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The Miers Standard:
Apart from ethical and other issues extraneous to qualifications, there are at least two dimensions of "qualifications" to be on the Supreme Court: (1) Evidence of legal ability of the sort needed by a Supreme Court justice, and (2) a "judicial philosophy" by which one approaches the task of judging at this time in the Court's history.

Given the defenses of the qualifications of Harriet Miers to which I linked below, who could a Democrat president nominate to the Supreme Court who would meet what may one day be called by Democrats the "Miers Standard" (like the "Ginsberg Standard" of confirmation hearing testimony now deployed by Republicans)? Here is another way to put the question: if Harriet Miers is accepted by Republicans as qualified to be on the Supreme Court, who are they estopped from opposing in the future on the basis their of "qualifications."

I do not mean to suggest that a Democrat president will actually appoint such persons as are on whatever list is generated here. To the contrary, our most recent experience with Democrat appointments to the Supreme Court were Justices Ginsburg and Breyer, who satisfy anyone's criteria of qualifications related to ability (as opposed to judicial philosophy about which supporters and opponents can reasonably differ).

I mean this as an entirely serious exercise, rather than an invitation for frivolity--tempting and amusing as that may be.
lucia (mail) (www):
The Miers standard may, at least, mean people who haven't passed the bar wouldn't be nominated. That leaves me out.
10.8.2005 1:50pm
james23 (mail):
1. Bruce Lindsay
2. Lanny Davis
3. Harold Ickes
for starters....
10.8.2005 2:06pm
JayJ:
A quick thought:

Just speaking in terms of generalities (i.e., general categories of "qualification" as opposed to concerns about what unseemly organizations a nominee may have belonged to, etc.), it's probably the case that Republicans would be able to oppose nominees who are clearly in the Critical Legal Studies camp, e.g. Roberto Unger. CLS could be held up by Republicans as a legal theory that would preclude confirmation of adherents. But I don't see why a Democratic president would ever consider appointing a high-profile CLS theorist.
10.8.2005 2:12pm
David Hecht (mail):
It was said at the time of the Bork nomination, that if the Senate was unwilling to confirm to the bench, a nominee whom even his enemies respected for his brilliancy, then the whole issue of competence would forevermore be off the table.

It's taken a while, but I think we've finally reached that point.
10.8.2005 2:17pm
chaoticgoodnik (www):
Well, Miers' qualifications (leaving aside issues of cronyism and "trust me") seem to be:

* Leadership in the Texas Bar Association
* Chairing the TX Lottery Commission
* Work as a defense attorney (made partner in a private firm)
* Work as White House Counsel
* Being Bush's personal attorney
* Two years on the Dallas City Council

Actively working as a lawyer and some experience in government in legal and non-legal roles seems sufficient, assuming I haven't left something out. Whether her level of activity in her state bar association constitutes something of importance for a Supreme Court justice I leave to the credential-enabled to figure out.

Substantial experience in federal courts and substantial evidence of Constitutional thought don't seem important.
10.8.2005 2:20pm
JayJ:
Re chaoticgoodnik:

A question then arises as to whether anyone who is a managing partner in a major urban law firm who also has state-level political experience has the requisite "qualifications" for the Supreme Court. Or, is there something specific about leading a state bar association, or being White House Counsel for less than a year, or specific cases that Miers has handled, that puts Miers above and beyond that calculus (put in shorthand, managing partner + state-level political experience = qualified for Supreme Court Associate Justice).
10.8.2005 2:26pm
james23 (mail):
Managing partner + state level pol. contacts often is enough to put a lawyer on the state trial bench, and sometimes on the federal district courts. but SCOTUS???
10.8.2005 2:41pm
PD Shaw (mail):
Vernon Jordan?
10.8.2005 2:54pm
Charles Iragui:
I also was disappointed by the Miers nomination...

But it is interesting that conservatives vigorously repelled the idea that "advice and consent" implied a requirement to consult senators and NOW are distraught that the President has made, as they suggested he had the plenary power to do, a nomination to his own liking.

Why have nine justices? And why have them all sit on all cases? It would seem that something like a jury is being constituted. John Marshall, playing the foreman role, seems to have viewed the court this way, with his per curiam opinions. Perhaps the qualifications for the court are less academic brilliance and rather contribution to the breadth of perspective on the court, with a minimal requisite (peer) legal knowledge.

