiar with, but also "constitutional law" in the sense of federal courts, federal litigation, and administrative law (which deals extensively with separation of powers concerns and the relationship between Congress and federal agencies).

The potential benefit of a Miers-type is that she may have litigated regulatory matters. In other words, she may have familiarity with administrative law, formulating federal questions, or a good working understanding of how federal courts work.

Problem: she was not a federal litigator. She did not do trials in federal district courts or try cases before federal regulatory agencies. So all of her experience in practice is not relevant to the Supreme Court. (She clerked, but simply being a clerk is not a per se qualifier for SCOTUS.)

To those who say, well, she was a great litigator in the state of Texas; well, then appoint her to a federal district court in Texas. Or put her on the Supreme Court of Texas. Or elect her to be the head of the Texas Bar. Or, frankly, if you get into the White House, have her serve as your counsel. But that doesn't mean she's qualified for the Supreme Court. Not by a long-shot.

Someone on here attacked the notion that Senators aren't per se qualified for SCOTUS. But Senators, even if their resumes are unimpressive before being elected to the Senate, once elected are actively engaged in the drafting of legislation, which requires constitutional interpretation. They gain an institutional understanding of Congress (a federal body) that is valuable on SCOTUS in deciding questions of federal law. Miers does not have a Senator's experience with federal law, so she isn't qualified in the way is the most idiotic Senator.

She's a state lawyer. Note that were she a state judge or a state legislator, then she would have experience dealing with federal law -- either writing laws that implement federal policies in your state or interpreting federal law when federal questions are raised in state court.

"Any ol' state attorney" is a horrible standard. If that is the standard, then the LSATs should be much harder and should include substantive questions of law.
10.8.2005 9:04pm
David Sucher (mail) (www):
I don't know how many here are law professors (or wannabe law professors) but I think many of you are truly over-estimating the degree of "intellectual excellence" which is required by any important public post. Our republic is doomed if the work product of our highest court requires such fine and abstract distinctions that only a supposed "elite" can work with the ideas. The stuff has got to be broken down into chunks which the population (or at least some significant part of it) can understand.

I am not arguing for mediocrity -- I am arguing against snobbery. Let the woman speak, for god's sake, and then make your judgment.
10.9.2005 1:20am
OpposeMiers (mail) (www):

IDIOT: Our republic is doomed if the work product of our highest court requires such fine and abstract distinctions that only a supposed "elite" can work with the ideas. The stuff has got to be broken down into chunks which the population (or at least some significant part of it) can understand.




You're an idiot. No one has talked about supporting the elite. You're just calling us elitists because you haven't any argument.

It is not true that average citizens must be able to understand complex legal issues. Averages citizens get lawyers for that very reason. Let me quote a circuit court case that could be appealed:


1. When the only claim of damage or injury in plaintiffs' amended complaint raising
constitutional challenges to several provisions of the Wisconsin Public Utility Holding Company
Act was that the challenged provisions "restrict and restrain" plaintiffs' "ability to attract
investments," did the district court err in granting defendants' motion to dismiss the amended
complaint for lack of subject matter jurisdiction?
2. Did the district court abuse its discretion in denying plaintiffs' Rule 59(e) Motion
for Reconsideration and for Leave to Amend the Amended Complaint?


Let's take a random survey of the public and ask them what the answer to either question is, given an array of slightly similar factual situations. Then let's determine how often they are correct.
10.9.2005 2:01am
David M. Nieporent (www):
What's pathetic about Cass's defense of Miers is that it isn't a defense of Miers at all. There's not a single fact in that column that actually describes any of Miers qualifications.

I'm not sure whether my favorite part is the "She's not a close friend of the president; she's a close friend of the president who's also a lawyer." or the "Actually, I wouldn't have picked her either because she doesn't have the skill set I want for the court, but she should be confirmed anyway."
10.9.2005 5:49am
Hoosier:
OpposeMiers:

In answer to your pop quiz:

1. Yes

2. Yes.

Can I be on SCOTUS now?
10.9.2005 12:02pm
OpposeMiers (mail) (www):
Hooiser:

Wow, I'm not sure how you answer in the abstract questions that apply to particular factual situations, or else have no meaning. No, you cannot be on SCOTUS, because you're an idiot.
10.9.2005 6:16pm
A Guest Who Enjoys This Site:
OpposeMiers - I think the not-so-gentle hint that people are trying to drop is that, while they may actually agree with your overall contention (i.e., Miers should be rejected), you're increasingly 'shrill-sounding' arguments are actually undermining the effectiveness of the case you make. Even more perplexing and frustrating is the fact that by undermining your own case, you are mitigating the effectiveness of the arguments presented by those WHO AGREE WITH YOU!!!

Calling people 'idiots' and 'stupid head' tends to make people tune out; if not pejoratively reject your argument entirely. Also, using contestable, factually erroneous (and, thereby, false), elitist-sounding arguments such as "It is not true that average citizens must be able to understand complex legal issues..." to defend yourself against accusations of 'elitism' is not only making a prima facie case for your accusers, but denotes a lack of awareness on your part of your own arguments.

In short, we appreciate your passion. Many respect the position you have taken and whole-heartedly agree with you. In the end, however, invective and extremism are not going to win the day.

Well people, you can't say I didn't try. :o)
10.9.2005 8:48pm