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The Selling of Harriett Miers, Part II:
From the New York Times:
  Sean Rushton, executive director of the Committee for Justice, said generating enthusiasm for Ms. Miers was proving difficult because "anytime we put out something positive about her it gets shot to pieces by all our allies and the blogs."
  The same article has an interesting discussion of Harriett Miers meeting with Senate Judiciary Committee Chairman Arlen Specter:
  Several Republicans, including Mr. Specter, said they steered clear of asking Ms. Miers questions about constitutional law. Mr. Specter, who said the timing of the confirmation hearings would depend in part on when Ms. Miers feels ready, said he initiated a discussion of the shifting standards the Supreme Court has applied in interpreting the Commerce Clause of the Constitution, but only to illustrate to Ms. Miers the kinds of questions she would face during her hearings.
  "I did not ask her about it because I don't think she's ready to face it at the moment," he said. "Look, the lady was White House counsel dealing with totally other subjects until Sunday night when the president offered her the job. And Monday she's sitting with me. I'm not going to ask her questions which she hasn't had a chance to study or reflect on."
PersonFromPorlock:
"I did not ask her about it because I don't think she's ready to face it at the moment"

Well, in that case....
10.8.2005 2:59pm
The Voices in Ms. Mier's Head:
There was some talk in another thread about "objective standards" by which to judge her qualifications for the Supreme Court. I agree that standards are ultimately subjective, but is there really a strong case to be made that Harriett Miers has the poorest qualifications in, say, 100 years?
10.8.2005 3:37pm
jgshapiro (mail):
That should win the Roman Hruska award for 2005. (The most damning endorsement possible, without intending to be.)
"Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?"

U.S. Senator Roman Hruska (R-NE) in defense of Harold Carswell's SCOTUS nomination on the charges that he was 'mediocre'.
Carswell's nomination was defeated 51-45.
10.8.2005 3:46pm
Brock (mail):
I want a Supreme Court nominee who has spent years lying awake at night wondering about the commerce clause's proper interpreation. NOT someone who has to read up on the commerce clause to remember how she feels about its current excessively-broad scope. This is outrageous.

There is no doubt in my mind Miers will, if confirmed, take a more practical, modern approach to the commerce clause rather than joining the Scalia/Thomas camp in wanting to pull it back to its original meaning. That will really be a loss and federalist, non-religious conservatives like me find Miers such a lost opportunity.
10.8.2005 3:51pm
David Sucher (mail) (www):
People are making far too much of the supposed intellectual horsepower it takes to be a Supreme Court Justice. I simply don't believe -- and I say that as a Bush-disliking liberal and non-practicing attorney who did very well in Con Law in law school, fwiw -- that the Supreme Court is about being a Talmdic scholar. It's about commonsense, shrewdness, hard work, collegiability and being able to read. Whether Miers has those qualities I have no opinion.

I am amused by the pickle into which Bush seems to have gotten himself but I am also appalled by the distasteful snobbery I see from both right and left. Constitutional scholarship is not contiguous with the basic knowledge of law and, more importantly, the human wisdom it takes to be a good Justice. Just consider Justice Scalia as an example.
10.8.2005 4:17pm
The Voices in Ms. Mier's Head:
But even Harold Carswell, whom Hruska was endorsing, had been a US District Court Judge for 11 years. So, at least until his arrest in 1976 for "making advances to an undercover police officer in a Florida men's room," and at least on paper, his qualifications were quite defensible.

Likewise, Souter may be a quirky, reclusive bachelor, and stink as a judge, but he was Rhodes Scholar.

Has anybody been worse, on paper, than Miers in 100 years?
10.8.2005 4:18pm
A F -- a different one:
Yet another quote highlighted by Ori for us to gauge Meirs that actually says nothing about Meirs, but says something about what someone thinks about Meirs, and is manipulatively used by the Media (and, apparently, now Ori) to tell a story that is premature and not born out by the facts. Hogwash.
10.8.2005 4:23pm
james23 (mail):
I gather Specter also said she "needs a crash course in cosntitutional law."
yikes!
10.8.2005 4:41pm
Elliot123 (mail):
One of the things I have noticed in the discussions of Miers is very similar to what is seen in many other walks of life. People want the highest positions filled by folks like themselves. Engineers want the CEO to be an engineer. Acountants want him to be an accountant. Marketing folks wnat him to be from marketing. But a bit of observation shows that very successful CEO's come from all the various specialties. (So are a number in federal prison.)

The legal profession seems the same. Judges, law professors, trial lawyers, appeals specialists, and the SC bar all want one of their own.

It looks like the practitioners see their entire group elevated when one of their own gets the corner office.
10.8.2005 4:43pm
Dirk C:
Hs there ever been a Justice less qualfied on paper? How about Lewis F. Powell:

1907–98, American lawyer, associate justice of the U.S. Supreme Court (1971–87), b. Suffolk, Va. He studied law at Washington and Lee Univ. and was admitted to the Virginia bar in 1931. He had a successful law practice in Richmond and held several local offices. Powell also held several prestigious positions, including president of the American Bar Association and chairman of the Virginia Board of Education. After repeatedly declining President Nixon’s requests to join the Supreme Court, he finally accepted (1971) the post.

