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Trouble With Commas: More on Miers' Writing.--

The written response of Harriet Miers to Senate questions does little to comfort those of us concerned about her writing ability (tip to Conglomerate).

(I have been unable to find a copy on the Senate Judiciary Committee's website, relying instead on a pdf posted on NRO. As before, it is possible that there has been some sort of transcription error.)

Consider this passage on page 50 of Miers' questionnaire:

My experience on the City Council helps me understand the interplay between serving on a policy making board and serving as a judge. An example, of this distinction can be seen in a vote of the council to ban flag burning. The Council was free to state its policy position, we were against flag burning. The Supreme Court's role was to determine whether our Constitution allows such a ban. The City Council was anxious to encourage minority and women-owned businesses, but our processes had to conform to equal protection requirements, as well.

My City Council service and working in economic development activities afforded me with special insight into the importance of a stable, respected, and fair judiciary in which the public can have confidence.

Reading this excerpt is depressing. Once again, I urge people to read several of her published pieces, which the University of Michigan has helpfully put online (scroll down to "Articles by Miers").

Everyone makes mistakes in writing (I certainly do) and nobody is perfect. But in reading Miers' writing, I keep looking for a spark. Where is the good stuff? Where are the passages that show a bright, analytical mind — or failing that, a basic competence in placing commas?

UPDATE:

Over at Conglomerate, Christine Hurt read the first paragraph I repeated above and commented:

Were the women and minority-owned businesses burning flags? Did we switch topics? I'm confused.

Yes, everyone makes typos/spelling errors. However, most of us catch them before we hand them to the Senate in our application for one of the most powerful positions in the country, which is the most powerful in the world.

2D UPDATE:

A reader over at Althouse notes a letter that Miers wrote Bush. In particular, read page 14 here. The last sentence on that page is a doozy.

Cato the Elder:
No one should be surprised. This is the quality one should expect when you make nominations based on personal friendship rather than merit.
10.19.2005 3:22pm
The Family:
A little help, please: In his relations with Democrats in the Senate, is more correct to say Bush is "spayed" or "neutered"?
10.19.2005 3:26pm
Nobody (www):
Mr. Lindgren -- Shouldn't you have used "Miers's" instead of "Miers'?"
10.19.2005 3:26pm
Matt Barr (mail) (www):
Not to beat a dead horse, but while I agree with your points here and elsewhere, the problem with the questionnaire isn't so much the Strunk &White stuff. There's this passage:

Beginning during my two years as a Federal district court clerk, I was taught by the judge for whom I clerked, Judge Joe E. Estes, the importance of Federal courts' keeping to their limited role. His first task -- and therefore mine in assisting him -- in every case before him was to examine whether the case was properly in court. Was there a party with standing? Did subject matter jurisdiction exist? Was venue proper? These were all questions -- and all related questions going to whether the court had subject matter jurisdiction -- that he wanted answered before any others. If the answer was "no" to any of them, the case was dismissed promptly. These basic rules of Article III impose a clear responsibility on courts to maintain their limited role.

"Judicial activism" can result from a court's reaching beyond its intended jurisdiction to hear disputes that are not ripe, not brought by a party with standing, not brought in the proper court, or otherwise not properly before the court because of the case's subject matter.


A response to a law school exam question about judicial activism that started this way would get the writer flunked. Spot the problems -- is venue one of the things a court will research on its own "before any other"? If it finds on its own that venue is improper, is the case "dismissed promptly"? Are standing and venue "basic rules of Artitcle III"? Is "judicial activism," as that phrase is used today, what happens when courts adjudicate cases where the litigants don't have standing or where the court lacks jurisdiction? Cases aren't kept long enough for judges to get "active" if there's no standing or jurisdiction; they're "dismissed promptly," as we recall.

This is agonizing.
10.19.2005 3:33pm
Jim Lindgren (mail):
Nobody:

Mr. Lindgren -- Shouldn't you have used "Miers's" instead of "Miers'?"

Both are correct. See Bergen & Cornelia Evans, A Dictionary of Contemporary American Usage 197 ("genitive case. FORMATION.3"). The Evanses say that the extra "s" is usually omitted after a proper name, but they would allow your usage as well.

It depends on house style. As far as I know, the VC has no house style on this. I vary in my usage.

Jim Lindgren
10.19.2005 3:38pm
DaveK (mail):
Maybe post-lunch food coma is depriving my brain of oxygen, but what's wrong with "to equal protection requirements, as well"? My instinct is that that comma is optional.

Am I missing something? This does not detract from the remainder of the rather depressing illiteracy that Miers' questionnaire demonstrates, of course.
10.19.2005 3:38pm
Pithlord (mail) (www):
The content of that passage is objectionable as well. Miers is claiming ("arguing" would be too strong) that elected officials have no obligation to keep within the constitution in their "policy" decisions, but can leave that responsibility solely with the courts.
10.19.2005 3:41pm
Jim Lindgren (mail):
Matt:

Absolutely! I agree: "This is agonizing."
10.19.2005 3:43pm
erp (mail):
"As far as I know, the VC has no house style on this."
10.19.2005 3:44pm
Jim Lindgren (mail):
DaveK:

but what's wrong with "to equal protection requirements, as well"? My instinct is that that comma is optional.


There is quite a broad range of practices in using commas. Some writers do it by feel; some do it logically. There is no logical reason for the comma here, but a case could be made for it on other grounds. It seems quite doubtful to me -- even as a question of feel. I debated whether to highlight it in the post, but I ultimately decided to follow Conglomerate by including it.

