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Interesting Comment on Blogs and Supreme Court Nominations:
The Dallas Morning News has a story today on a speech given by White House Counsel Harriet Miers to the Dallas Bar Association. Former bar association president Darrell Jordan introduced Miers, and called the criticism of her Supreme Court nomination "vitriolic," "unfair," and "shameful."

  Miers responded to Jordan's comment with a joke: "I think I needed you out in the blog world."

  Thanks to Howard for the link.
Mike BUSL07 (mail) (www):
I can see that being told that one is not an adequately capable lawyer for the job is hurtful, but there is nothing "shameful" in demanding that a SCOTUS nominee be an intellectual heavy-hitter, experienced thinker (as opposed to administrator), and the recipient of a top-notch education.

If I was signed by the Knicks, people would come out and say - "he is not tall enough, he is slow, has no jump-shot, and never played organized basketball." All of that would be unpleasant to hear, but it wouldn't be false. It would be "vitriolic," only in the sense that it's harsh, but seriously, sometimes you have to be harsh.

Did people seriously expect that someone with no academic or judicial experience and downright inferior knowledge of constituional law, would just get a free ride?
4.29.2006 7:31pm
Cornellian (mail):
Saying "you're not up to the job of Supreme Court Justice" is true of about 99% of the lawyers in the country and it's hardly shameful to say so.
4.29.2006 7:33pm
xx:
99% of the lawyers in the country don't get to be counsel to the president either.

Miers may well have been underqualified, but random commentators in the blogosphere had no basis for knowing if she was, one way or another. People started criticizing the nomination within minutes of its leak, when all we knew was that she had risen to multiple difficult-to-obtain provisions in the legal community.

The attacks were nominally about her qualifications, but they were really about the fact that she wasn't a known conservative commodity. And she has some right to be annoyed by uninformed criticism of her personal ability used to shield an entirely different concern with her nomination.
4.29.2006 7:44pm
Kate1999 (mail):
xx,

Thanks for your thoughts, Harriet!
4.29.2006 7:50pm
ThirdCircuitLawyer (mail):
XX,

Would you mind telling us what your own politics are? The only people I know who insist that Miers was criticized because he wasn't a known conservative are themselves people who don't know any conservatives. They're just guessing, and it's an unflattering guess because the left can't imagine that the right would oppose someone because she was unqualified. It's all baloney.
4.29.2006 7:54pm
Mike BUSL07 (mail) (www):

The attacks were nominally about her qualifications, but they were really about the fact that she wasn't a known conservative commodity.

No, she was attacked, largely, for saying things like "constitutional right to proportional representation."

Incidentally, there is something to be said for being a "known conservative commodity." Odds are that folks in that position are in it for a reason, and vice versa. I'm not saying that SCOTUS nominations should be a popularity contest, but the reason you heard of Kozinski, is that he is a well known and respected judge. The reason you never heard of Miers until she was nominated, is that she was a mere well-connected bureaucrat.
4.29.2006 7:54pm
Mike BUSL07 (mail) (www):
LOL, Kate.
4.29.2006 7:55pm
ThirdCircuitLawyer (mail):
Ooops -- make that "she" wasn't a known conservative.
4.29.2006 7:55pm
John Jenkins (mail):
Mike, that pretty much describes most of the Knicks roster, so you would be right at home.

[A]ll we knew was that she had risen to multiple difficult-to-obtain provisions in the legal community.

None of which required much in the way of legal acumen. Legal Counsel to the President is, after all, the most backstopped legal position in the world.
4.29.2006 7:55pm
Mike BUSL07 (mail) (www):

Mike, that pretty much describes most of the Knicks roster, so you would be right at home.

I almost went there myself, but thought it just too brutal. :)
4.29.2006 7:57pm
Thief (mail) (www):
The irony of this is that IMO Miers would have made a perfectly good Federal District, or possibly even Circuit judge. (It seems that prior service on a Circuit Court is now the new prerequisite for a SCOTUS slot.)

