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"Cut Through the B.S. And Provide A Framework":
A commenter to an earlier post on the Miers nomination makes the following suggestion:
  It is very sad to see the Conspirators become overwhelmed with repeating and highlighting speculation and opinion, a la talking heads on cable news, as this Miers nomination has gone forward. None of the complaints over the past week or so amount to anything of substance, just people picking through evidence looking to highlight the story line of the day. * * * Time for someone here to cut through the B.S. and provide a framework to think about this that isn't completely inane and emotive.
  The difficulty, I think, is that there isn't much framework to a Senate confirmation other than how the 100 Senators will choose to vote. And we know so little about Miers — and what the Senators think of Miers — that there really isn't much to chew on except the story line of the day. Anyway, I apologize if I have bored readers with too many Miers posts; I think it's a fascinating and extremely important topic, but I realize others may be bored with it.
Cato the Elder:
Is this the new party line? "Your criticisms are inane; they do not amount to substance." Give me a break. Perhaps the so-called lack of substance stems from the fact that we have been given nothing of substance in Miers' defense. The critics can only work with what the White House gives them. Too bad the White House has only given them "you're sexist" and "she's a good bowler."
10.21.2005 1:22am
Justin Kee (mail):
Suppose the pertinent question is: Is Harriet Meirs qualified to be a Supreme Court judge?

That depends on your definition of qualified.

If she believes that Roe v. Wade should be overruled, and would over-rule the decision, then she is qualified in the eyes of some.

If she believes in the absolute deference of the judicial branch to the legislative branch, to the executive branch, then she is qualified in the eyes of some.

Does her current subscription to the favored and popular tone of religious dogma qualify her as a nominative candidate for the Court?

From "The Reverend Daniel Shute and Colonel William Jones on Religious Tests and Christian Belief"

"Unprincipled and dishonest men will not will not hesitate to subscribe to any thing, that may open the door for their advancement, and put them into a situation the better to execute their base and inquitous designs. Honest men alone. therefore, however well qualified to server the publick, would be excluded by it, and their country be drperived of the benefits of their abilities."

Res ipsa loquitur, in the matter of the nomination, I believe applies in this instance.
10.21.2005 1:35am
Noah Snyder (mail):
I actually think the frequent Miers commentary is a nice break from pondering questions like why straight married couples adopting doesn't undercut the relationship between marriage and procreation, but gay married couples adopting destroys that relationship.

Isn't legal dorkery what we all come here for anyway. No need to apologize Prof. Kerr!
10.21.2005 1:49am
Crane (mail):
It is very sad to see the Conspirators become overwhelmed with repeating and highlighting speculation and opinion...

... especially when we've also got Maggie Gallagher going on and on about the miracle of procreation without ever providing evidence for her claim that legalizing homosexual marriage will lead to the Fall of Western Civilization.
10.21.2005 1:50am
Perseus (mail):
The nomination of a Supreme Court justice is indeed an important topic (even if my apathetic undergraduate students think otherwise), especially because it's such an infrequent event, and I appreciate Prof. Kerr's posts for reducing my search costs on the topic and for his commentary.
10.21.2005 1:56am
Cornellian (mail):
I'm not bored at all by discussion of the Miers nomination.
10.21.2005 2:17am
The Family:
Keep up the good work, Orin. This SCOTUS nomination is a proselyzing event for those who believe in the Founders' radical ideas, and have fought over so many decades to defend their republican experiment in limiting government via a Constitution of enumerated powers.

The continuing discussion displays the best of elite thought in the conservative and libertarian coalition. The intramural battle highlights the principles that are so motivating to those who approach government and politics from an intellectual angle, and, more importantly, highlights how important principles and intellect are to the "conservative" movement.

This fight over Miers is a splendid showcase for opening many eyes and ears that hear only that conservatives are clones that parrot some central leader's marching orders. We think many intelligent people who have too long lived in leftist echo chambers have been surprised by conservative/libertarian reaction to this fiasco, and any who still have open minds may become engaged and have gained respect for the ideas discussed here and elsewhere in the blogosphere.