But I disagree with the premise that this type of background is less worthy or distinguished than, say, Souter's: Rhodes scholar, NH S. Ct. justice.
10.8.2005 5:06pm
The Voices in Ms. Miers' Head:
Dirk C:

Sorry, but Powell obtained a Masters degree from Harward Law. Try again.
10.8.2005 5:15pm
Defending the Indefensible:
If we're going to nominate people from outside the legal elites, picking a non-elite lawyer is not the way to go. With that said, I'm certainly not opposed to the argument in principle of diversity of experience on the supreme court.

Bill Cosby, for instance, would be an extraordinary nominee who would stand a good chance of being confirmed. Harriet Miers is no Bill Cosby, however.
10.8.2005 5:25pm
Wilson (mail):
I was under the impression that most of the cases before the Supreme Court don't deal with Constitutional Law.

Aren't we judging her on her ability to do 35% of the job isntead of the remaining 65%? And are we being faulty in not judging other judges for their ability to do the other parts of the job that don't deal with con law?
10.8.2005 5:32pm
Reason:
Responding to James23:
(From the nytimes.com, 10/9)

It was the third time since he picked Ms. Miers on Monday that the president has come to her defense. His remarks came as Senator Arlen Specter, the chairman of the Senate Judiciary Committee, who presides over confirmation hearings, offered a blunt assessment that was yet another sign that the nominee faced an uphill battle on Capitol Hill. Though Mr. Specter called Ms. Miers "intellectually able," he said she had a "fair-sized job to do" to become fluent in the language of constitutional law, which will be essential for senators who want to examine her judicial philosophy in deciding whether to confirm her.

"She needs more than murder boards," Mr. Specter, Republican of Pennsylvania, said in an interview, referring to the mock question-and-answer sessions most nominees use to prepare for their confirmation hearings. "She needs a crash course in constitutional law."
10.8.2005 6:35pm
Medis:
Powell was a fellow of the American College of Trial Lawyers and national President of the ABA. I think one could say that he was the same "type" of lawyer as Miers. I think it is also obvious that he was a much better version of that type.

Anyway, I went back using a list of non-judge Justices, looking for someone who was as unqualified as Miers "on paper". Note that I am assuming that being a judge counts as a good qualification.

I then took out people who had something like a top position in the DOJ, headed the SEC, and so on. I also took out the people who were Governors, Senators, or other Secretaries of major departments (like Labor).

That already gets you way down to only a handful of people. I then started looking at bios in depth. Personally, I thought the last one who seemed (potentially) as unqualified as Miers was George Shiras, but you could make a case for Pierce Butler. Apparently Butler was also a controversial nominee who was primarily distinguished by his eminence in Minnesota and his success as a corporate attorney (railroads). But I found one biography which noted that Butler had been asked by the Attorney General to represent the United States in several antitrust cases.

So, it seems it comes down to that: was Pierce Butler more qualified than Miers as a result of his experience enforcing federal antitrust law? If so, then I think you have to go all the way back to at least Shiras (1892-1903) ... over 100 years.
10.8.2005 6:36pm
Medis:
Wilson,

Of course, Con Law is particularly important not just due to its frequency, but also because of the difficulty of overriding the Court's decisions (it takes an Amendment, not just something like a new statute or regulation).

But I think your point is still a good one, which is why I think, for example, that those who have had, say, top positions in the DOJ, or headed up other federal agencies with law enforcement responsibility (eg, the EEOC or SEC), or who have been heads of major executive departments, all have relevant qualifications for the Supreme Court.
10.8.2005 6:40pm
Guest2 (mail):
"[A]nytime we put out something positive about her it gets shot to pieces by all our allies and the blogs."

Those damn blogs! They're as bad as short-sellers!
10.8.2005 7:00pm
Elliot123 (mail):
Medis,

How is being a senator a qualification for the SC? I wonder how we would rank Miers' qualifications for the SC against a list of all current and past senators?
10.8.2005 7:33pm
Beerslurpy (www):
Why would someone "need a chance to study and reflect on" the fundamentals of our government and legal system? How can someone be involved in law for decades and not get a chance to read Wickard v Filburn? I mean, its only the bedrock of 70 years of unrestrained government expansion.

Many may not have been thrilled with Robert's nomination, but all must concede that he had an understanding of the issues that was both broad and deep. I took great pleasure at hearing him accurately explain the holdings of US v Miller and accurately explain the issues presented in the environmental lawsuit standing case (forget the name). Not because I agreed with him one way or the other, but because I saw that he was both well informed and precicely honest about what laws and precedents meant. Here was a man who took pride in "getting it right."