Could the Miers nomination be seen as a response to those who have complained about the multiplication of opinions in recent years? Would not fewer voices and more restrained acceptance of the law be welcome?

In answer to your specific question, Professor Barnett, one of Senate estoppel, I would ask: can any future Senate on any question be compelled by a past Senate decision? I believe the argument against continuing Senate rules is along these lines...

In terms of tradition, such as the tradition of Senate comity and unhindered debate underpinning the filibuster, many previous Supreme Court justices were hardly giants of the Law or in life. So, Harriet Miers is disappointing but hardly historically exceptional.
10.8.2005 3:04pm
The General:
Charles Iragui,

This Miers pick was the result of pre-nomination consultation with the likes of Harry Reid and other Senate Dems. Bush gave the Democrats a list of 12 leading candidates and gave them a veto. That is an abdication of the Presidential perogative and it is right to skewer Bush for it.
10.8.2005 3:14pm
mdemeusy (www):
Yikes. That's a good point. If we're willing to accept Ms. Miers, who might the Democrats nominate in the future?

Hillary? (my wife actually mentioned her) That idea makes me shudder.
10.8.2005 4:17pm
Abdul:
Pit bulls with shoe sizes over 6?
10.8.2005 4:24pm
james23 (mail):
chaoticgoodnik,
Your list of the nominee's qualifications omits her time as White House Staff Secretary. Wonder if any White House Staff Secretary has ever vaulted from that position to the Supreme Court (in a year's time, no less)
10.8.2005 4:45pm
Ciarand Denlane (mail) (www):
The Miers standard may, at least, mean people who haven't passed the bar wouldn't be nominated. That leaves me out.

While I wouldn't want someone nominated who took and failed the bar, I'm not so sure that it would be all that bad to have one person on the Court who never took it. Good idea or not, Miers' nomination isn't a precedent for appointing a non-lawyer, however. To some extent -- given the emphasis on Miers' ABA work -- it may even strengthen the view that the Court is an all-lawyer preserve.
10.8.2005 5:11pm
Willard:
Boy, if the Democrats started nominating managing partners at large law firms, instead of law professors and activists, that would be great, and a major improvement in the quality of our judges. Any real chance of that?
10.8.2005 5:42pm
Andy (mail) (www):
I would suggest that anyone who is deemed qualified for this job should be deemed ripe for estoppel.
10.8.2005 5:50pm
JohnO (mail):
Ron Klain
Rahm Emmanuel
10.8.2005 8:58pm
OpposeMiers (mail):
It is not only "constitutional law" -- in the sense of Brown v. Board of Education -- that a potential nominee should be familir 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 9:00pm
Alan Meese (mail):
Webster Hubbell (Arkansas Lawyer, Mayor of Little Rock, Chief Justice of Arkansas Supreme Court, number 3 at DOJ under President Clinton). Of course, unlike Ms Miers, he had ethical problems.
10.8.2005 9:22pm
OpposeMiers (mail) (www):
Ah, but Hubbell was Chief Justice of the Arkansas Supreme Court, and definitely saw some federal questions in his day. State courts take federal questions, and answering state constitutional questions usually requires understanding currents in federal constitutional law (as often state constitional provisions track federal ones, or use federal provisions as a baseline).

I was careful on purpose.
10.8.2005 10:11pm
JB:
OpposeMeirs,

I don't get your familiarity with federal law complaint. She should have at least the last 5 years worth of familiarity.
10.8.2005 10:11pm
Hoosier:
Richard Daley--If he can overcome his legal troubles.

Lanny Davis--If he can get out of his CNN contract.

Adlai Stevenson III--Unless he's dead. If he is:

Caroline Kennedy--Unless Uncle Ted gets drunk during the J-Committee hearings, and accidentally reads his notes dennounding Bork.
10.8.2005 10:13pm
OpposeMiers (mail) (www):

JB: "I don't get your familiarity with federal law complaint. She should have at least the last 5 years worth of familiarity."



You mean as White House counsel and as Deputy Staff Secretary. Let us assume that her experience in the Executive is substantive, contrary to (unbiased) media reports that note she was a mindless paper-pusher. Are mindless paper-pushers qualified for SCOTUS, JB?