And I don't think it was the comptency issue alone that sunk her, it was the appearance of cronyism, as well as the likelihood that she would have had to recuse herself on too many vital cases to be effective.
4.29.2006 7:58pm
xx:
ThirdCircuitLawyer:

Well, I don't consider myself conservative, which you may take as proving your point. I have to contend that I know at least one conservative though: The judge I clerked for is on everyone's list of "known conservatives." (although when the president floated his name several Republicans said he wasn't conservative enough, and when he got nominated, Democrats held him up for being too conservative).

The experience of knowing conservatives, however, doesn't solve my "unflattering" view of the Miers criticism, because its not an issue of conservative v. liberal. People on both sides of the aisle hide their political views and gut opinions under more objective garb. Heck, its not even limited to politics - In every area of life, people take in small bits of unreliable information and use it to form deeply held opinions based on their preconceptions.

Given that none of the bloggers who were immediately outraged at the announcement of Miers' nomination had any first-hand knowledge of her intelligence, or any appreciable amount of objective evidence about her credentials, I ascribe that view to something other than concern over her intellect, even if the bloggers themselves were sincere with why they thought they held their views.

It's an entirely apolitical stance. Just like my sense that neither the people who are convinced that the Duke Lacrosse players are innocent nor the people who are convinced the players are guilty have any good reason for having a strongly-held belief in something they know nothing about.
4.29.2006 9:21pm
Irensaga (mail):
So, getting to the actual point of this post ...

Have we gotten to the point where the blogs actually define major political events with some regularity?
4.29.2006 9:26pm
Mike BUSL07 (mail) (www):
xx, You are lumping together people who had a knee jerk "never-heard-of-her" reaction, with more reasonable folks who did the research, which does not take a lot of time these days, and decided that you can always find a better candidate than Miers - for starters - someone with even a little bit of relevant experience and better schooling. Also, the fact that she was Bush's crony made her a bad candidate - why have to fight those charges, when you can pick someone just as good or better, who is not in Bush's pocket?
4.29.2006 9:28pm
jgshapiro (mail):

[T]he reason you heard of Kozinski, is that he is a well known and respected judge.

Was he well-known and respected before he was appointed to the 9th circuit? How many sitting justices were nationally known and respected lawyers or judges before their appointment to SCOTUS? Had you ever heard of Stevens, O'Connor, Souter or Thomas before they got promoted?

Thief is right -- you pretty much have to be a circuit judge now to make it through. A circuit court job launders your CV and makes you a de facto contender for SCOTUS. It's like being a cardinal in the Catholic church. Theoretically, anyone can become pope, but realistically, you have to have a red hat for you to be taken seriously as papabile. (Maybe you can get through to SCOTUS if you are a state supreme court justice, but even that is no guarantee. Brennan was the last one to try it in 1956.)

Miers would have been confirmed to the 5th circuit easily, probably the D.C. circuit as well. Bush could have appointed her to SCOTUS from either court with the next vacancy. Naming her from the counsel's office was just stupid, and was the principal reason why she couldn't get through.

I'm not saying she deserved to get through, but as Clint Eastwood said to Gene Hackman in Unforgiven right before he popped him, "Deserve's got nothing to do with it."
4.29.2006 9:35pm
John Jenkins (mail):
O'Connor was a state appeals court judge when she was nominated in 1981.
4.29.2006 9:44pm
Mike BUSL07 (mail) (www):
Hell of a movie, Unforgiven.

JG, I'm not sure if there is anything wrong with having COA judgship be a pre-requisite of being on SCOTUS. Not as a binding, inescapable rule, but as a general policy. There is a lot to be said for having a SCOTUS nominee go up with an established record - we know that much more about her political views and her quality as a judge. I don't think it's a foregone conclusion that if Miers could go to the 5th, she could jump to SCOTUS 5 years later. SHe might turn out to be a bad judge, and her career would end there. At least the mistake would be limited to 1 Circuit, (and God knows it's a mistake that's been made a few times, cough - J. Reinhart, cough.)
4.29.2006 9:47pm
JG:
Mike,

