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Miers Speech:

I much appreciate Orin's pointing to Harriet Miers' 1993 speech, but I'd also encourage people who read the quoted paragraphs to look at the whole document, which is only 14 pages long. The speech as a whole strikes me as considerably better written than those two paragraphs are.

tefta (mail):
Eugene, you will confuse the feeding frenzy if you suggest people read the whole thing before jumping to conclusions.
10.26.2005 1:53pm
Medis:
Really? I thought the whole thing was poorly written.

That said, I think she raises an interesting point about politicians who use court orders for political cover.
10.26.2005 1:56pm
Jason Sorens (www):
I agree - poorly written. School quality is "pervasive as an influence"? Why not, "a pervasive influence"? Arguably, the former turn of phrase literally means the opposite of what she intends to say: does she really mean that school quality is "pervasive"?
10.26.2005 1:59pm
AF -- other one:
Bravo.
10.26.2005 2:07pm
Veggie_Burger (mail):
The content may have been more palatable than the way it was written , e.g. "No one should not be able to oppresively require a student to participate in religious activities against their will, but ..."

She misused a double negative, misspelt 'oppressively', and used 'their' when referring to a single student. However, she did make a good point about social issues being decided by courts as representing a failure of the legislatures in dealing with those hot-button issues.
10.26.2005 2:18pm
KenB (mail):
Was this document transcribed from her speech, or did she distribute the text herself? If this was just a transcription, then it's not really fair to use it to judge her writing style.

As far as the content is concerned, it didn't sound like the work of a conservative to me. Pro-income tax, concern about inequitable school funding, pointing out racial disparities, etc. -- a liberal Democrat could've delivered the same speech. Not sure what that says about the sort of Justice she would make, if anything, but I found it striking.
10.26.2005 2:34pm
AF -- other one:
This is a great speech -- particularly the first half that addresses the very real and problematic fact that legislatures often throw difficult problems to the courts to resolve and the part on how economic and lifestyle differences exacerbate racial problems.
The first point is wise, and it would be great to have somebody on the Court thinking more about how to force legislatures to resolve the difficult issues. It is the failure to resolve them that leads to all kinds of policy-making on the part of courts; that directly causes the Scalia/Thomas interprative concern about relying on conference reports; and that creates all kinds of mischief and uncertainty. This is the thinking of someone I would like to see on the court. Someone who demands more decisiveness and boldness by the legislature would be great.

The second point is brave. Texas clearly had real racial problems at the time, and she stepped head first into it. And not in a liberal power-grab sort of way, but in thinking about inventive solutions to solve the problem.

She made this speech well before she crossed paths with the President, but in this speech I can start to get a window into why the President was so impressed with her.

As for a few other aspects of the speech -- abortion speculation and the typos -- the abortion discussion does suggest a pro-choice viewpoint, at least as a matter of legislating. But I would think that it suggests the opposite when it comes to judging -- keep in mind this is a speech made during the end of her tenure in the ABA where she fought to get rid of its support for Roe v. Wade, the court decision. The part about wanting legislatures to make the tough decisions also suggests the court's role should be more limited.

As for the typos, this was drafted to be used in making a speech. It was written to be spoken, and not edited for publication.

What is most disappointing is the fact that, until Eugene intervened, the portions of the speech this blog highlighted were the least interesting -- the ones that said little about the substance of Harriet Miers, but looked more like a Fox news ticker "13 year old Miers speech indicates she is pro choice!!!" I persist in my complaint that much, but not all, of the Miers stuff on this site is lowering, rather than raising, the level of the discussion.
10.26.2005 2:36pm
Stephan:
I'm with Medis and Jason. The whole thing is dismayingly shoddy. For example: "[T]he Courts continue to be looked to for solutions to injustice or perceived injustice. Many racial issues are so embroiled with economic issues that they are even more difficult and compromise comes hard." Come again? I've seen eighth-grade term papers that were superior to this, both stylistically and substantively. I understand that this is a speech we're talking about, but these are prepared remarks, not a transcription of off-the-cuff remarks.