For a SCOTUS nominee to be unable to answer interstate commerce questions off the cuff is very worrisome. This isnt some obscure and highly technical area of law, it is a very simple area of law. It only becomes difficult when you wish to preserve the lie of Wickard et al and seem honest in doing so.
10.8.2005 8:49pm
OpposeMiers (mail):
It is not just "constitutional law" -- in the sense of Brown v. Board of Edcuation -- that a potential nominee should be familir with, but "constitutional law" in the sense of federal courts, federal litigation, and administrative law (which deals extensivle 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 or 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.

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 longshot.

And to Elliot: Senators, even if their resumes are unimpressive before being elected to the Senate, once they are there, actively engaged in the creation of legislation, they have an institutional understanding of Congress (a federal body) that is valuable on SCOTUS in deciding questions of federal law. Miers does not have experience with federal law, so she isn't even as qualified as 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.
10.8.2005 8:53pm
Cornellian (mail):
Hmm, I think I might have a copy of a ConLaw commercial outline (Gilbert's or some such thing) left over from first year law school I could lend to Ms. Miers so she can "cram" for her exam before the Senate Judiciary Committee.

I've always rather liked Senator Spector for his independence and I think he's a very smart guy who probably knows at least 10 times as much about ConLaw as Harriet Miers. He could sink her nomination in about 10 minutes with just a few straightforward questions about the subject. Then the whole country could watch her flounder on CSpan trying to remember the difference between Warren Burger and Earl Warren. Maybe his comments are the diplomatic way of saying to the White House that it's time to bail on this nomination.
10.8.2005 9:03pm
Bezuhov (mail):
"Harriet Miers is no Bill Cosby, however"

Actually, I believe there are some significant ways in which she is. Both have come to appreciate that many traditionally liberal ends can best be served by conservative (especially in Miers' case, judicially conservative) means. Miers' comment regarding Bush's brilliance relates directly to his ability to resolve for her the cognitive dissonance from which many contemporary liberals suffer.

If one actually listens to Bush's speeches and takes them seriously - a small number, I know, but Miers' is an evocative representative of just this group - you will hear a man who is authentically brilliant in connecting liberal ends to conservative means. If this were not so threatening to those who benefit from the current status quo, there would be many more as aware as she is of his brilliance.

The question of whether Bush is a sort of idiot savant whose brilliance in one area is matched with pathetic incompetance in others is an open one, but Miers ability to appreciate the vision Bush has articulated speaks well of the likelihood of her possessing the imagination necessary to be a truly influential justice.

I'm not talking about "penumbra" imagination, I'm talking about the sort of imagination that could see a Union preserved through the abolition of slavery and articulate such a vision in a manner at Gettysburg that made that reality possible.
10.8.2005 9:16pm
David Sucher (mail) (www):
Has anyone ever heard of the concept of "payback?" Do you remember how the right-wing of the Republican Party made Specter crawl to get his Chair at Judiciary?


I wouldn't be so quick to quote Specter on the substance of Miers' competence to be an Associate Justice. As to attitudes, sure. But as to whether she is qualfied or not, that's another story.
10.8.2005 9:54pm
OpposeMiers (mail) (www):
Good. I hope Specter rips her apart.
10.8.2005 9:57pm
A Bemused Guest:
Has it ever occurred to anyone besides SimonD that there might be something wrong with this nomination being correct for conservatives when, in fact, so many liberals seem to feel it is the correct one for them?


...connecting liberal ends to conservative means...


Just what does that mean?

Raising people out of poverty through trickle down economics? That could be construed as a stated (though maybe not factual) 'liberal end' through conservative means.

Seating a potentially liberal-voting justice on the Supreme Court by getting a 40% approval rated President (who claims to be a conservative but has, to the minds of many true, conservatives demonstrated limited evidence thereof) to nominate a former Democrat (who supported Al Gore and other liberal causes) turned Republican (who has purportedly NEVER spoken about key issues with the Republican President she serves) so as to avoid a potentially embarrassing scenario for the liberal Democrats in a Senate controlled by a 55 vote Republican majority that is now divided in such a way that the liberals have not managed to do on their own.

That could be construed as "liberal ends through conservative means."

Does Democratic support for a Republican nominee automatically negate the value of that nominee? No.

But, given that the Democrats have shown no hesitance in attacking Bush on any number of issues; given that the liberals were specifically geared up to resist ANY, TRUE conservative Bush might have nominated; given the inherent cronyism involved in this nomination at a time when Democrats are viciously attacking Bush on exactly this type of behavior; and given Miers' past involvement in traditionally "liberal" issues such as minority activism, women's rights agenda, reports recommending formation of International Criminal Courts and gay adoption, not to mention having supported Al Gore (which has NOTHING to do with a lack of a Republican party in Texas forcing support of "conservative" Democrats)... One is forced to wonder whether Bush's "brilliance" in tying "liberal ends to conservative means," also known as "reaching across the aisle," has led him to be a little too smart for his own good in this situation.
10.8.2005 11:39pm
mike:
Be fun if she asked for an immediate hearing, like Tue ... so as to avoid the murder boards. Then we'll see who is truely unprepared and unworthy.
10.8.2005 11:46pm
A Guest Who Enjoys This Site:
Regarding the first quote: I gotta ask. If "all our allies and the blogs" are shooting her supposed "positive traits" to pieces, could there be a clue in there that somebody might want to pick up on?!