Jim Lindgren
10.19.2005 3:52pm
Veggie_Burger (mail):
From my dusty old grammar book: "Punctuate according to your pronunciation." Also since "Miers" is more than one syllable, Miers' is preferable to Miers's. If we were speaking of Gus's writings, then you would be correct. Miers' writing and punctuation is not sterling, as has been demonstrated here and elsewere. However, the grammar and punctuatation errors would be forgivable if there were some evidence to show some deep thinking or originality. Yes, she does appear to be both Bush's crony and a hack.
10.19.2005 3:55pm
Veggie_Burger (mail):
"punctuatation errors" - How did that happen?

I wouldn't qualify for the Supreme Ct. either, but don't tell my dysphonic ego that.
10.19.2005 3:59pm
Jeff R.:
I'm extremely glad you didn't highlight her use of the superior English standard for the serial comma in the last sentence you quoted, by the way. ("stable, respected<b>,</b> and fair")
10.19.2005 4:02pm
arbitraryaardvark (mail) (www):
I don't care about the commas. With the possible exception of the second amendment, commas are rarely determinative of constitutional issues, and I'm less interested in statutory interpretation.
Pithlord has already made my point, and more concisely, so this is just a me too post, but here's how I blogged it.

Wednesday, October 19, 2005
I've been rather strongly pro-Miers, but I'm willing to reconsider.
My experience on the City Council helps me understand the interplay between serving on a policy making board and serving as a judge. An example, of this distinction can be seen in a vote of the council to ban flag burning. The Council was free to state its policy position, we were against flag burning. The Supreme Court's role was to determine whether our Constitution allows such a ban.

She violated her oath of office to uphold the constitution, and doesn't even notice there's a problem. Granted, this puts her in the same class with an overwhelming majority of the senate and house, both on flag burning and many other issues.
For me, being an oathbreaker is potentially disqualifying. When the subject matter of the oath she broke was her promise to uphold the constitution, she cannot be trusted as its guardian. Now, it's certainly possible that members of one branch may not share the same opinion of what is constitutional and what isn't, than another branch. But when that is the case, the reasons for disagreement should be spelled out and carefully argued. "[F]ree to state its policy position" doesn't cut it.
I withdraw my prior expressed support for Miers.
10.19.2005 4:04pm
Shelby (mail):
Eek. I was a copy-editor before law school, so this is painful. How does the flag-burning issue lead in to "The City Council was anxious to encourage minority and women-owned businesses, but our processes had to conform to equal protection requirements, as well."? Are minority and women-owned businesses hurt most by flag-burning?

I have yet to see a single thing to make me think she is more than a moderately bright lawyer gifted at schmoozing and administration. Isn't there a mid-level federal agency she could be shunted off to run?
10.19.2005 4:10pm
BossPup (mail):

My City Council service and working in economic development activities


I am sure I am revealing my ignorance of some basic rule of grammar, but what is the problem with this portion of her statement?
10.19.2005 4:14pm
Veggie_Burger (mail):
"Miers' writing and punctuation is not sterling"

I got the verb conjugation wrong here. To err is human, to forgive divine.
10.19.2005 4:27pm
CharleyCarp (mail):
I recall that a frequently repeated knock of both Sen. Kerry (in 2004) and the Vice President (in 2000) was that they acted as if they thought they were smarter than ordinary people. Gov and then Pres Bush, in contrast, effectively hid his light under a bushel. The questionnaire answer on judicial activism appears to me to be designed to appeal to the people for whom this sort of belief was important (or even credible).

We are reaping what we have sowed.

I expect it to work, by the way. Opposition to Ms. Miers' nomination seems to be much less among non-elite conservatives than among elites, and her plainspoken-ness will serve her well with the former. It'll be interesting to see whether she adopts a similar style for the hearings.
10.19.2005 4:33pm
Master Shake:
BossPup - I'd say it's not technically a grammar error, but rather just very bad style. She should have either said:

"My City Council service and my work in economic development activities . . ."

Or:

"Serving on the City Council and working in economic development activities . . ."
10.19.2005 4:38pm
DJ (mail):
Depressing. Good thing she'll have clerks and secretaries to do the light and heavy lifting.

I, too, [ed: comments okay there?] am concerned about Miers's [ed: I prefer this form] apparent eagerness to punt constitutional questions to the courts. This may represent more of an eagerness to show that she intends as a judge to be a conscientious constitutional adjudicator. I hope at any rate that Kyl or one of the other smart conservatives on the Judiciary Committee asks her what she means here.

Back to her writing: One advantage of having a poor writer on the Court, I suppose, is that she might insist that her opinions are clear, short, and authoritative. The flashes of brilliance we get from Scalia are fun to read, but often sloppy and, in the end, just too long.
10.19.2005 4:41pm
Houston Lawyer:
The problem with her writing is that it appears to be a first draft. Most people compose poorly, but better writers will fix something that didn't come out well the first time. Since I gave up composing with pen and paper years ago, I find I can no compose a thought without the edit functions provided by a modern keyboard. I'm betting that she doesn't type.
10.19.2005 4:41pm
BossPup (mail):
Ok, I see. The use of the gerund didn't seem to be that awkward, but your versions of the phrase do seem to flow more smoothly.


Thanks Shake Zula, the mike ruler....
10.19.2005 4:44pm
TheAbsentMindedOne (www):
I have a different take on some of the same material.