By the way, I'm stunned that a Bush nominee to the Supreme Court would so cavalierly assert that we gave up "a long time ago" on legislating morality. While that may be one of the animating assumptions of decisions like Lawrence v. Texas, it's hardly a notion to which judicial (or other) conservatives subscribe. I hate even to remotely echo Senator Santorum here -- really, I do -- but our society's prohibitions against bestiality, prostitution, polygamy and the like are first and foremost morals legislation. (If we wished to regulate these activities for health, safety, or other non-"moral" reasons, there are more narrowly-tailored ways to do so besides outright prohibition. But legislatures have prohibited and continue to prohibit these things because they find them morally repugnant.) Even drug laws are grounded in morality. What the hell is she talking about here? And I'm still not even sure how it fits into her overall thesis (if indeed she has one).

Like almost all of the other news pertaining to this nominee, these remarks serve only to confirm that she is (a) not up to scratch qualifications-wise, and (b) not the reason why conservatives with an eye on the judiciary voted for Bush.
10.26.2005 2:38pm
tefta (mail):


Let's not forget this was a speech possibly for her eyes only. Had she known it would be taken apart by the most brilliant legal minds on the planet, not to mention the Judiciary Committee and the media, she might have taken the time to make it publication perfect.

Poorly constructed sentences are far better, in my opinion, than poorly constructed rulings. Also, in her defense, some us may have forgotten or are too young to remember, how tedious typing or writing long hand for typists to copy was in the old days before word processing and spell-chek.

I wonder how many of us, even with today's ease of editing, send out our first draft as the finished product.
10.26.2005 2:55pm
Neal R. (mail):
I'm with Medis and Jason and Stephan. The whole thing strikes me as horribly written, even for a relatively informal speech. I would prepare my remarks more carefully if I were speaking to a PTA meeting.
10.26.2005 3:05pm
OrinKerr:
AF -- the other one,

I chose that section only because it seemed to deal most directly with the proper role of courts. I don't know whether that section was the most "interesting," as you put it, but I do think it is the most relevant if our goal is to understand Miers' judicial philosophy.
10.26.2005 3:13pm
Victor Davis (mail) (www):

Also, in her defense, some us may have forgotten or are too young to remember, how tedious typing or writing long hand for typists to copy was in the old days before word processing and spell-chek.


The speech Eugene linked to was given in 1993. Contextual references within the speech were contemporaneous to that time period.

This speech was poorly written. The concept and thrust of the first half was good -- as AF notes -- but the execution in many sentences was lacking. Beginning around page 5 or so things started to get better for awhile. But her points are seldom made with force and clarity, and often contain hidden contradictions or hyperbole. I think this speech as a whole is perhaps better than the quoted passage and also better than her letter to Bush regarding HB2987. But this is still substandard.

We can only hope this was a crude transcription or a rough draft of some sort.
10.26.2005 3:16pm
Stephan:
Tefta, those are certainly fair points, and I'll admit to having forgotten what life was like before the regular use of word-processing software. Still, I'd be much more inclined to cut her some slack in that regard if her few published bar articles weren't written in the same cumbersome, clunky manner. That they are suggests that her prepared remarks would look much the same even if she did have a word processor and even if her notes were prepared for others' consumption. And either way, nothing excuses the vacuous nature of the speech.

As for AF's contention that it was a "great speech" on the merits, I'd beg to differ, at least from a conservative's standpoint. At an NRO Corner posting a few minutes ago, Ramesh Ponnuru soundly refuted the suggestion that we conservatives should feel comforted by Miers's concern about legislatures' too-frequent "punting" of hot-button issues. I recognize that Ramesh's argument is fairly general — and, unlike Miers's speech, doesn't speak to the specifics of what was going on in Texas — but I think his point still has some force.
10.26.2005 3:21pm
Stephan:
Here's the link to Ponnuru:

10.26.2005 3:25pm
Stephan:
Or not. Can't get it to work.
10.26.2005 3:26pm
Marcus1:
I liked this sentence:

"With little variance, most elections these days are somewhat predictable because of sophisticated polling and pulse taking."