While I certainly don't think there's anything wrong with having circuit court experience, I am skeptical about requiring it as a "general policy," principally for reasons of judicial independence. As you implicitly acknowledge ("She might turn out to be a bad judge...."), instantiating a hierarchy of prerequisites within the federal judiciary runs the risk of making judges pander to their potential appointers/confirmers.
4.29.2006 11:06pm
Mike BUSL07 (mail) (www):
fair enough, though i suspect that many federal judges who take a long view on these matters, already pander, within reasonable limits, to their hypothetical appointors.
4.29.2006 11:14pm
Dave Hardy (mail) (www):
(Maybe you can get through to SCOTUS if you are a state supreme court justice, but even that is no guarantee. Brennan was the last one to try it in 1956.)

O'Connor was elevated from AZ Ct. of Appeals, Div. One.
4.29.2006 11:32pm
the sports guy (mail):
Mike,
expect a call from isiah thomas within the next week.
4.29.2006 11:48pm
Duffy Pratt (mail):
From the way people criticize SCOTUS on this, and other blogs, I'm sure most people believe that THEY could do the job. And many of them are not as qualified as Meiers was. But basically they are right: the job of SCt Justice isn't all that hard. It doesn't require any special sort of genius, and in recent years, the justice need not be able to write a word.

Basically, there are many, many people who are capable of being competent Supreme Court Justices. The question of who is qualified to go through the nomination process is entirely separate from the question of who is capable of doing the job.

The sad thing is that with so many capable possible candidates out there, we wind up with so many basically incompetent justices.
4.30.2006 12:23am
A. Rickey (mail) (www):
ThirdCircuitLawyer:
The only people I know who insist that Miers was criticized because he wasn't a known conservative are themselves people who don't know any conservatives.

There's quite a few of us who thought Miers got railroaded and yet are conservatives. So if you don't know any, I'd suggest it's just a matter of looking some of us up. (I can think of myself and Beldar right off the top of my head.) It wasn't so much that we were for her as we objected to people judging her without any real knowledge. "Not an intellectual heavy hitter" generally translated to "not a judge or an academic." The Miers critics didn't so much have proof that she was unqualified as proof that she didn't have the brass rings that would have satisfied their comfort zones.

Anyway, ThirdCircuitLawyer, just figured I'd introduce myself. Now you know one conservative who does think Miers got railroaded by groupthink.
4.30.2006 12:25am
HLSbertarian (mail):
A. Rickey said: "Not an intellectual heavy hitter" generally translated to "not a judge or an academic." The Miers critics didn't so much have proof that she was unqualified as proof that she didn't have the brass rings that would have satisfied their comfort zones.

You might have a point, but who was supposed to convince whom?

If we can generally agree that "intellectual heavy hitter" of some sort is a requirement, then we'll need SOME proof of it. If she'd had the "brass rings," many people would have accepted that in place of actual evidence of intellect. But since she didn't have the rings, wasn't the burden on those pushing the nomination to provide the proof? Should the onus really be on commentators, in the absence of any significant academic or judicial record, to go figure out if the woman has the necessary gray matter?
4.30.2006 1:04am
Mahlon:
Gee, guys, sounds like you think the nomination process is, or at least should be, something other than the political joke that it has become. What a concept! Let's face it though, the Administration did not handle Miers well.

There is debate as to how difficult the job of a SCOTUS Justice is. I tend to fall into the group that thinks many lawyers could do a compentent job. I honestly think that 10% of attorneys could do a decent job. In the history of the Court I know there have been some real losers, and without naming names, there is at least one on the Court now.