1. She was an Executive policy-maker. Making policy for the President is quite different than litigating cases. An AG or the Solicitor General or the head of a DOJ Division litigates cases. One who litigates cases has to craft arguments that can be accepted by the judiciary, which requires understanding the current caselaw and how prudence is exercised in practice. Even making policy as an independent agency head is quite different than making policy for the President, because an independent agency head cannot be fired at the President's whim. Thus, an independent agency head will make decisions that are subject to legal challenge (again, prudence must be exercised) and the discretion exercised is the agency head's own. Harriet Miers has simply told the President what he wants to hear. Otherwise, he would have fired her. If you disagree, please explain why George Tenet received the highest honor a civilian can receive despite his failure and why Rumsfeld is still Secretary of the Defense despite Abu Ghraib.

2. Despite your question, I do not think you honestly believe the lifeworld that it implies. I quote:


"Qualified" means that the nominee meets President Bush's requirements for a Justice, i.e., that she is the sort of person that Bush himself would choose. Almost by definition, then, Miers is eminently "qualified," and we know this because Bush in fact did choose her.

By the same irrefutable logic we can conclude that the Bush tax cuts will "pay for themselves," the deficit is "under control," the Administration's response to Katrina was a "success," and the war in Iraq was "justified" because of Iraq's "weapons of mass destruction."
10.8.2005 10:38pm
Alan Meese (mail):
As OpposeMiers notes, Webster Hubbell may have been MORE qualified than Ms. Miers. So, in response to Randy's question, we might ask whether we would have conceded that Web Hubble was qualfied for SCOTUS. If not, then a fortiori . . .
10.8.2005 11:26pm
Hoosier:
OpposeMiers:

I also tend to "oppose Miers", at least until she wows me at the hearings. If she gets that far. But anyone who can perform the job of staff secretary is no "mindless paper pusher." The job title makes it sound like a secretarial job. In fact, the staff sec not only "pushes" papers to the POTUS, he or she decides what gets onto the president's desk--and thus into the president's brain,if any--AND creates the "executive summaries" that go on top of the documents. The summaries provide action directives, analysis . . . whatever the president needs to act upon the colosal volume of paper produced by any executive branch bureau, office, commission, or department. In short, the position requires incredible organizational and analytical skill, plus working familiarity with every issue that the president will be asked to decide or speak on. (In sci-fi terms, this ain't a position for one of Douglas Adams' Volgons.)

This, alone, is not a qualification for SCOTUS. But had Miers been, say, a federal judge of high standing, I would have considered her Staff sec days a trump card: Clearly, she has the skills to deal expeditiously with the huge work load of the Supremes. And the broad familiarity with governmental issues that she achieved as staff sec would give her a tremendous practical resource to draw upon when deciding a wide range of cases. The fact that she has little background in constitutional jurisprudence is another matter . . .

She strikes me as unqualified. But not BECAUSE of the professional experiences she has had. Rather, because of those that she has not.

FORMER WH STAFF UNITE! You have nothing to lose but your slander!
10.9.2005 11:38am
OpposeMiers (mail) (www):
I'm not really sure what your point is, Hoosier, other than to refute David Frum and unbiased media reports that assert the opposite (Miers, in particular, was a paper-pusher -- not that all WHC are paper-pushers in general). In any event, the partof your post that I understood was:


She strikes me as unqualified.
10.9.2005 6:13pm
Shelby (mail):
I'm a California-licensed attorney working as a paralegal in Oregon until I take the February bar here. One of my coworkers (as a paralegal) was for 16 years a federal defense attorney in Louisiana and Oregon. When she was 29, some 20 years ago, she argued a criminal case in the Supreme Court, and won a reversal of a Fifth Circuit decision.

Based on what we've seen of Miers' record, my colleague has more relevant experience interpreting and applying federal and constitutional law than does Ms. Miers. She may not have demonstrated the same administrative skills, but this is not the Chief Justice position, where those are highly relevant.
10.9.2005 8:27pm
Hoosier:
Oppose:

"unbiased media reports" say that she was "a mindless paper-pusher."

That's funny.
10.10.2005 1:25pm