With little variance, mostly somewhat predictable? Talk about making your head spin!

I think the defenses being offered here are all good and well; the only problem is that her style of writing has been so consistent in everything we keep seeing. This speech is by no means an outlier.

Am I the only one here who sees a strong similarity to the way Bush communicates? It strikes me as the utter lack of any internal editing device to determine whether a sentence being uttered actually makes any sense. Sort of a rejection of logic for folksy wisdom or something. Kind of churchy in a way. Is this possibly their real bond, and the reason Pat Robertson is so strongly behind her?
10.26.2005 3:28pm
Victor Davis (mail) (www):
Am I the only one here who sees a strong similarity to the way Bush communicates? ... Kind of churchy in a way.

I agree. I first began to think of this when I read her last sentences in the questionnaire, in which she repeated her admonition that justices need to follow the "rule of law" rather than the "rule of man". Never fear, she specified that the Founders gave us the "rule of law". She made another reference to the "rule of man" in one of her quotes first cited here on the VC.

I did a Google, and I found a plethora of references to the "rule of man" versus the "rule of God" on Christian evangelical sites. I assume this is not a traditional legal expression.

I therefore suspect that she just borrowed the language from her religious training. Given my non-zero but limited exposure to Southern evangelical churches, I don't think you can repeatedly expose your brain to their "idioms" for 20 years and not have it affect your language. This has indeed likely formed a bond between Bush and Miers and perhaps Robertson. Bush and Robertson think they know what she means because she uses their language. Unfortunately, I'm not fluent in that language and don't entirely share their faith.
10.26.2005 3:46pm
JayJ:
A tentative thought meant somewhat facetiously:

If Miers is confirmed, it's possible that she'll become a clerk-driven Justice, in which case it doesn't really matter how well she writes, does it? ;-)
10.26.2005 3:48pm
Shelby (mail):
tefta:
Poorly constructed sentences are far better, in my opinion, than poorly constructed rulings.

Show us her well-constructed rulings and we'll shut up about the speeches. For that matter, show us some substantial, neutral legal analysis. I don't blame Miers that these things are missing; I blame her nominator. But they're all we have to work with (other than "trust me") in trying to figure her out.

Even a copy of what she wrote in getting onto Law Review would be helpful, though it would only show her as of thirty-five years ago.
10.26.2005 3:50pm
Roach (mail) (www):
If Miers will be clerk driven, and she likely will, it would be a disaster. She'd cleve to them as the only people she trusted, and they'd in turn lead her down a leftist path that her "good people need to get together and cooperate and everything will be OK" mantra cannot easily refute. She's the type of "useful idiot" that the left has always coopted; namely, she's a decent community-minded person who does not understand she's compromsing with the devil that ultimately despises her and other bourgeois symbols.
10.26.2005 4:11pm
Eric Muller (www):
In terms of quality, I neither see nor observe anything to be objected to as concerns this particular speech. Excellent word choice is displayed as well as a keen sense of usage insofar as grammatical matters are concerned.
10.26.2005 4:16pm
Justice Fuller:
There is little chance that Miers would be clerk-driven. Recall that she is famous for being a micromanager who cannot delegate.
10.26.2005 4:31pm
Hoosier:
Well, she isn't Harper Lee. That's for sure.
10.26.2005 4:37pm
Hoosier:
Or was that an understatement?
10.26.2005 4:37pm
Dread Justice Roberts:
Nice post, Heric Mulliers.
10.26.2005 4:37pm
corngrower:
Can't write.

Well it is obvious she will never succeed as a poster to any blog.

We got big big issues in front of us, and, we get she cant write and cant understand how to use a comma!

Of course, every poster here has spent their,there,they're,shit you know what I mean, entire life and accomplished more than Miers. Cant use commas, and a speech she gave may or may not have been her writing, or a transcript from someone else of a speech she gave.