With that said, I also believe a nominee needs some "bling" on the old CV in order to be viable(sorry, it's late and I couldn't find another meaningless word which purports to mean something). I said viable, not competent. Although a Justice holds what is theoretically an apolitical position, the appointment process is, or rather, has become, extremely political. I think this is a major reason why nomination of close associates is dangerous. Sadly, good potential nominees may be eliminated from consideration, but such is life.
4.30.2006 1:43am
Monkberrymoon (mail):
I agree with HLS. The problem is that the President, who should have been able to show us what a dazzling Justice Harriet could have been, was reduced to saying, "Trust me." Sorry, but that's not going to cut it. Especially when (at least to Texas lawyers) she was in charge of an organization that was, well, opposed to most things that conservatives are in favor of.
4.30.2006 1:57am
RJT:
As long as we are discussing SCOTUS, any speculation on when Stevens or Ginsburg will call it quits and who would be nominated by a President Bush/Mcain/Clinton?
4.30.2006 2:01am
David M. Nieporent (www):
There's quite a few of us who thought Miers got railroaded and yet are conservatives. So if you don't know any, I'd suggest it's just a matter of looking some of us up. (I can think of myself and Beldar right off the top of my head.) It wasn't so much that we were for her as we objected to people judging her without any real knowledge. "Not an intellectual heavy hitter" generally translated to "not a judge or an academic." The Miers critics didn't so much have proof that she was unqualified as proof that she didn't have the brass rings that would have satisfied their comfort zones.
I don't know you, but I know Beldar did yeoman's work trying to convince us that we were misjudging Miers. With all due respect to him, and you, your formulation above, even to the extent it is accurate, completely misses the point. It's not up to critics to disprove a nominee's qualifications; it's up to supporters to prove that the nominee is qualified. Telling us we diidn't have "any real knowledge" of her is hardly a selling point.

And in any case, your formulation isn't accurate. It wasn't merely that she wasn't a judge or academic; it was that nothing in her career screamed out "intellectual heavy hitter." Her educational background was unimpressive. Her career accomplishments were unimpressive from an intellectual point of view.

The current Chief Justice was not an academic and had little judicial experience. But there was no doubt from any quarter, liberal or conservative, that he was extremely well qualified. Miers didn't have "brass rings"? But "brass rings" are a sign of qualification. Her lack of them is telling.
4.30.2006 2:14am
SimonD (www):
David M. Nieporent's comment above; the point is that there was simply no case to make for Miers. Why was the President reduced to facile commentary about what church she went to, or how much he trusted her? Because there was nothing else to point to. What were we going to look at? Her voluminous paper trail? Her years of experience on the bench or in academia? Her extensive record of speaking engagements on legal topics? Mike BUSL07 pointed out above that among those who opposed the nomination were "reasonable folks who did the research"; this is true as far as it goes, but there simply wasn't a whole lot to research, and every little scrap of informatiojn that came out made Miers look a little worse.

Miers can scarcely cry foul now. Part of her job was to make sure that the President picked a good nominee; she should have been more aware than anyone else in the country the reasons why her nomination would fail. I would have some respect for her if she'd refused, but at the end of the day, if Miers wants someone to blame for her treatment during her nomination, she needs to look in the mirror.
4.30.2006 2:33am
SimonD (www):
Sorry, I meant to say that I agreed with David's comment.
4.30.2006 2:34am
Mr. Mandias (mail) (www):
All this talk about 'instant judgment' when the nomination was announced ignores that her name had been batted around for awhile along with the other potential nominees. We'd looked into her and already concluded that she was an underqualified crony choice. Most people dismissed her chances on that ground.
4.30.2006 6:45am
Cornellian (mail):
Maybe instead of saying "trust me" Bush should have tried the line "I"m the decider."

Basically, there are many, many people who are capable of being competent Supreme Court Justices. The question of who is qualified to go through the nomination process is entirely separate from the question of who is capable of doing the job.

The sad thing is that with so many capable possible candidates out there, we wind up with so many basically incompetent justices.


IMO only a very tiny percentage of lawyers are capable of being competent Supreme Court justices. People tend to think it's nothing more than having an opinion on Roe v Wade and letting your clerks write everything. Ever tried writing knowledgeably about civil procedure in one case, then ERISA in the next case, then patent law in the case after that? It's not that easy. How many lawyers can even read a civil procedure decision like Gasparini and understand what's going on in that case? I'd bet about half the lawyers in the US can't, possibly even more.