There is humor, for those who can get past the depression.

You might enjoy it, for the alternative view.

The post is:

Harriet Miers - There is humor too.
at:
http://theabsentmindedone.blogspot.com
10.19.2005 4:55pm
TheAbsentMindedOne (www):
On the serious side, what is the aptitude for strict construction, if there is no aptitude for construction.

or

If you cannot write, can you read?
10.19.2005 4:57pm
Witness (mail):
I used to think that Kevan Choset was the most out-of-place and unnecessary contributor to VC. Until now. With so much substance to attack here, why does Jim Lindgren choose instead to nitpick relatively insignificant grammar and style concerns? My guess - he's just not as smart as Eugene and Orin, but he feels he has to say something about this obviously dreadful nomination. Perhaps Instapundit has an opening for a guest-blogger...
10.19.2005 4:58pm
TheAbsentMindedOne (www):
If Harriet is asked:

What is the difference between a will, and a valid will?

What will she say?
----
She said:

My legal experience is broad ranging, representing individuals and corporations in cases that cut across areas of local, state, and Federal law. For example, I have been called to a deathbed to make sure the individual had a valid, enforceable will...
10.19.2005 5:01pm
Jim Lindgren (mail):
BossPup:

You ask about:


My City Council service and working in economic development activities . . .



While some wouldn't consider this an error, others would consider it as an example of nonparallel structure. In any event, Miers' sentence could be improved by using a parallel structure.


As Master Shake wrote:



"My City Council service and my work in economic development activities . . ."


Or [even better]:


"Serving on the City Council and working in economic development activities . . ."

10.19.2005 5:06pm
Victor Davis (mail) (www):
"My experience on the City Council helps me understand the interplay between serving on a policy making board and serving as a judge."

"My City Council service ... afforded me with special insight into the importance of a stable, respected, and fair judiciary ..."

Let me see if I understand this. Her experience on the City Countil continues to help her understand the interplay between policy making boards and judgeships, yet her special insight into the importance of a fair judiciary is relegated exclusively to the past. Ugh.

The problem with her writing is not that she has difficulties with commas or makes typos or makes silly use of gerunds or confuses her verb tenses. The problem is that her sloppy writing reflects a lack of clear thinking and an absence of meaningful thought. The inherent limitations of language already complicate the law; poorly constructed thoughts expressed in ambiguous ways will only exacerbate these tragic complications.

I wonder to what extent her difficulty with language contributed to yesterday's confused incident with Senator Specter concerning Griswold?
10.19.2005 5:09pm
Alan (mail):
If there were any doubts prior to the release of the questionnaire, I think that it establishes that Ms Miers is not qualified to be (i) a supreme court justice, and (ii) a grammar teacher.
10.19.2005 5:10pm
TheAbsentMindedOne (www):
Victor

Indeed.

But, do you know what question she was answering?

Any guesses?
10.19.2005 5:15pm
Victor Davis (mail) (www):
Actually, I wish to retract my first criticism in my last post. I was being overly critical; "afforded" in that context may only refer to when she gained the insight and not meant to specifically limit the time period during which she has held that insight.

Regardless, the remainder of my last comment holds. This is painful.
10.19.2005 5:17pm
TheAbsentMindedOne (www):
It was:

Legal Activities: Describe the most significant legal activities you have pursued, including significant litigation which did not progress to trial or legal matters that did not involve litigation. Describe fully the nature of your participation in these activities. Please list any client(s) or organization(s) for whom you performed lobbying activities and describe the lobbying activities you performed on behalf of such client(s) or organizations(s).
10.19.2005 5:17pm
TheAbsentMindedOne (www):
She had already covered paving,

I dealt with city issues from supporting the police and firemen to paving issues.
10.19.2005 5:20pm
TheAbsentMindedOne (www):
Consider whether clear language would hurt her case. Is confusion her only hope?

Would:

I learned about the role of courts by serving on the city council

be better?

Remember, this is answering about her legal experience, like trials and paving streets.

Clarity hurts.
10.19.2005 5:28pm
TheAbsentMindedOne (www):
No, it was paving issues, not paving streets.
10.19.2005 5:29pm
TL:
I voted 4 W, 2X. &I'm prone to shorthand + grammar mistakes. However, today for the first time, I get the sense that this nomination is going to fall flat. I just get that anti-peaceful easy feeling about this one. All along, I've felt that Miers' confirmation would depend mightily on her Senate Confirmation Hearing-performance. My gut now tells me there is smoke on the water.
10.19.2005 5:33pm
Victor Davis (mail) (www):
TheAbsentMindedOne -- Very good point. She apparently follows the maxim that if you don't have much to say, elaborate anyway. She will have to fight the tendency to wander off-topic if she wishes to avoid being declared a "judicial activist" under her own definition. ;)

Compare the structure of her response to that of John Roberts (warning heavy PDF). He mechanically stuck to the question at hand, giving a matter of fact representation of the activities he had pursued. Unsurprisingly, he did not engage in pretentious declarations of value or attained insight.
10.19.2005 5:34pm
Shelby (mail):
AbsentMinded,

Any guesses as to what are the least significant activities she has pursued?

Witness,

How charming. Miers' (lack of) writing ability is relevant because (a) writing clearly and well is a core part of a Supreme Court justice's job, (b) sloppy writing tends to indicate sloppy thinking, and (c) we have to read the damn stuff.