Maybe you are all correct. Hire an English Prof
10.26.2005 4:39pm
JayJ:
It is important to note that Miers's being a micromanager does not necessarily mean that she will not be clerk-driven. As Jeffrey Rosen has written in the New Republic, Miers might follow the model of "detail-oriented justices who are so intellectually insecure that they are pushed into ideological extremism by their law clerks. Here, the cautionary tale is Justice Blackmun, who -- as Linda Greenhouse's wonderful new book reveals -- spent time correcting his clerk's typos and fussing over the factual details of cases while delegating much of the legal analysis and drafting of opinions to his clerks."

So it does remain a possibility that she will be clerk-driven where it counts: legal analysis and opinion drafting.
10.26.2005 4:41pm
Marcus1:
>She's the type of "useful idiot" that the left has always coopted; namely, she's a decent community-minded person who does not understand she's compromsing with the devil that ultimately despises her and other bourgeois symbols.<

Sometimes we're "bleeding hearts"; other times we despise everything bourgeois. Ok, there.

I wonder how many people, if polled, would say that they despise Harriet Miers. I bet it's not that many, but I also bet there are more on the right than on the left!
10.26.2005 4:45pm
Marcus1:
Eric, you left out the self-contradictory qualifiers. What you have is her at her best.
10.26.2005 4:52pm
Crank (mail) (www):
This is bad. Leave aside the typos and some of the grammar, which is understandable in a speech to be presented orally. We've long since left behind the 19th century practice of Justices delivering opinions extemporaneously from the bench, anyway.

But (1) the thing is still badly lacking in clarity and structure, even for a speech, as she lurches from topic to topic and seems to just assume the audience knows what she's talking about on points where she dissolves into gassy generalities; (2) even if a lot of the liberal talking points in here are unobjectionable in themselves, nearly everything in here could be from a Hillary Clinton speech; and (3) some parts are positively alarming, esp. (for pro-lifers) the overtones of the points on abortion.

Although I do agree that the point about politicians sharing some of the blame for judicial activism is a fair and well-taken point. But even that is a point that is often made by defenders of a liberal judiciary.
10.26.2005 5:00pm
Jason Sorens (www):
Quoth Marcus1:
Sort of a rejection of logic for folksy wisdom or something. Kind of churchy in a way.

Her writing reminds me more of the overly cautious, obfuscating jargon-speak that Orwell excoriated in "Politics and the English Language."
10.26.2005 5:02pm
Thorley Winston (mail) (www):
This is a great speech -- particularly the first half that addresses the very real and problematic fact that legislatures often throw difficult problems to the courts to resolve and the part on how economic and lifestyle differences exacerbate racial problems.

The first point is wise, and it would be great to have somebody on the Court thinking more about how to force legislatures to resolve the difficult issues. It is the failure to resolve them that leads to all kinds of policy-making on the part of courts; that directly causes the Scalia/Thomas interprative concern about relying on conference reports; and that creates all kinds of mischief and uncertainty. This is the thinking of someone I would like to see on the court. Someone who demands more decisiveness and boldness by the legislature would be great.


I whole-heartedly agree. Those of us who have criticized the courts for "legislating from the bench" need to keep in mind that oftentimes this is the result of the legislative and executive branches hoping that the courts will make the difficult decisions for them. We see this also at the local and State levels where the federal government is blamed (sometimes with justification as in the case of unfunded mandates) for problems that are mostly local in nature. A pity that so few public figures seem to be making this point.
10.26.2005 5:14pm
JayJ:
Good point Jason. After Orwell lists some egregious examples of the writing he disdains, he writes:

"Each of these passages has faults of its own, but, quite apart from avoidable ugliness, two qualities are common to all of them. The first is staleness of imagery; the other is lack of precision. The writer either has a meaning and cannot express it, or he inadvertently says something else, or he is almost indifferent as to whether his words mean anything or not."