We have been avid libertarians for decades but have never been much interested until now in the lawyer's perspective, typically engaged instead in the economics discussions. Volokh.com has become a much more frequently visited site, however. Thanks much.
10.21.2005 2:37am
Daddy:
Having just read "Charlie Brown and the Great Pumpkin" to my second grader, I think we can successfully "cut through the B.S." and use this fable as a useful "framework". George Bush is Linus, who every once in a while quotes a Bible verse, but now swears we all must trust him to sit in a pumpkin patch on Halloween night, and if we're sincere, then Harriet Miers (aka the Great Pumpkin), will rise from this patch and give us good kids who believe all the candy and toys, (Roe v Wade) we can imagine. Hugh Hewitt, Dobson, and Beldar are the Sally's joining Linus in the pumpkin patch, awkwardly trying to stifle what they know is nutty, yet sorta' believing nevertheless. Judge Bork, Anne Coulter, George Will, Krauthammer and the NRO gang, are the grumpy Lucy's, realizing the naive Pumpkin Patcher's are squandering this momentous and longed for opportunity of Conservative Trick or Treating, so now their joy is hollow, having to run around ringing doorbells and embarassingly saying, "Could you please also give me an apple for my idiot brother out there in the pumpkin patch". And I suppose the great bunch of us unwashed neo-publi-conserva-whatever the hell we are's, are the Charlie Browns, who wake up next morning to discover our night of Trick or Treating has brought us nothing but another bag full of rocks. Did I mention this leaves Snoopy out there all on his lonesome to wage foreign Military Operations?
10.21.2005 3:05am
A Guest Who Enjoys This Site:
Although I like "Daddy's" Charlie Brown parody, I think one of the hosts of a morning cable news program probably summed it up nicely the other morning.

There are revolving hosts. There were 3 that morning. The middle individual said she was just tired of all this coverage of Miers. One of the other hosts turned to her and said, as close as I can recall...


It may be boring to us as journalists. But, to people in or interested in the legal profession, this is their Super Bowl.


So, which Super Bowl would YOU equate the Miers nomination to?
10.21.2005 3:22am
Perseus (mail):
I suspect many neo/paleo/libertarian conservatives feel like Charlie Brown and that Bush's nomination of Miers is like Lucy pulling away the football at the last second for the umpteenth time. AARGH!
10.21.2005 3:47am
Paul N (mail):
Orin, I believe your Miers posts are more influential than you realize. I think they're not only interesting, but important as well.
10.21.2005 3:49am
lucia (mail) (www):
I adhere to the following policy vis-a-vis comments: If I find the article uninteresting, and unworthy of discussion, I don't even bother to read the article. I don't click on the comments, link and I certainly don't post my own comment.

I suspect many people follow this policy. The Miers posts are getting numerous comments. So, I can only conclude that many site visitors find the topic interesting.

Why the previous commenter bother to read and comment on a topic they find uninteresting is a mystery to me.
10.21.2005 7:59am
snark:
Re the Miers and SSM chains lately:

Obviously, the purpose of the USSC is procreation. Thus, Miers and Souter are not qualified.

Next question?
10.21.2005 8:52am
Jeremy (mail) (www):
You have not bored me in the least with your Miers posts, and I hope you continue to post on the topic.

I think the Miers nomination is, by far, the most important issue facing the United States at the moment.
10.21.2005 9:12am
DK:
No, keep up the miers posts! we need something to keep us reading past all the marriage posts.
10.21.2005 9:22am
BossPup (mail):
Here, here!! The marriage debate seemed like an ok concept, but it just spiraled out of control. On the other hand, the Miers posts are interesting, timely, and actually matter. Keep them coming.
10.21.2005 10:10am
Mr. Boredom:
Y'know, it may not be unified, but at least its not a scatter-brained attempt to enforce your prejudices through law. I'm not referring to any exceptionally wordy threads this week in particular.
10.21.2005 10:23am
David Maquera (mail) (www):
Since the Miers nomination is "anything but substance," there exists nothing substantive to discuss about the Miers nomination.
10.21.2005 10:27am
Michael B (mail):
Some posts have been more to point and more focused than others, but this has been a thoughtful and fruitful discussion at VC - and much appreciated. This is a nominee for a life-tenured SCOTUS justice position, not deputy sheriff of Mayberry who will be up for election in another year or two. No one needs to apologize for the fact that some posts and comments are more fruitful and probative than others.

The phrase "physician, heal thyself" comes to mind as well.
10.21.2005 10:29am
Public_Defender:
I don't go to baseball blogs and complain that they are over-analyzing the World Series. Likewise, people shouldn't come to a law blog and complain that there is too much talk about a U.S. Supreme Court nomination.
10.21.2005 10:38am
Victor Davis (mail) (www):
Please, continue to post. As always, of course, make them as factually informative and incisive as possible.

I do somewhat disagree about the lack of potential material. The details to flesh out her relevant experiences are out there somewhere (if just in a notebook of the Dallas City Council recorder's office); it's just a matter of finding it and putting it all together.

The lack of quantity should only lead to greater precision. I think the commenter Orin quotes is mainly responding to the fact that precision hasn't successfully been achieved -- yet.