None of the current Supreme Court justices are incompetent. Only Scalia comes closes and that's due to his personal conduct, not his decisions.
4.30.2006 9:50am
Medis:
Having been an active participant in discussions about Miers in various online communities, I am pretty confident that Miers was getting plenty of coordinated help in "the blog world". It just wasn't persuasive. As many have noted, I think the fact that the Administration's efforts in the blog world failed so miserably this time was indicative of a "perfect storm" scenario, with Miers being viewed by many as an insufficiently-qualified crony, and by many others as potentially unreliable on certain "conservative" issues.

By the way, I might note that I don't think a lot of conservative commentators took kindly to suggestions along the lines that their criticisms of Miers were "vitriolic," "unfair," and "shameful." I particularly remember the uproar when the talking point for the day seemed to be that those criticizing Miers were actually sexists.

In general, it seemed to me one of the interesting things we learned from the online Miers dynamic is that the attack mechanism the Administration has in place for fighting the blog wars didn't work too well when many of the criticisms were coming from their usual supporters. Again, as I recall the talking points often seemed to be based on the assumption that it was Democrats/liberals who were criticizing Miers, and beside being manifestly untrue, I think this implicit assumption, and the consequent rhetorical tone, often angered conservative critics.
4.30.2006 9:58am
Medis:
Incidentally, I also think at least some "conservatives" were pretty offended at the charges of "elitism" directed at those who expressed a desire for a nominee with more significant and relevant experiences and achievements. Of course, there is an underlying issue here--to what degree should merit in that sense be traded of for ideological "reliability?--but I think many conservatives saw some of the attacks on those questioning Miers' qualifications as an implict attack on the very notion of a meritocracy--a notion they had identified as "conservative" and had defended in many other contexts.
4.30.2006 10:52am
TO:
Hey everyone, let's try this again...

How little or how much did blogs have to do with the failure of Harriet Miers' nomination?

I'll say that they had a lot to do with it because of the speed with which they spread information about her. John Fund's op-eds in WSJ flew around pretty quickly, as did her gaffes in the press, Bush's efforts at damage control, comments of the Senators indicating that they suspected her qualifications, etc. I think that by linking to this information and spreading it around quickly, the blogs and ther rest of the internet were able to inform her detractors of the reasons for which they should be her detractors.


I think it was the links rather than the commentary of the bloggers, but I think the blogs had a role.
4.30.2006 1:11pm
Medis:
TO,

I also wonder to what degree those people who usually supported the Administration found comfort in the fact that many others like them were opposed to Miers. In other words, I wonder if blogs and other online communities can serve a legitimating function in situations like this.
4.30.2006 1:23pm
SimonD (www):
Medis:
I also think at least some "conservatives" were pretty offended at the charges of "elitism" directed at those who expressed a desire for a nominee with more significant and relevant experiences and achievements.
I never minded that. I thought it showed how asinine the people supporting Miers were being: not because they thought I was being elitist, but because their charge of elitism showed that they weren't being elitist. And I think the Supreme Court IS an elite institution. It SHOULD be reserved for the very brightest and the very best. This is an appointment to the pinacle of the third branch of government, and although I'm increasingly of the opinion that lifetime tenure is a beast it is time to slay, it is an appointment for life. We SHOULD be elitist about that. Not in a "who do you know" way, of course, but in the sense that only people who have shown time and again their commitment to certain principles, and who have shown the necessary intellect, should be a nominee.

To be sure, it has not always been this way. The late Chief was repeatedly called up as an example of how someone who has not been a judge before can serve with distinction. But the Chief was nominated in a world pre-Roe, and even then it was becoming untenable.