As to the second set of quotes, I'd like to wait until we find out whether this is going to end up like the "Warren" quote; i.e., the full context isn't readily apparent. I think it perfectly plausible that what Specter meant was that it is difficult for anyone, including a Scalia, Roberts, or Miers, to have a "cold turkey," in-depth, technical discussion of any specific case or legislation pulled "from the hat" when these meetings are, for all practical purposes, generic "meet and greet" introductions to the various Senators.

Could the conversation be steered that way? Absolutely. Should they have some content on that basis? Most certainly. Would a lengthy debate or discourse with each, individual Senator accomplish what these meetings were intended to do? Nope.

Sorry guys. But, that's what the PUBLIC hearings were set up for. Should we demand that Senators use these public hearings for their intended purposes rather than as opportunities for soundbites and ten minutes with the cameras focused on them? Positively.

Is there any chance that it will happen that way? Gee, I guess lawyers DO have a sense of humor.
10.8.2005 11:57pm
Cornellian (mail):
I'd put my money on Roberts doing better in any constitutional discussion before the Senate Judiciary Committee without preparation over Miers with a week to prepare.

As to the second set of quotes, I'd like to wait until we find out whether this is going to end up like the "Warren" quote; i.e., the full context isn't readily apparent. I think it perfectly plausible that what Specter meant was that it is difficult for anyone, including a Scalia, Roberts, or Miers, to have a "cold turkey," in-depth, technical discussion of any specific case or legislation pulled "from the hat" when these meetings are, for all practical purposes, generic "meet and greet" introductions to the various Senators.
10.9.2005 1:48am
Clint:
OpposeMiers (7:53 PM)-

You wrote: "Problem: she was not a federal litigator. She did not do trials in federal district courts.... She's a State lawyer."

You appear to be misinformed.

There's a list of some of her cases here (U. Mich.)

She argued quite a few cases before the 5th Circuit, going all the way back to 1975, and in front of the U.S. District Court for the Northern District of Texas all the way back to 1974, right up to a case decided just over a month ago, in a federal district court, involving federal patent law and broadcast media over the internet. How many cases involving the internet should we expect to appear before the Court over the next decade or two?

She's got thirty years of experience briefing and arguing cases before federal district and circuit courts.
10.9.2005 2:17am
ANM (mail):
" a man who is authentically brilliant in connecting liberal ends to conservative means"

You oversimplify. He does that and the reverse. Huge spending increases is clearly a liberal mean, liberal end. The No Child Left Behind is a liberal (as its unconstiutional) bill. Social Security Privatization is a conservative mean. One need not advocate liberal policies to favor traditionally liberal ends. You are just parroting the ideas of "identity" politicans. Does being libertarian/conservative mean you are anti-black, or anti-poor? No. You may believe that the best way to advance these causes is through libertarian policies, by say, eliminating the minimum wage (Milton Friedman-"Most anti-black law") or the Davis-Bacon act (enacted to prevent blacks from undercutting unionized whites, according to Richard Epstein). A white supremacist could even support the democrats for their support of abortion (minority women abort far more than whites). Yes, certain issues preclude certain parties, but the point stands.

Question: Is the term "social conservative" a contradiction?

I think so, but I do not know what conservatism truly is. Put differently, I believe social conservative is a totally legitimate position, be you libertarian or conservative. BUT, it should be a supplementary and not exclusive view, as "social" issues should be addressed in society, and not politics, where politics is not explicitly involved.
The teetotalers split over the issue of achieving their goal, of eliminating hard liquor consumption, through politics. Even before it became political, it was very effective.
I consider the attempt to make every social issue a political issue a perversion of both society and the role of government. (I think but I'm only a 17 year old) The progressives started it and the civil rights movement enshrined it.

BTW: Is this site libertarian, conservative, or a mix of both?
10.9.2005 2:49am
OpposeMiers (mail) (www):
Clint: YOU appear to be misinformed. Or perhaps you don't read the cases that you cite.

Let’s actually analyze the cases for which Miers was “counsel” – which merely means her name was on the brief submitted to court, not that she wrote the brief – and see whether they are particularly weighty enough issues to legitimately call her a “federal litigator” with a straight face.

In particular, let’s look at that appeal from the United States District Court for the
Northern District of Texas.

There, the court reversed the trial court's judgment and remanded for a determination on the merits of appellant surety's suit for construction retainage. The court found that appellant's suit was against appellee Secretary of the Department of Housing and Urban Development and not the United States, and, thus, claimed amounts, if found valid, would be payable out of an insurance fund and not the Treasury. Therefore, sovereign immunity did not apply.



Wow, a rudimentary issue of federal law that ANY former district court clerk could handle; sounds like that Habitation Clause case that Miers handled, too! She’s really good at arguing basic issues of jurisdiction!