If Miers ever writes an opinion with the same care and attention she's lavished on this questionnaire (surely she gave it her very best shot, no?) then we will never be able to understand what the ruling is, why it was issued, its scope or anything else important.
10.19.2005 5:36pm
Matt Barr (mail) (www):
One of the wrinkles here is that early on after her nomination we heard how Miers was a devil with a red pen regarding anything that crossed her desk as Staff Secretary, from grammar to usage to margin width. Does this mean that someone else wrote her answers and she for some reason didn't give it the once over, that she was too hurried to give her own material the attention she gave others', or that she did indeed make a lot of red pen edits at the White House, but they didn't necessarily, you know, improve things?
10.19.2005 5:37pm
TheAbsentMindedOne (www):
Matt

Right. That is one reason the topic matters.

I had the impression that some did not like her editing.

I would not like her revising my words.

I prefer my weird usage to hers.
10.19.2005 5:43pm
cfw (mail):
"I wonder to what extent her difficulty with language contributed to yesterday's confused incident with Senator Specter concerning Griswold?" Based on this and the "Warren, I mean Burger" incident, I assumed she had not great speaking talents. From her application, see may also lack average legal writing talents.

If she could be a "designated voter" (sort of like a designated hitter), with no obligation to write opinions, maybe a red stater could support the nomination. But that sort of non-writing USSCT position is, as far as I know, unprecedented.

I am shocked the administration let this float up to the Senate unedited. What law firm did she came from? How did she get to partner level writing like that?
10.19.2005 5:43pm
corngrower:
This is what it comes down to? My attourney cant spell or puctuate. What he can do is law. (thats why I have him on retainer, access). I will put his legal accumen on par with asy SCOTUS justice now sitting.I seem to be missing the point here.

Quick story. My son filled out an application to pump gas at the one station in 30 miles that still pumps gas for customers. The owner looked at the application and said "well I guess I'll hire you because from your hand writing, it is obvious this is all you are able to ever do".

He has earned more than $80,000 in two engineering internships and has two job ofers infront of him and both companies have offered to pay the balance of his tuition if he agrees to a full time job and will committ to the company.

Lesson? We all have our strengths. Sometime they are not commas.
10.19.2005 5:47pm
TheAbsentMindedOne (www):
Shelby and all.

I think my blog is really helpful. I reviewed her Texas cases. She is very proud of her Disney and Cheney cases.

The issues:

Can Disney be sued in Texas?

No.

Is Cheney a Texan?

No.

Those are cases she is proud of. Really proud. Really.

Her specialty is who is not a Texan.
10.19.2005 5:48pm
TheAbsentMindedOne (www):
Corn

What is her strong point?
10.19.2005 5:51pm
Shelby (mail):
corngrower:

You appear to be well-qualified to rule on the unimportance of grammar, spelling and punctuation.
10.19.2005 6:12pm
TheAbsentMindedOne (www):
Corn

The Miers campaign seems to be based on attacking critics. Perhaps there is a basis for her support.

If asked what her strong point is, what would you answer?
10.19.2005 6:17pm
TheAbsentMindedOne (www):
Corn

I have it on good authority that dentists write poorly and that it is hard to find dentists who can write or speak well to teach continuing education.

Science and writing are different.

Law and writing, reading, and word usage are tied together.

Without words, what is law?
10.19.2005 6:22pm
corngrower:
And so? Again I say what is the problem here? I cannot spell or type well. But lacking those attributes I will in fact render any arguement so far mentioned moot.

Anyone gaot a real kwestshon? Come on you are smater than this. Commas this is where the debate is at?.,!
10.19.2005 6:44pm
linusapawling1 (mail):
Charley Carp
While your take on Miers'(here I go blindly into the fray)attempting to appeal to an "ordinary" audience is intersting, I must disagree. Bush, Gore, Kerry, etc. were voted on by the "ordinary" people. The senators participating in her confirmation,regardless of their carefully cultivated Populist images, will not be impressed. And there's that whole lack of cohesion hurdle to get over.
10.19.2005 7:00pm
PD Shaw (mail):
Didn't anybody at the White House review this document before sending it to Congress? The assumption here is that this is unvarnished Miers and a window into her real composition skills. I think this is a window into a White House in complete disarray.
10.19.2005 7:02pm
TheAbsentMindedOne (www):
PD

Of course they did!

Did they not?

Yikes!

How could she do this? How could they?

It is a marvel. It inspires awe.

But, here is a thought. Who would want to have fingerprints on it? Who was out sick that day? Did the smart ones run for the hills?
10.19.2005 7:08pm
CharleyCarp (mail):
Linus, I'm guessing that the folks at the WH are confident that while Senators may not be impressed with Ms. Miers, they will be impressed by the support for her among 'ordinary folks' Xtian conservatives. And I think we can count of Ms. Miers giving well vetted common sense answers, in a non-elitist way. There's plenty of support for her out there, and it will only grow.

It's a game of Chicken. Does anyone really believe that a non-trivial number of Republican Senators will vote no, even if it means seriously wounding the President? More to the point, is there anyone in the WH who believes this? I suspect that the WH expects Senators to blink, and while WH strategic thinking hasn't looked all that good on most policy questions, I'm not sure anyone ever went broke underestimating the discipline and intellectual integrity of any Senate majority. That's kind of convoluted: I think a rational person could expect Senators to blink, all the more so if grassroots support can be worked up.
10.19.2005 7:27pm
A Guest Who Enjoys This Site:
corn: I think the 'debate' in this case is focused primarily on having a little fun at Ms. Miers' expense. However, their point is a valid one. Your lawyer may be able to reason quite well as a result of superior, legal knowledge. However, he is not required to write legal decisions that must be understandable to every lawyer, judge, politician, teacher, et al. in the country. If confirmed, Miers would be. Either that, or she would be solely a concurring vote on any majority or dissenting opinion.