Orwell's observation appears to accurately describe a significant portion of Miers's writings.
10.26.2005 5:18pm
Stephan:
Corngrower, et al.:

I think we skeptics concede that spelling and grammar aren't everything, and that law clerks can polish a Justice's work. But Miers's prepared remarks are still quite probative of her innate ability, especially when they are read together with her few published works and her written responses to the Senate Judiciary Committee. They directly and absolutely obliterate the Administration's claim that Miers is a detail-driven person who cares about such menial matters as spelling and grammar. Of course, that characteristic is supposed to lead us to believe that she takes similar care, and has similar skill, when it comes to substantive legal matters. But the Administration has no objective proof of such legal acumen, so it's been forced to claim that one of her chief qualifications is that she's detail-driven. Obviously, when one of a nominee's proffered qualifications is demonstrably lacking, people grow even more skeptical of the remaining few.

In any case, I'd wager that if we could all get a glimpse of informal, hastily prepared remarks (even from 1993 or some other word-processing-challenged era) from the likes of Michael McConnell, Janice Rogers Brown, Edith Jones, or any of the other candidates on the conservative wish list, we'd see more incisive reasoning and much cleaner writing. I don't think it's too much to ask of a President to find a nominee who is more skilled at crafting a written argument -- even hastily and absent a law clerk's assistance -- than the average high-schooler. A Justice's job is to explain to the world, in understandable terms, why the Court has reached a particular conclusion about a particular point of law.

No patient would want a surgeon suffering from DTs. Miers is the legal equivalent. Yes, her written product is just one part of a bigger picture. Even by itself, though, it renders hilarious the President's claim that she was the most qualified person available for the job.
10.26.2005 5:35pm
Thinker:
I know there are supporters herein - but this is awful. Let's give her the benefit of the doubt that the speech is a draft. It grammatically shoddy and inartful. We all write such things.

However, what troubles me more is the thinking behind it. It is a popularist - pleasing speech. She's theoretically all over the map.

Her conflicting positions continue to make sense. She appears to be exactly what she is - a competent corporate attorney and political hack, who thought she might get a political job in Texas. She's appealing to the groups that are her natural supporters. Frankly, i think that's the reason for her alleged conservative revision. She's now appealing to W. Once on the court - who knows to what she'll be drawn.

That she would even be in the running frightens me to the core!!
10.26.2005 5:39pm
Chris Grant (mail):
I'm all for clear thinking and clear writing, but what puzzles me about anti-Miers conservatives is the apparent selectivity of their outrage. For example, is it less important for the U.S. President (AKA the Leader of the Free World) to be able to think and write clearly than for a Supreme Court Justice to be able to do so? Have conservative nominees for President consistently been regarded as outstanding in these areas? Have the ones that weren't been the target of Frumian petition drives, etc.?
10.26.2005 5:43pm
DJ (mail):
Roach, do you have a particular clerk in mind who's the kind who'd drive Justice Miers down the path of socialism? Jim Ho? Or maybe Allyson Newton? What about Anup Malani? Or Alex Willscher? Are they all on your secret list of sympathizers?
10.26.2005 5:51pm
anon:
In her scolding of legislators for avoiding difficult issues, she acccepts without apparent criticism the necessity for the courts to fill the breach. Doesn't this at least suggest that she would be the sort of justice who would feel compelled to do the legislature's job for it?
10.26.2005 5:59pm
Shelby (mail):
Chris Grant:
is it less important for the U.S. President ... to be able to think and write clearly than for a Supreme Court Justice to be able to do so?

Alas, yes it is indeed less important for the President to be able to, at least, write clearly. The President's precise words matter less (though they still matter a good deal) because they are not meant as a guide to thousands of subsequent, similar situations. The President also may hire speechwriters purely for their ability to write clearly to aid in expressing ideas; justices have less leeway in this regard.