Let’s look at 756 F.2d 1197; 1985 U.S. App. LEXIS 28820. There, the case may have been filed in federal district court, but all of the issues were state law issues – contracts, particularly the doctrine of mutual mistake. The fact that she argued a case in a federal district court because the jury selection would have been broader is tactically smart, but not proof that she can handle complex federal legal issues.

761 F.2d 237; 1985 U.S. App. LEXIS 30049, Miers was one of 11 lawyers on the case, and the argument was that a particular mortgage agency was an agent of the Federal National Mortgage Association under the Texas Debt Collection Act. Again, the issue was one of state law – what the Texas Debt Collection Act meant.
1989 U.S. Dist. LEXIS 4213 was about the awarding of attorney’s fees in a settlement. There was no substantive federal issue in play here. The case had settled.

2005 U.S. Dist. LEXIS 18715, that “difficult patent case for Microsoft” that she “single-handedly” litigated involved other lawyers and was a simple summary judgement motion. They won because there was literally no genuine issue of material fact in dispute. It was a simple open and shut case. Again, it shows no ability to understand complex legal issues, but a basic understanding of civil procedure that a former federal district court clerk should have.
2003 U.S. Dist. LEXIS 10604, likewise, seems to a complex antitrust class action, until one reads the opinion to discover the issue in the federal court – lo and behold – is about basic civil procedure again; privilege logs under F.R.C.P.26(b)(5). Wow, an attorney who knows the ins and out of document production – put her on the Supreme Court!
2003 U.S. Dist. LEXIS 10595, likewise, seems to be a complex antitrust issue, involving a state VIT tax intersecting with the Sherman and Clayton Acts, until one realizes the simple issue before the court is whether the class can be certified under FRCP 23(b)(3) – lo and behold – another case that Harriet Miers participated in that came down to reading the rules of civil procedure. What an ace lawyer!
The other cases deal with Tex.Civ.Prac. &Rem.Code Ann. § 63.001(2)(B) [Texas Civil Procedure], Rule 6(e) of the Federal Rules of Criminal Procedure, and the standard of de novo review!

AMAZING STUFF!

Popeko v. US – Harriet Miers was appointed by the court to litigate this case ON HER OWN. In other words, this case best shows off her legal skills. She lost – resoundingly – and the Court did not even think her argument to be any good. Read it for yourself.


WHAT A FEDERAL LITIGATOR! I WAS TOTALLY WRONG, CLINT!
10.9.2005 3:02am
OpposeMiers (mail) (www):
The POPEKO CASE:

http://www.law.umich.edu/ library/news/topics/miers/ casesascounsel/5thcir/popeko.pdf
10.9.2005 3:04am
A Guest Who Enjoys This Site:
ANM -

You will find a wide mix of ideas and political leanings on this site. That seems to be the point. There is, of course, a filtering factor in that contributors have an intrinsic interest in politics, social issues, and the law. But, let's not hold that against them.

You state that you don't know what a conservative is and you ask whether 'social conservative' is a contradictory term. But, you then contend that you believe social conservatism is a totally legitimate position, be one a libertarian or conservative. Let's see, where do I start?

First, assuming you are not stating a rhetorical "I don't know," then I must point out a certain intellectual inconsistency in not knowing what something is, but feeling that it is a totally legitimate position. If you don't know what "it" is, then you cannot possibly know if "it" is legitimate or not.

Second, you don't need to be libertarian or conservative to be a 'social conservative.' Neither do you have to be Democrat, Republican, Independent, or pick your party.

In attempting to define oneself or understand how others define themselves, you must look to the source and not rely on others' often agenda-ridden descriptors. As an example, in 2003, a report came out of Berkeley (that bastion of conservatism and rational thought since 1968 - ahem) that "Hitler, Mussolini, and former President Ronald Reagan were individuals, but all were right-wing conservatives because they preached a return to an idealized past and condoned inequality in some form." Now, is it just me, or do I sense a potential problem with how the author and the researchers view conservatives and, as a result, their defintion(s) might be JUUUUSSSST a touch skewed?

On the other hand, as John W. Dean points out in a rather nice, 2004 online article entitled "What Is Conservatism?:"


The Cato site quoted Reagan to suggest the two [libertarianism and conservatism] are, at least, closely related: "Ronald Reagan often said that 'the very heart and soul of conservatism is libertarianism.'" And Cato Vice President David Boaz -- who has written extensively on libertarianism - added that, "These days I put it somewhat differently: the best aspect of American conservatism is its commitment to protecting the individual liberties proclaimed in the Declaration of Independence and guaranteed in the Constitution."


Again, is it just me, or is there an often repeated effort to appeal to "Red State" populations by aligning oneself with Ronald Reagan? [you can find Dean's rather interesting article at - http://writ.news.findlaw.com/dean/20041217.html]

In short, what you will find is that even conservatives have trouble defining themselves. However, if you were to ask liberals the same question, "How do you define yourself?," I think you will find that they have just as much trouble. Part of the problem is not one so much of recognition (e.g., "I know one when I see it."), but an issue of not wanting to exclude potential 'members of the movement.'