As I posted on the other thread related to the Miers Questionnaire, her response reads like an undergraduate attempt at the "5 paragraph essay;" then, realizing she had another 45 minutes, she figured she'd better say 'more.' Either way, as I have advised in the past, if you can say succinctly, in less than the time allotted, then get it, get it said, and get it turned in. If, however, your style tends toward loquacity (as mine certainly does), then you still need to make sure that you get it said; e.g., make your point.

This is the problem I see with Miers' responses. I have a lot of difficulty discerning precisely what it is she is trying to say. I can infer many things. But, when I cannot definitively point it out in the text, I become somewhat incredulous regarding whether you actually had a point to make or an answer to provide.

The analogy I often point to relates to football. A famous coach once said: "If you've got talented players, you do not need a complicated offensive scheme. Instead, you can go with a selection of basic plays and rely on the players' inherent talent to get the job done. But, if you've got a roster of competent, but mostly untalented players, you will often find yourself relying on a more complex offensive arrangement. You can win either way, but it certainly takes more effort if your scheme is, of necessity, complex. And, there comes a point of uselessness when you realize that even more complexity is required when talent is almost absent. In other words, if you ain't got talent, how are you expected to work your way through complexity?"

I think there might be a relevant point here in relation to Miers and the role of the Supreme Court. I leave it to you to see if you can find it.
10.19.2005 7:29pm
TheAbsentMindedOne (www):
CC

Does your analysis apply to any other nominee?

I think it largely does.
10.19.2005 7:39pm
CharleyCarp (mail):
TAMO:

Like your blog. I think the WH will always believe it can prevail in the Senate, yes, no matter who the nominee. Within the range of nominees they could consider, of course. But exactly how the approach is managed will always depend to some degree on the nominee's profile. HM has to be sold as an anti-elitist at this point, since -- as you show -- the experienced trial lawyer with real constitutional exposure story is a bit shallower than advertised.

BTW, I may have the facts wrong, but I think she may have omitted early appeals she worked on because her colleague argued them. The appellate question is phrased (IIRC) a little differently than the trial question, and would leave out cases where she wrote the brief, but didn't stand at the podium.

I'm a lot less concerned than you are about the dearth of trial-to-verdict experience. Defense practice at firms of her league often involves avoiding trial whenever possible, and I think the technical gifts we want in a justice are maybe better shown by a successful summary judgment motion, than by losing a jury trial. I'm not saying there hasn't been puffery, but that I think the question of trials to verdict is less important for an appellate judge than for a district judge.
10.19.2005 11:17pm
Publius Rex (mail) (www):
Someone close to her ought to drop a copy of "Eats, Shoots &Leaves" in her briefcase.

Pathetic.
10.19.2005 11:52pm
Larry Faria (mail):
I agree with Houston Lawyer: it's a first draft. Maybe she meant to rewrite it but never got around to it, and she just grabbed it without looking at it when it was time to send it to the Senate. That wouldn't say much about her attention to detail. No wonder the Senate requested clarification. The questionnaire may have raised the stakes in the hearings to home run or bust.
10.20.2005 12:16am
A Guest Who Enjoys This Site:
Upon reflection, Houston Lawyer may be correct in it being a draft. One of the 'controversies' that IMMEDIATELY emerged in the media was that her questionnaire was NOT signed. It followed that the White House had to assure the committee that this was, in fact, the proper document.

Hopefully, if a 'mistake' was made, we see evidence of more substance in her replies; which seems to be what the committee wants.

Hey? The Senate Judiciary Committee and I actually agree, in a general sense, on this issue. Should I be worried? Me agreeing with politicians?

See what damage this nomination has caused?!
10.20.2005 3:46am
Matthew Goggins (mail) (www):
Jim Lindgren et alia,

I took advantage of the link to Harriet Miers' questionnaire and checked it out for myself.

It's true that her response explaining the constitutional relevance of her tenure on the Dallas City Council gets a little clunky in one paragraph. But my reaction was, and is, so what?

If this is the best evidence one can post to show that Harriet Miers is guilty of not writing and thinking clearly, then I'd have to say that Ms. Miers must be a pretty good writer and thinker. There is no reason why anyone should be disturbed by a few commas out of place in this questionnaire, or by the other minor style gaffes that have been mentioned in this comment thread.

Harriet Miers is a smart, tough lawyer with excellent credentials. She has a long and distinguished career in both the private and public sectors. Conducting "gotcha" proofreading of her 57-page questionnaire is misguided and petty. Please come up with substantive criticisms of Ms. Miers' nomination, and leave the silly stuff to less capable bloggers.
10.20.2005 4:45am
CharleyCarp (mail):
Harriet Miers is a smart, tough lawyer with excellent credentials. She has a long and distinguished career in both the private and public sectors.