The President does need to be able to think clearly, and often though not always clear thought is reflected in clear writing. She also needs to be able to do many other things that are not required of a SCOTUS justice, and those other talents may outweigh judicial qualities in importance.
10.26.2005 6:01pm
Eliza (mail):
Had she known it would be taken apart by the most brilliant legal minds on the planet, not to mention the Judiciary Committee and the media, she might have taken the time to make it publication perfect.

Perhaps. But if she views her responses to the Judiciary Committee as "publication perfect" then I think we're looking at her best efforts here.
10.26.2005 6:13pm
Stephan:
Chris:

I support the President more often than not, but yes, I do in fact think he'd be more effective if he were clearer-spoken than he often is. The first Presidential debate versus John Kerry in the run-up to Election Day 2004 provides a strong example on that score. (And his nomination of Miers in itself makes me wish he were sometimes clearer-thinking, too.)

But I think it's safe to say that writing skills are more important in a Justice than in a President. When I voted for President Bush, I didn't do so because I thought his writing would be better than John Kerry's. And I don't know anyone who voted for him (or Kerry, for that matter) on that basis. The reasons, I think, are self-evident.

In any event, there are more qualified candidates for the Court than the current nominee. That hardly seems disputable. And that seems to me the relevant question. I don't think it's hypocritical of conservatives to ask for the best nominee (or at least one of the best nominees) available or to express their chagrin when the current selection doesn't seem to meet even the minimum criteria for the relevant post.

And I'm sure I speak for all conservatives when I say that, yes, ideally we'd all hope for a Justice who can write with the lucidity of a Justice Scalia or a Justice Jackson or, by all outward signs, a Chief Justice Roberts. Indeed, even as a conservative, I'd prefer a Justice Brennan or a Justice Breyer to a Justice O'Connor. At least I know what the law is going forward when I read a Justice Brennan opinion, whether I agree with it or not. Indeed, with Justices Brennan and Breyer and other leading liberal lights, I often find myself thinking, "I never thought of it that way before." I've never, ever thought that upon reading a Justice O'Connor opinion, and I don't suppose I'd do so upon reading a Justice Miers opinion either.

From what I've heard, Miers sounds like an effective manager. She successfully managed a large law firm, which is nothing to scoff at. She's held all kinds of governmental posts that would qualify her for all sorts of important positions. Given her penchant for obfuscating, she'd be a great candidate for an elected office. But her managerial prowess and obvious political skill are qualifications for a different job than Supreme Court Justice.
10.26.2005 6:20pm
Roach (mail) (www):
Golly DJ, you seem to know all the Chicago clerks. None of those people would worry me too much. It's the liberals from Yale/Harvard/Columbia that would.
10.26.2005 6:31pm
Medis:
I'll put it more bluntly: of course being clear and precise with words matters more with a Supreme Court Justice than with a President. How could anyone seriously think otherwise?
10.26.2005 6:33pm
Roach (mail) (www):
Many of us are bloggers or frequent commenters. We may have typos and the occasional run-on sentence, but almost everyone on this thread knows how to make a clear point. Miers doesn't. She doesn't even know what she thinks; she wants to please everyone, or she's a coward that won't say what she thinks, or she's been a coward so long she doesn't know what she thinks. In any case, she sucks. Her writing sucks. It's boring and the sign of an undeveloped intellect. In fact, the super-strong, "I'm offended" rhetoric of her letter as TX Bar President suggests she has the vice of many people who are not used to developing their opinions: when she does express an opinion, she's tone-deaf to the possibility of reasonable disagreement. She overpersonalizes issues on which she feels strongly, because she's so used to thinking that consensus is possible. If you disagree with her when she actually forms an opinion, that must mean you're unreasonable.

She's the WORST MOST BORING kind of lawyer: dumb, impressed with herself, uncurious, nitpicky, and lacking in all theoretical understanding of the law.
10.26.2005 6:45pm
Houston Lawyer:
Ditto what Roach said. It reads like a poor endorsement for all judicial activism. The courts couldn't just be expected to allow the status quo to continue now, could they? There are injustices in this world just begging for action and the legislature won't act. Oh golly gee!!!