The bottom line, however, is that defining 'conservative' is much like trying to define 'hot.' To give it meaning, you must have an opposite. Hot-Cold. In-Out. Right-Wrong. Good-Evil. Up-Down. Mainstream-Radical. Rural Values-Urban Values. Conservative-Liberal. To a significant point, one is ultimately defined by the other.

This is part of the criticism of both Republicans and Democrats in that they tend to "attack" the other side for their policies/agenda while curiously leaving their particular policies/agenda rather vague; hoping supporters will infer that they actually stand for the 'opposite' of what they are attacking. Example: "Bush is prone to cronyism!" Inference - Democrats are not. Oh, sure. "Democrats are fiscally irresponsible!" Inference - Republicans are fiscally responsible, believing in balanced budgets and low or no deficit spending. Uh, guys? When did the Grand Old Party abandon this philosophy?

What you can do then, is look to some generalized DIFFERENCES. Although somewhat oversimplified and often contradicted, there are a few, stereotypical divergences:

Conservatives = individual responsibility; small (limited) government; lower taxes (part of smaller gov't); emphasis on the use of the free market and capitalism to regulate the economy; fiscal responsibility (e.g., Let's not take Bush as a prime example of 'conservatism'); a strong military; emphasis on "states' rights;" emphasis on individual rights rather than collective rights (see the Bill of Rights); belief in traditional and traditionalized institutions such as family, church, police, military, etc.

Liberals = it depends on what era you are trying to reference for, at one time, "liberal" was a term somewhat synonomous with labels such as libertarian, moderate, and progressive. In a sense, it was many things that today's 'left-wing' is not. For a nice overview, I recommend this site - http://en.wikipedia.org/wiki/Liberalism

By way of summary, I think you are going to find that, historically speaking, "liberalism" is closer to the traits I just presented as "conservative" above. In a very real sense, both conservativism and liberalism would now be seen by many from the past as the "centrism" or "moderate" positions of today's political parties. Confused yet?

What I am leading to is that there is a difference between actual definitions and how a term is used to represent oneself or label an opponent, in an effort to engender support or opposition respectively, among specific constituencies.

Cutting out the obfuscation, explanation, and vacillation, Wikipedia defines social conservatism as:


a belief in traditional or natural law-based morality and social mores and the desire to preserve these in present day society, often through civil law or regulation. Social change is generally regarded as suspect, while social values based on tradition are generally regarded as tried, tested and true


If you are a 'socially conservative Republican' OR a 'socially conservative Democrat,' you would tend to believe that such a definition encapsulates your ethos. As a practical matter, the degree to which you define or adhere to terms such as "tradition," "social values," "preservation," and "social change" will be greatly dependent upon how you view/value those issues I presented under "conservative = " above.

So, ultimately, what is my point and the purpose behind this dialectic? Simply this... Before becoming too ardent and ensconced in your perceptions, definitions, terminology usage, and political alignments, you might want to spend a little time with history and objective analysis rather than rely on chic or en vogue labels combined with paradigmatic histrionics.
10.9.2005 4:48am
Medis:
To answer a question above,

I would consider being a Senator a qualification for the Supreme Court because the Court often has to interpret and apply federal law, and thus a person who was a federal legislator might be able to draw on his or her experiences for useful insights. Senators may also have thought carefully about the proper structure of government and more specifically about the proper relationships between Congress, the President, and administrative agencies--an important area of concern for the Court. Finally, Senators will have participated in the election process (on a statewide basis), and again I think they may gain useful insights from such experiences.

As an aside, I would note that Representatives may share many of these experiences, but I would have a preference for Senators because I basically buy into the notion that Senators are more likely than Reps to be deliberative and focused on national rather than local interests. But this isn't a strong preference and I am sure there are distinguished members of the House who would fit my description better than most Senators.

I should also note that in my mind almost no qualification is likely to be sufficient on a per se basis, so I am not suggesting that all Senators are going to be qualified to sit on the Supreme Court. But in since being a Senator is both sufficiently relevant and sufficiently distinguished, it counts as a qualification for the Supreme Court.
10.9.2005 11:09am
Clint:
OM-

"Shouting" in ALL CAPS with dripping sarcasm doesn't help your case.

You asserted that she had no experience litigating in federal court. That was factually incorrect.

That you have no respect for the cases she litigated doesn't make them cease to exist.

If you'd argued that in your opinion she had argued no complicated, difficult, or significant cases in federal courts, I wouldn't have commented. That's your opinion -- and you're welcome to it. I think Beldar has more reasonable thoughts about these cases, but I'm mostly still a Miers agnostic.