This is a faith-based contention, and you know it. Unless you know her. The only word here that is even close to verifiable on the public record is "long."
10.20.2005 8:30am
corngrower:
Guest

My lawyer dont write. My lawyer hires an office person that can write. If anyone here belives that SCOTUS justices write their own opionins.,..,?! Well Good luck on meeting up with the tooth fairy.
10.20.2005 9:08am
Matthew Goggins (mail) (www):
CharleyCarp,

"Harriet Miers is a smart, tough lawyer with excellent credentials. She has a long and distinguished career in both the private and public sectors."

This is a faith-based contention, and you know it.

It's not faith-based at all.

I have a relative who is a corporate lawyer, so I am quite familiar with the intellectual and other demands placed on someone, like Harriet Miers, who serves as co-chief executive of a major law firm. That is not a job for a legal mediocrity or lightweight.

Almost all the criticism of Harriet Miers seems to be coming from self-appointed presidential advisors who wouldn't last more than one day in any of the jobs Ms. Miers has very ably filled for the past fifteen years. I'm sure President Bush has lost a lot of respect for anyone who makes the argument that Ms. Miers is lacking in the smarts or credentials department (as opposed to the lack-of-a-paper trail argument).
10.20.2005 10:38am
Been There, Done That:
Goggins,

You have a relative who is a corporate lawyer.

That's great.

I and many people here have worked in some of these vaunted law firms. TRUST US, she is not considered very accomplished within that realm.

Forget all the judges, professors, politicians and other species. If the goal is to nominate an accomplished, distinguished, etc. "corporate lawyer," Miers would still be a horrific joke.
10.20.2005 12:01pm
Matthew Goggins (mail) (www):
Been There, Done That,

I am perfectly willing to TRUST YOU to the extent that I can verify your claims.

To wit, on what basis are you and others declining to consider Ms. Miers a very accomplished lawyer? If you can explain that, then I am willing to trust your analysis.
10.20.2005 12:20pm
Been There, Done That:
Goggins

Doesn't work like that.

There is no presumption that Miers or anyone else is qualified.

She, like any other nominee, carries the burden of proof that she IS qualified.

Miers' accomplishments are not very impressive. They're just not. Sorry. Lawyers and other people knowledgable about the legal profession look at her resume, and don't see anything worthwhile there.

In the "reality based community," Miers is not considered very accomplished, even if she is as swell as your relative.
10.20.2005 12:50pm
Matthew Goggins (mail) (www):
Been There, Done That,

William Dyer (who has the blog-o-nym "Beldar") is an accomplished lawyer from Texas who is familiar with Harriet Miers' resume and many of her cases.

Mr. Dyer disagrees in the strongest possible terms with your characterization of Ms. Miers and her accomplishments. He has temporarily converted his weblog, BeldarBlog, into a one-man outpost dedicated to the defense of Ms. Miers' reputation and nomination.

If you have the time and the inclination, I recommend just going to his website and scrolling down the posts for the past three weeks. You will learn a lot about Harriet Miers that will likely surprise you.

For your convenience, I have highlighted three of Dyer's posts that are particularly informative:

A comparison of Harriet Miers to new Chief Justice John Roberts

"A Westlaw romp through Harriet Miers' record", where Mr. Dyer examines various cases that Ms. Miers has litigated

"Correcting Rich Lowry's "pro-Bush legal type" source on Harriet Miers' credentials", where Mr. Dyer corrects some urban myths about Ms. Miers that gained significant traction.
10.20.2005 1:58pm
Shelby (mail):
As an ex-big-firm-corporate-lawyer (though never a partner) I have some insight into that part of Miers' background. That she rose to managing partner of a decent, sizeable firm indicates she (1) is at least a competent lawyer, (2) schmoozes well, (3) works very hard, or at least long hours, and (4) is probably a good administrator. It does NOT mean she was anywhere near the best lawyer in the firm -- in fact, probably the opposite, as the top lawyers will be kept busy lawyering rather than managing.

I've read over at least a substantial number of Beldar's posts, and I'm unpersuaded. She worked on a variety of cases involving federal law, but all seem to have been resolved on procedural grounds, which is quite basic. You need a good grasp of it for such litigation, but mastering it means very little about one's development as a lawyer.

Since leaving her firm, Miers has been more an administrator than a lawyer, though it's hard to know how much substantive legal advising she's doing behind the scenes. Her writing, both while at the firm and since, is below the level I mastered as a high-school sophomore.

Miers is well-qualified for many positions, far more qualified than even most senior attorneys. She'd be a reasonable pick to head a mid-sized federal agency that deals extensively with legal issues, such as the EEOC. She is NOT, on paper, qualified to be a Supreme Court justice.
10.20.2005 2:22pm
Been There, Done That:
Goggins,

I've read Beldar's stuff, and it is ridiculous.

It's also quite tough to get through his tone. Like his friend Harriet, he's not a very persuasive writer.

But if you're the type of person persuaded by this kind of reasoning and hyperbole --

But it's no big deal, probably. I mean, look at the client's name. "Micro." Like little, tiny. And "soft." So it couldn't really have been a big, hard case, could it?

-- then it isn't surprising that you're the type of person to whom this "worship Bush" nomination appeals.

Just to take this absurd point: Microsoft, like alot of large corporations, is involved in alot of trivial or mundane litigation, which they tend to win. And if the argument is that all lawyers who have represented Microsoft are, by virtue of that representation, qualified for the Supreme Court, then Miers really isn't in very distinguished company. There are many thousands of such lawyers.

When you cut through Beldar's unprofessional vitriol, you're left with some very unimpressive work.