OTOH, I agree with your comment about the perfect storm quality of the nomination. Miers' nomination could have survived her being underqualified if she was patently obviously a lifelong conservative who was going to go onto the bench and be a conservative activist, because in that case, the conservative base would have sucked up any qualms about qualifications and got behind her. Or, on the other hand, her nomination could have survived her lack of obvious conservative credentials if she'd been superbly qualified and just looked like she had a good conservative record, in which case, the conservative legal establishment wouldn't have turned on her (witness Roberts' confirmation). The problem with Miers was that she ultimately failed to please anyone: you can't please all the people all the time, but no nomination can survive if the only people enthusiastic about it are the bloody Democratic party.
4.30.2006 5:01pm
Medis:
SimonD,

Actually, "offended" was a poor choice of words on my part. I more had in mind variations on your sort of reaction, with the basic point being that I think many "conservatives" would indeed embrace "elitism" with respect to high offices, at least insofar as the "elite" in question was defined by merit (and not connections or the fortunes of birth).
4.30.2006 6:10pm
PGofHSM (mail) (www):
I think the charge of elitism was intended as an insult to those who thought that because Miers went to SMU and worked at a regional law firm instead of a NY or DC office like John Roberts, she must be subpar. Not to say that Ann Coulter speaks for conservatives generally (God, I hope not) but her entire case against Miers seemed to be "She's from *Texas*, eww!" Which, considering Coulter's campaign of contempt against blue states, is pretty weird in itself.
4.30.2006 9:42pm
SlimAndSlam:
David M. Nieporent said: It's not up to critics to disprove a nominee's qualifications; it's up to supporters to prove that the nominee is qualified.

Intuitively, I thought it might have worked the other way around: a SCOTUS nomination creates a presumption of qualification.

Or am I describing the way things worked before there was a blogosphere?
4.30.2006 10:49pm
Lev:
Dem nominees are qualified. Repub nominees are unqualified unless and until proved qualified.

The problem with Miers is that when it came to proving she was qualified, it couldn't be done. I doubt the Dems felt she was qualified, but she wasn't a Roberts, Thomas, or Scalia, so, probably, she could be trained like Flipper and Sandy, and so was the best they were going to get.

Objectively, Miers' qualifications for Justice were that she was alive, she was the first woman president of the Texas State Bar, and the first woman managing partner of her law firm. None of that relates to her intellectual capacity or knowledge or judgment or judicial temperament.

I halfway suspect that she was the Laura Bush choice.
5.1.2006 1:00am
Mike BUSL07 (mail) (www):
Slim and Slam:
"
Intuitively, I thought it might have worked the other way around: a SCOTUS nomination creates a presumption of qualification.Or am I describing the way things worked before there was a blogosphere?
"
Yeah, ever since the blogs, judicial nominees now have to be questioned and confirmed by the judiciary committee, and then voted on by the Senate.

/sarcasm
5.1.2006 2:24am
SLS 1L:
People were quick to judge Miers negatively for things she did 20 or 30 years ago, like where she went to undergrad and law school. Crazy, imho, but that's how people think.

Miers's resume probably wouldn't have looked so bad if it weren't for the implicit comparison to Roberts. Her resume was weaker than his pretty much point-for point. SMU vs. summa at Harvard College; SMU law vs. magna at Harvard Law; no clerkship vs. Supreme Court clerkship; close personal friend of George Bush vs. top Supreme Court litigator; no judicial vs. D.C. Circuit (albeit not for very long).
5.1.2006 3:49am
Daniel Chapman (mail):
At least no one dragged out her movie rental habits...
5.1.2006 8:49am
Elliot (mail):
Just wanted put a correction down - Harriet Miers did clerk, for Joe E. Estes, of the Northern District of Texas.
http://en.wikipedia.org/wiki/Harriet_Miers#Career
5.1.2006 9:35am
Elliot (mail):
And that correction was to an earlier comment, not to the blog post.
5.1.2006 9:36am
Houston Lawyer:
Remember that conservatives had already been sold the bill of goods that Souter and Kennedy were conservatives. We weren't about to take the "trust me" line without some other evidence. The final nail in Miers's coffin was her own writing. When conservatives finally got to see something she actually wrote, they were appalled.