We've seen an enormous amount of bloviation on the basis of ignorance rather than fact (e.g. "She must be a stealth Souter because I don't personally know anything about her judicial philosophy vis-a-vis the dormant commerce clause!!! Yeeaaaaaargghhh!!!") since her nomination. Whether your assertion was misinformed, or rhetorical exaggeration, it wasn't helpful toward clearing the air so we can figure out who she is and how capable she is.
10.9.2005 1:05pm
Bezuhov (mail):
"...connecting liberal ends to conservative means...
Just what does that mean?"

Some examples:

1. Spreading democracy by standing up to bad guys who seek to prevent it, not appeasing them.
2. Alleviating poverty by attacking its true roots: the dependency culture and family breakdown
3. "The soft bigotry of low expecations"

I'm not arguing the validity of either ends or means (here, though will if necessary), just pointing out what it is about this president that is appealing to those who seek these ends and have met with past frustration due to the inadequate means conventional wisdom provided for achieving them.

That group is relatively small, but uncommonly influential, and is represented well by Harriet Miers.
10.9.2005 1:19pm
anothereugene (mail):
Some examples:

1. Spreading democracy by standing up to bad guys who seek to prevent it, not appeasing them.
2. Alleviating poverty by attacking its true roots: the dependency culture and family breakdown.


It's not working. Please try harder.
10.9.2005 1:34pm
OpposeMiers (mail) (www):
CLINT THE STUPID-HEAD:

No, Clint, my argument was that what little experience she had with federal litigation (as a clerk) was insufficient to qualifiy her to SCOTUS. That is why I said, right after the sentences you selectively quoted: "all of her experience in practice is not relevant to the Supreme Court."

Thus, I did not say "[Miers] had NO experience litigating in federal court." In fact, elsewhere on this page, I note that she in fact did try Jones v. Bush, which was a case of federal import. My point there -- as here -- was that any former judicial clerk could have tried an won the case(in the furture, you might try reading other's posts in context, i.e., without snipping off their conclusions.)

I am sorry that I did not use CAPS to explain my emphasis, but when I say "federal litigator" and when I say "try cases," I mean that she is the lead attorney or the attorney who contributes most to the case and that there are substantive federal issues at play that she grapples with. Yet in every single one of the cases that you cite -- and I read them, Clint -- the issue is a civil rule of procedure that is summarily decided or applied. Moreover, Miers is usually one of a dozen lawyers on the case. It seems a bit silly to call someone a federal litigator because he or she has her name on a brief submitted to a summary judgment won on the interpretation of a civil rule of procedure. As was my point, ANY FORMER FEDERAL JUDICIAL CLERK COULD DO THAT, SO IT IS NOT A QUALIFICATION FOR THE SUPREME COURT OF THE UNITED STATES.

The proof that this is my concern is quite apparent. In fact, I note that if one wants to evaluate Miers' skill -- to discern whether she has the stuff of which federal litigators are made -- I direct readers here to the POpeko case, which Harriet Miers handled all by herself and which was in federal court. If Miers is a "federal litigator who tries cases in federal court", then she should be able to win a simple case over a rule of procedure in federal court all by herself, right? But she loses resoundingly, and her case theory makes no sense. Why don't you read the case instead of reading Beldar's idiotic pro-Texas posts, and see how insufficiently qualified the person President Bush has nominated truly is. I know it's hard to evaluate facts when they destroy your belief system, but the facts are that if Harriet Miers is a "federal litigator," then John Roberts is a liberal Democrat.
10.9.2005 5:54pm
ANM (mail):
To A Guest Who Enjoys This Site,
I am sorry if I came off as a critic. I consider myself a libertarian; I generally agree with the Cato Institute's views. I admire Barry Goldwater for his genuine conservatism and consider George Bush a fake (There was an editorial somewhere about Bush being the "Manchurian candidate" to delegitimize the conservative movement). Bush talks the talk but rarely walks the walk.

Perhaps I am confusing social conservatism with the utter corruption of the Republican agenda. I read wikipedia's entry on neoconservatism, and now see that neoconservatism and social conservatism are both (at times) inimical to libertarianism and conservatism. In light of neo-conservative views, the "liberal mugged by reality" definition implies an affinity for big government to advance social conservative/"moral" policies. (The bit about the jewish conspiracy theory was quite amusing. As a Jew, I feel quite empowered by my compatriots' supposed vast conspiracies.) The difference may be exemplified by the ideological difference between Scalia and Thomas.

If to be conservative, one must respect the autonomy of the individual, wouldn't a conservative vote for the right to die (when deciding at the state level)? Of course, with individual autonomy comes responsibility. But these two precepts belie much of "conservative" policy. Is regulating the sale of videogames to minors truly a conservative position? Is the Civil Rights Act of 1964 a law worthy of admiration from conservatives (it is in the National Review Online
http://nationalreview.com/comment/evans200510070802.asp)? War on drugs? Disrespect of the constitution (No Child Left Behind, Amendment banning gay marriage)?

Perhaps it is that ruling parties do not have the luxury of adhering to principle. All third-parties can afford to remain pure in principle, as their lack of power warrants no compromises.