Sorry.
10.20.2005 2:27pm
Matthew Goggins (mail) (www):
Been There, Done That,

"Unprofessional vitriol"? Since when is peppering a blog post with witty sarcasm considered vitriol?

If you dismiss Dyer's points with charges of unprofessionalism and hyperbole, you are certainly entitled to your opinion. But I'm still waiting for some substantive reasons to dismiss Ms. Miers' accomplishments and credentials. Care to share, sir?
10.20.2005 2:45pm
Been There, Done That:
Suppose Barbara and Jenna were all stars on their high school softball team.

Daddy buys the Texas Rangers, and wants to put them on the field. Says they're the best available.

Care to share why we should dismiss their accomplishments?
10.20.2005 2:49pm
Matthew Goggins (mail) (www):
Shelby,

Thanks for the thoughtful response.

I haven't been impressed with her writing either. But I probably wouldn't be impressed with President Bush's writing either. I don't think that disqualifies him from being president.

Ms. Miers' writing seems to be a mushy combination of diplo-speak and bureacratize that is typical of many powerful executives who prefer to be guarded and non-committal. I don't see this as evidence of intellectual weakness, although it is not evidence of intellectual strength either.

Is it important for an Associate Justice of the U.S. Supreme Court to be a very strong writer? I think so, but it is not the top priority by any means. Demeanor, work-ethic, judicial philosophy, and trustworthiness are much more important in my opinion.

By the way, I've read quite a few Supreme Court decisions over the years, and Ms. Miers writes better than a couple of the jurists who are currently serving on the high court.
10.20.2005 2:58pm
Matthew Goggins (mail) (www):
Been There, Done That,

Apples and oranges. I'm still waiting!
10.20.2005 3:01pm
magoo (mail):
Someone, send, this, gal, a, copy, of, Strunk, and, White, pronto.
10.20.2005 3:28pm
Been There, Done That:
Why is it apples and oranges?

I assert Jenna and Barbara may be well qualified to play professional baseball at the major league level if they had good softball experience.

Now I put the burden on you to disprove my conclusory assertion.

Miers is the same thing. She has an unbelievably mundane record as an attorney. All you can do is parrot other people's assertions that she is a superstar. She's not, and no lawyer who is not on Bush's payroll or otherwise a hack apologist for the administration would contend otherwise.

Until you can create, in your own words, based on your own qualifications to issue an opinion (get a law degree and spend some time working in the profession), a logical argument for her qualifications, it is pointless to continue this discussion with you.
10.20.2005 3:38pm
Shelby (mail):
Matthew Goggins,

A SCOTUS justice does two things: think deeply about difficult legal issues to reach the proper conclusion, and express the chain of legal logic (as applied to the case) in a clear and persuasive manner. The first is the means of reaching a vote on the case; the second is how the world learns what the court has done.

Essentially every legal decision depends on precedent: what relevant cases have been decided previously, what rules can we derive from those decisions, and how do we apply those rules to the facts of the present situation. Poorly written opinions make it much more difficult and contentious to ascertain and apply those rules.

This has little (though still some) bearing on the resolution of particular cases that come before the Supreme Court. It has immense implications for the precedential value of those decisions. If lower courts can't tell just how the Court reached its conclusions, or even what those conclusions are, they cannot consistently or accurately apply those conclusions to new cases.

Does that clear things up?
10.20.2005 4:08pm
Matthew Goggins (mail) (www):
Been There, Down That,

"Until you can create, in your own words, based on your own qualifications to issue an opinion (get a law degree and spend some time working in the profession), a logical argument for her qualifications, it is pointless to continue this discussion with you."

You seem to be saying that only a lawyer can possibly handle the difficult task of weighing Ms. Miers' qualifications. Of course, when I produce a lawyer who is eager to defend Ms. Miers, that doesn't count, because I am no longer using "[my] own words". Whatever.

I never said Harriet Miers was a superstar. I said she was well qualified to be an Associate Justice due to her distinguished career and broad experience.

As a matter of historical fact, her qualifications are just as strong as other nominees to the Supreme Court. I have even provided corroborating testimony from BeldarBlog for those who are unfamiliar with Texas law firms as to her general standing in the legal community.

If you are so confident that Ms. Miers is mediocre, then please cite your reasons or at least provide a reference to someone who does.
10.20.2005 4:29pm
Matthew Goggins (mail) (www):
Shelby,

Does that clear things up?

I didn't think that my disagreeing with you meant that one of us is confused. I think we're both thinking clearly about Harriet Miers, but are using materially different criteria.

You express concern that Ms. Miers' lack of a brilliant writing persona will translate into poorly rendered decisions that will cause confusion up and down the hierarchy of courts. It seems to me that you are making some assumptions, however, that are not entirely justified.

Ms. Miers is clearly capable of thinking clearly and expressing herself well. You conceded this point when you stipulated that she is a competent lawyer. Yet you express reservations about "poorly written opinions" -- why would a successful litigator prompt concerns on your part about the quality of her written opinions?

Are you basing your complaint on actual briefs she has filed in court, or on the many op-ed's and policy statements Ms. Miers issued as an officer the Texas State Bar Association?

It seems to me that the relevant pool of writing would be her briefs. Since they were clear enough to persuade various judges in Texas to rule in her clients' favor, why would her writing skills have degraded during her tenure as counsel to Bush? You've left something out of the equation here that doesn't add up, and I can't follow your reasoning to your conclusions until I see what's missing.