Blogs played a large part in her downfall. The ability to immediately dissiminate information prior to it being mangled by the MSM creates a large number of well informed people who are prone to complain loudly. This was done in spades and insiders in the administration rapidly conceded that they had no defense.
5.1.2006 11:14am
HLSbertarian (mail):
SLS 1L said: "Miers's resume probably wouldn't have looked so bad if it weren't for the implicit comparison to Roberts."

You're right. Were it not for comparisons to qualified candidates, Miers would have been a shoo-in.
5.1.2006 11:56am
JohnO (mail):
I actually thought much of the criticism of Miers from the right was very principled. I, like many, started with the assumption that Miers probably was very conservative and would be reliable on a number of legal issues conservatives care about. I, like many, was also underwhelmed by the Miers appointment from the start because she was someone I didn't know anything about, and I became more underwhelmed as I learned about her resume, which seemed well short of what I expected of a Supreme Court nominee. So for me, and many others, the opposition/criticism wasn't that she wasn't conservative enough, but that assurances that Miers was conservative weren't good enough, even if true. My view was, and is, that it isn't good enough for a Republican president to nominate a candidate who is just conservative, but we are entitled to a nominee who is reasonably conservative in judicial philosophy AND objectively highly qualified for the job.

I'll agree that there was a smaller element from the right that was opposed to Miers on the grounds that, qualifications be damned, she just wasn't reliably conservative enough. And there was opposition on the left from those who were either against anything Bush was for, or who saw Miers as a stealth conservative nominee (more liberal people who, like me, assumed that Bush correctly knew Miers to be reliably conservative). But, on balance, I thought most conservative opposition or criticism of the Miers nomination was principled and based on objective qualifications without even reaching the question of judicial philosophy or degree of her conservativism.
5.1.2006 12:32pm
Medis:
As an aside, although some of Miers's defenders repeatedly tried to make it sound like criticisms of Miers's qualifications were based primarily on where she went to school, I think that analysis missed the mark. If Miers had gone on to distinguish herself as a top judge, scholar, litigator, or so on, then I don't think her educational background would have been a dealbreaker.
5.1.2006 12:33pm
David M. Nieporent (www):
If Miers had gone on to distinguish herself as a top judge, scholar, litigator, or so on, then I don't think her educational background would have been a dealbreaker.
Yes. People did criticize her educational background, and legitimately so, but that wasn't why she didn't get confirmed by acclamation.

The real problem with the Miers' defenders' arguments was that they were trying to defend her by arguing that individual deficiencies (*) in her resume were insignificant, while the critics were focusing on the totality of those deficiencies. Of course someone from SMU can be a good Supreme Court justice. And of course someone can be a good Supreme Court justice without having been a judge. And of course someone can be a good Supreme Court justice without having litigated before the Supreme Court. And of course someone can be a good Supreme Court justice without having published anything of note, ever. And of course someone can be a good Supreme Court justice without ever articulating any judicial philosophy. Etc., etc. And defenders of Miers made each of those points. But not having any of those things was the killer, and they never came close to refuting that.


(*) For SCOTUS purposes, that is; there was, of course, nothing wrong with her resume in the abstract.
5.1.2006 1:31pm
A. Rickey (mail) (www):
Oh, for pity's sake, can we drop the "Mier's supporters called us elitists and sexists" garbage?

I remember hearing the howls of pain from the right-wing blogosphere on this one and feeling ashamed of my own side of the aisle. Was everyone who criticized Miers using elitist or sexist arguments? Not at all. But the charge was that some people were, and I would think it uncommonly arrogant of conservatives to think we don't have some elitists and sexists in our midst. As PGofHSM pointed out above, Coulter wasn't exactly quiet about her feelings on SMU. As for sexism, the example that springs to mind was actually Maureen Dowd (not, obviously, a conservative), but it wasn't difficult to find conservatives saying "she's a woman, that's why she was nominated."

Supporters of Miers weren't out of place to complain about a not-unsubtle elitism in those attacking Miers. That it did not infect every criticism of her did not make it any less annoying.
5.1.2006 1:58pm
HLSbertarian (mail):
A. Rickey said: As for sexism, the example that springs to mind was actually Maureen Dowd (not, obviously, a conservative), but it wasn't difficult to find conservatives saying "she's a woman, that's why she was nominated."