Make note: I am not trying to sling mud at conservatism nor saying that democrats are the true protectors of liberty; rather, I believe that conservatism has been twisted. All self-titled conservatives affirm its principles, but seemingly few apply them to policy.
10.9.2005 6:00pm
Bezuhov (mail):
"It's not working. Please try harder."

As I said, this is not the forum for this particular debate. The salient point here is that there exists a constituency which believes that this set of policies beat the alternatives. Harriet Miers appeals to this particular constituency, and is indeed an explempary representative of its values.

This constituency is important because, while the judicial process should not be political, the confirmation process unavoidably is. In the 60's and 70', this constituency allied with the left, allowing that alliance to gain ascendance in our common instituions, especially the media and academia. Though the allegiance of this constiuency has shifted somewhat, that shift is more pronounced in the political, professional, and economic spheres than the media and academic. Given the outsized inflence of the latter upon the relatively less-informed in our society, Bush was constrained to select a member of this constituency to win confirmation.

Should you wish to rectify this situation, I'd recommend following Todd Zywicki's or Roger Ailes' example, and not take out your frustration on a political leader with an uncanny sense of our current political reality.
10.9.2005 7:43pm
Bezuhov (mail):
Apologies for misspellings. Oh, how spellchecker makes fools of us all...
10.9.2005 7:45pm
A Guest Who Enjoys This Site:
ANM -


"Make note: I am not trying to sling mud at conservatism nor saying that democrats are the true protectors of liberty; rather, I believe that conservatism has been twisted. All self-titled conservatives affirm its principles, but seemingly few apply them to policy."


That's why they call it 'politics.' That is also why the judicial branch was originally set apart with an "idealized neutrality." Focus by the judiciary was supposed to emphasize a philosophy "to regulate their decisions by the fundamental laws, rather than by those which are not fundamental..." (Hamilton, Federalist No. 78)

This is precisely the concern with Miers. Without knowing her philosophy through a history of published articles, decisions, or public declaration, what 'assurance' do we have that she has the restraint urged by Hamilton as opposed to, as you say, a prediliction to "affirm its principles" but a reticence or aversion to applying them; preferring to 'make policy' (i.e., "legislate") from the bench based on the prevailing political climate?
10.9.2005 8:29pm
jgshapiro (mail):
Medis:

I am assuming that being a judge counts as a good qualification

The problem with your premise is that you assume that *any* amount of judging is sufficient to qualify you for SCOTUS. (You also ignore the quality of judging, though I concede that this is more subjective to evaluate.) So if Miers were named to the DC Circuit today (recess appointment?) and then named to SCOTUS next September (after another term of O'Connor), would she be qualifed?

That is essentially the case for Clarence Thomas, who, as I recall, served less than one year on the DC Circuit before being named to the Supreme Court. Yes, he was a judge when he was named, but for how long? His experience prior to that, as chair of the EEOC, is not significant enough in prominence or broad enough in scope to qualify him. He was not a prominent law prof (e.g., Douglas, Frankfurter) before being named chair of the EEOC. Yes, he had a Yale law degree, but so what?

I think Thomas is your answer: the most unqualified justice before Miers. Interesting that both Thomas and Miers were diversity picks. In Thomas' case, there were better potential conservative minority nominees (e.g., Garza), but they were passed over. Likewise, there are better available nominees this time who are conservative women (e.g., Owen, Jones, Brown, Glendon, Clement), but for whatever reason, they were not chosen.

Note, I am not saying Thomas has done a bad job: I leave that to you to decide. But, based solely upon pre-nominaton qualifications, he beats out both Butler and Shiras as the most *recently* unqualified.
10.10.2005 3:22am
Medis:
jgshapiro,

I noted that assumption precisely because I realize its weakness and viewed it as a necessary disclosure. I agree that a very short term as a judge is probably not sufficient to count as a good qualification, and perhaps that reasoning would apply to Thomas's brief tenure as a judge (or John Roberts's).

On the other hand, I disagree with the proposition that being head of the EEOC is not a good qualification. It is true that such a position is more limited in scope than, say, being AG (being head of such an agency is certainly as prominent as one can ask for within that scope, however, so I think you are really raising just the one objection). Nonetheless, it is a federal law enforcement position, and I personally think it is useful to have people with some more depth than breadth in federal law. I might note that I would apply the same principles to something like being the head of the SEC.

Still, I acknowledge that reasonable people could disagree on these issues. Indeed, I am probably considerably more generous than average when it comes to what sorts of experiences and accomplishments could qualify one for the Court.

Nonetheless, I think it is obvious that this consideration makes Thomas more qualified than Miers, and of course he did have some time as a judge, even if that time was also insufficient to make him well-qualified.

And that was the question: not who else was potentially underqualified for the Court, but who else was as unqualified as Miers. Thomas was clearly more qualified than Miers, so even if you think Thomas was insufficiently qualified, you have to keep looking back for someone even less qualified than Thomas in order to find another Justice like Miers would be.
10.10.2005 7:27am