Can you point to specific briefs from Ms. Miers that indicate her judicial opinions would be less than clear?
10.20.2005 4:51pm
Been There, Done That:
Goggins,

Since you are not a lawyer and know nothing about the law, you are not qualified to get into an argument of whether someone has a "distinguished career and broad experience." What do you know about it? That your relative is a lawyer, and Beldar says so.

I am not a medical doctor. When I need a medical doctor, I ask other medical doctors their opinions of their colleagues, since they have a capacity to judge the quality of their peers. If Doctor A tells me, "hey, Doctor B is very pedestrian, he's nothing special," I'm not going to debate the merits of Doctor B's curriculum vitae, and talk about how Doctor B's research and articles are of the highest level.

I may, in the end, retain Dr. B anyway, or discount Dr. A's opinion for some other reason. But that's different than getting into a medical debate for which I am not qualified.

You, sir, are trying to debate the merit of an attorney's career (non)achievments with serious attorneys who know WTF they are talking about. That's the difference.
10.20.2005 4:55pm
Matthew Goggins (mail) (www):
Been There, Done That,

You, sir, are trying to debate the merit of an attorney's career (non)achievments with serious attorneys who know WTF they are talking about. That's the difference.

If you know what you are talking about, then why won't you tell me what you know? I know your conclusion — Ms. Miers is unqualified — but what do you know about Ms. Miers and about the law that leads you to reach that conclusion?

If you refuse to tell me, then I how no basis to evaluate your conclusion, even if I agreed with your conclusion!

It's really not complicated: why do you think Ms. Miers is unqualified or not distinguished? I'm listening to you, so you don't need to get my attention, just tell me what you know.
10.20.2005 5:20pm
Matthew Goggins (mail) (www):
Oops, that should be "then I have no basis to evaluate" in the penultimate paragraph above. Sorry.
10.20.2005 5:22pm
Matthew Goggins (mail) (www):
Oh, I should have mentioned that I once saw a doctor who came highly recommended by another doctor but who turned out to have been something of a turkey.
10.20.2005 5:26pm
Shelby (mail):
Mr. Goggins,

One can be a successful attorney without good writing skills. For example, an advisor or a negotiator may work largely through discussion, including settling cases. This appears to be largely how Miers operates, though it's hard to tell as so little of her own writing is now public.

There is no reason to think that briefs with her signature on them are largely her own work. At a large firm, these are almost always drafted and edited by associates, and reveiwed by junior partners. A senior partner might do a last-minute review, but their signature does not reflect a substantive role in drafting, merely in oversight of the drafters. Any lawyer with large-firm experience can tell you the same.

If Miers had other stellar qualifications, I would assign less weight to this point. But she doesn't, not for this job. She appears to be a competent administrator, but has shown nothing to make me think she belongs on any appellate court, given the nature of an appellate judge's work.

If she turns out to have other written material, drafted by herself, I'd love to see it as well. For that matter, if she wants to announce that she wrote all the motions ever filed under her name, I'd be happy to read (some of) them. But until then, given how law firms operate, there is no point.
10.20.2005 5:31pm
Been There, Done That:
She hasn't written anything important.

She hasn't done very important, challenging, or remotely interesting work.

Her writing skills are apparently sub standard.

She hasn't accomplished anything noteworthy in her career.

That about sums it up, on a non-ideological basis.

And any reasonable lawyer knows this.

Any nominee, for any position, any job applicant, has the burden of proving their qualifications. Miers cannot do so.

Nobody has to disprove her qualifications. She has to prove she is qualified, not the other way around.
10.20.2005 5:38pm
Matthew Goggins (mail) (www):
Shelby,

You've given me another thoughtful and responsive reply. Now I have some points to chew on and explore further.

Thanks for furthering the debate. If I change my mind about Ms. Miers I'll let you know!
10.20.2005 5:44pm
Matthew Goggins (mail) (www):
Been There, Done That,

Nobody has to disprove her qualifications. She has to prove she is qualified, not the other way around.

Well, saying she is unqualified is not nearly as persuasive as marshalling evidence as to why she is unqualified.

It seems a big part of your problem with Ms. Miers is that you don't trust President Bush's evaluation of her capabilities. As I said before, you have every right to hold your opinions, but you're not about to persuade me with unsupported assertions. For example, claiming she has done nothing "important, challenging, or remotely interesting" and has accomplished nothing noteworthy is not just unsupported, but appears to be merely your tendentious opinion.

Hopefully, things will become a lot clearer one way or the other once Ms. Miers testifies before the Judiciary Committee. If you ever get around to justifying your assertions, though, please let me know.
10.20.2005 5:57pm
corngrower:
Seems we have the same argument still going on.
tastes great.......Less filling

Is Meirs qualified? Yes. Read the constitution.

But she has done nothing of substance and uses to many commas.

Define 'Substance'. you can, I can. But they could almost be opposite.

My brother did not have a college education. (he cant puctuate either), Yet he has Improved every single company he has managed, and the last two generated profits exceeding $5 million a year. So you might say he he is not qualified to be a CEO no degree in Business. I might say "gee no degree but he knows how to run a company.
10.21.2005 11:51am
Temujin (mail):
I did not go to a top 10 law school (although a better one than SMU), but among my classmates with whose writing I am familiar, every single one writes better than Miers (at least to the extent that what we have seen from her is representative) both as a matter of substance and as a matter of style. She must be an absolute standout in the courtroom to have advanced that far in her legal career.
10.21.2005 1:18pm