On this score, however, I fault Miers. For just one example, she was asked to describe in detail constitutional questions she has addressed. Instead of detail, we got vague references such as "when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause." "The council" is not synonymous with Harriet Miers. That sentence not only uses extremely confusing language with respect to what the equal protection clause does or does not do, it also is non-responsive to the question that was asked: what issues did SHE deal with, what position did SHE take, etc. The only excuses that come to mind are willful obfuscation and insufficient intellectual competence. Neither of these excuses gives me any solace whatsoever.

This process is broken. Informed, intelligent analysis is the only tool left to either keep pressure on the politicians or discover salient facts that will allow us to reverse our perceptions.
10.21.2005 11:14am
Aultimer:
Keep up the posts. How about some speculation about the harm that Miers, if unqualified as charged, would do on the court? Or maybe comparing and contrasting the court with Miers v. others (Luttig, Estrada, Posner, etc.)?
10.21.2005 11:21am
Rick:
Just to follow up with Victor's post, she got the constitutional issue wrong which, in my opinion, is pretty important. This is the first time she's ever written something on constitutional issues, in a response to the US Senate, and she got it wrong. I don't understand why this hasn't been front-page news.
10.21.2005 11:22am
Adam (mail) (www):
This is like hoping for a great Super Bowl and getting Stan Humphries in at quarterback.
10.21.2005 11:43am
jACKJOHN (mail):
Here is a complaint of substance. The defenders of Miers' nomination say that Miers is qualified. Essentially, they claim that she is a complex litigator with excellent case management skills, but not a constitutional scholar of the first order. The former is more relevant to adjudication, they say. Fine. Let us take the premise seriously. In that case, then, it seems the Senate should ask her questions related to complex litigation and case management, not obscure constitutional questions.

1. What does she think of Lon L. Fuller's "The Forsm and Limits of Adjudication"? Has she read it?
2. Does she have an understanding of comparative procedural systems in practice? For instance, what does she think of Mary Ann Glendon's analysis of foreign legal systems in "Comparative Legal Traditions"?
3. What does she think of using preclusion rules as an alternative way to overcome joinder complexity? In particular, what does she think of Justice Rehnquist's dissent in Parklane Hoisery Co. v. Shore?
4. How does the Due Process Clause figure in precluding persons that did not participate in a prior case? In particular, what is her opinion of Richards v. Jefferson County, Alabama, a SCOTUS case?
5. What does she think of preclusion after notice and opportunity to intervene, particularly in the context of reverse discrimination suits where consent decrees have already been entered? For example, Martin v. Wilks, another SCOTUS case? What is her opinion about Congress' response to this case, with 42 U.S.C. sec. 2000e-2(n)?
6. What is her opinion of the Eleventh Amendment jurisprudence we have thus far? Does the text govern? How do we reconcile the text of the Eleventh Amendment and the subsequent jurisprudence? What is her opinion of the diverging approaches of doing so?
7. Is she concerned about the limitations on aggregation imposed by territorial jurisdiction? How, in her opinion, does this play into asbestos litigation? Does she have an opinion of In re Asbestos Litigation?
8. Does Strawbridge v. Curtiss announce a constitutional rule, or is the diversity required for diversity jurisdiction by the constitution broader or narrower than what is promulgated by that case?
9. When is it appropriate for judges to use the All Writs Act? Was the Terri Schiavo case an example?
10. Is compulsory consolidation in bakruptcy cases fair to litigants? Why or why not? Do litigants have a constitutional right to be masters of their own complaints?
11. What are relevant policy concerns of class actions? Discuss Hansberry v. Lee and In the Matter of Rhone-Poulenc Rorer Inc. In particular, is Judge Posner wrong? Why or why not?
12. Are there constitutional or jurisdictional limits on mandatory class actions? If they exist, how do they play into the case of In re Federal Skywalk Class? Was the outcome of that case justified? Why or why not? What conceptual framework would you use to decide that case today?
13. What is federal common law? How is it different from general common law in federal courts? Discuss In re Agent Orange.
14. You are on record as opposing judicial activism. Which judge is more activist in your view: Jack B. Weinstein or Edward Becker?
15. What is the proper use of a court's remedial powers? Discuss Missouri v. Jenkins. In addition, what is the rightful position, and what are some common critiques of this analytical tool?
16. How much power should magistrate judges have in complex antitrust cases? How could overpowering magistrate judges possibly conflict with the guarantees of the 7th Amendment?
17. You have experience with antitrust law. Do you agree with the result in Topco? What could possibly be wrong with it?
10.21.2005 1:06pm
mauro (mail):
A very interesting site of puzzles:
Oscar's Puzzles
10.28.2005 2:13pm