Evidently hiring standards have gone up since she started her practice. I wouldn't make an offer to a summer clerk who wrote this poorly.

I have often found that you don't truly understand an issue until you write it down. The process of writing requires you to clarify your thoughts. Bad writing reflects poor thought.
10.26.2005 7:07pm
Chris Grant (mail):
Medis writes: "I'll put it more bluntly: of course being clear and precise with words matters more with a Supreme Court Justice than with a President. How could anyone seriously think otherwise?"

You've conveniently modified the question by dropping the reference to clear thinking. Furthermore, "It's obvious!" is no more convincing an argument coming from an anonymous Internet poster than it is coming from one of my real analysis students. Fifteen years ago, why should I have been more concerned with Clarence Thomas's eloquence (or lack thereof) than about Dan Quayle being within a heartbeat of having possession of the nuclear football?
10.26.2005 7:21pm
Veggie_Burger (mail):
"She's the WORST MOST BORING kind of lawyer: dumb, impressed with herself, uncurious, nitpicky, and lacking in all theoretical understanding of the law."

He's the WORST MOST BORING kind of president: dumb, impressed with himself, uncurious, nitpicky, and lacking in all theoretical understanding of the government or of the law.

Thank you, Roach, for clarifying my conception of Pres. Bush for me.
10.26.2005 7:35pm
Shelby (mail):
Chris Grant:
Fifteen years ago, why should I have been more concerned with Clarence Thomas's eloquence (or lack thereof) than about Dan Quayle being within a heartbeat of having possession of the nuclear football?

Why, is Quayle that bad a writer? ;-)

Seriously, I hope you were more concerned about Quayle. And if you want to be more concerned about Bush than about Miers, that's fine. But as far as Miers goes, she (apparently) lacks just about everything an appellate judge needs. If she were an eminent professor or judge, if she had spent a few years running DoJ or the EEOC, if she had been Solicitor General -- then I'd be less concerned. But she doesn't EVEN have skill writing or, as far as I've seen, analyzing legal issues. That's the point.
10.26.2005 8:56pm
Victor Davis (mail) (www):
Two related questions ...

1) Leahy and Specter requested a response by today. I was thinking she would provide answers to their revised questions today. Is she late, or does the relatively simple, "I received your letter" response that she sent on Oct. 19 qualify?

2) Does anyone know her role (or lack thereof) in the legal wranglings that arguably delayed the federal gov't's Katrina response?
10.26.2005 9:23pm
Medis:
Chris,

I dropped the reference to clear thinking because I agree that anyone in a position of great responsibility, including judges, executives, and legislators, should be a clear thinker. But while clear thinking is sometimes correlated with clear writing and a precise use of words, it is not always, so clear writing isn't a necessary requirement for people who should otherwise be clear thinkers.

On "obviousness": I freely admit I wasn't making an argument intended to persuade. I was rather claiming that no one could seriously be disputing this point. But if you really need an argument, I'd simply note that the opinions written by Supreme Court Justices are binding on lower-court judges, and the Supreme Court cannot possibly revisit all of the cases that lower-court judges will decide based on those precedential opinions.

Accordingly, for the sake of those lower-court judges, and of the litigants who will have their cases and controversies decided with finality by those lower-court judges, it is crucial that the Supreme Court's decisions be as clear and precise as possible. Indeed, that is true even for those merely predicting how the courts would decide an issue, so that they may conform their behavior to those predictions.

None of this, of course, is true of the speeches made by Presidents, which are in no similar sense binding on anyone. In fact, the closest thing would be Executive Orders, and those are drafted and reviewed by teams of lawyers with exactly these concerns in mind. Of course, Justices also have their teams of clerks, but the Justice is in charge of that team, and the person responsible for making sure that the opinion is as clear and precise as possible.

But seriously ... did you need to hear all that? Are you really--really really--contending that a Supreme Court Justice does not need to be particularly clear and precise with words despite the precedential importance of their opinions?
10.27.2005 9:20am