Though I grant that some who spout the "nominated because she's a woman" line are in fact sexists, this isn't necessarily so. It's just as easily a criticism of reverse sexism (passing over more-qualified men) as it is an expression of sexism.

If Miers had had the credentials to back up her nomination, this criticism would have been silly. But since she didn't, and since many openly demanded that O'Connor be replaced by a woman, it wasn't at all unreasonable to assume that fulfilling the PC geneder criterion was one of the few things she brought to the table.
5.1.2006 2:11pm
Medis:
A. Rickey,

As a factual matter, it was undoubtedly true that some of the people criticizing Miers's qualifications were being sexist, elitist (although as discussed above, not all forms of elitism are unwarranted), and so on.

But you seem to be missing some important considerations. First, when someone supporting Miers's nomination chose to state such a fact as part of defending her qualifications in the face of widespread criticism, that choice implied that there was a high enough proportion of these sexist/elitist/etc. critics such that noting this fact would actually undermine those criticisms in general. Second, the fact that someone would have to resort to such a defense of Miers's qualifications implied that they couldn't do better--eg, by actually citing persuasive qualifications.

So, it doesn't really address the underlying issue to point out that some people criticizing Miers were in fact being sexist, elitist (in a bad way), and so on. Rather, one has to explain why Miers's defenders sometimes chose this tactic, and I think that choice is really what got some people in the "right-wing blogosphere" riled up.
5.1.2006 2:28pm
Stephen F. (mail) (www):
Miers' nomination could have survived her being underqualified if she was patently obviously a lifelong conservative who was going to go onto the bench and be a conservative activist, because in that case, the conservative base would have sucked up any qualms about qualifications and got behind her.

I have to disagree here. After the initial wave of criticism, Bush seemed to go out of his way to hint that she would be a reliably pro-life justice. He spent a lot of time talking about her church background, even bringing in some big-name evangelicals like Dr. James Dobson to advocate on her behalf. And of course Bush always had "trust me" to fall back on. Even a perceived lack of judicial "heft" wouldn't hurt if the goal was simply to appoint a conservative/pro-life activist; after all, she wouldn't have to write an opinion that would stand up to scrutiny; she should simply sign on to any pro-life opinion that Justices Roberts, Scalia, or Thomas may write. Even with all of the winking at the pro-life lobby, Bush couldn't sell conservatives (even pro-life conservatives) on the nomination. Why? She simply wasn't up to the task of serving on the Supreme Court.

(Note: I realize that "conservative" doesn't always mean "pro-life," but the court battles for years have primarily hinged on the abortion issue, which is why I use the terms fairly interchangeably here.)
5.1.2006 3:01pm
A. Rickey (mail) (www):
Medis:
First, when someone supporting Miers's nomination chose to state such a fact as part of defending her qualifications in the face of widespread criticism, that choice implied that there was a high enough proportion of these sexist/elitist/etc. critics such that noting this fact would actually undermine those criticisms in general.

Give me a break. Since when is Anne Coulter not a large enough proportion of the conservative audience to be worth a response? Besides, "my gods, they're calling us elitist" complaints were typically ridiculously histrionic.

Take, for instance, Professor Bainbridge, one of the larger voices on the right-wing blogosphere. His whine? "Laura Bush's charge that we're all just a bunch of sexist pigs. (I wonder why Laura forgot the elitist talking point.)"

What was the "charge" he was talking about? On the Today show: "Asked by host Matt Lauer if sexism might be playing a role in the Miers controversy, [the First Lady] said, "It's possible. I think that's possible. . . . I think people are not looking at her accomplishments."

From "it's possible" to "we're all just a bunch of sexist pigs." But obviously, it was only a minority represented by top bloggers and massively-watched pundits.

So let's see: I've got Professor Bainbridge (one of the top 20 or so legal bloggers out there) and Anne Coulter. What exactly does it take to meet your "high proportion" test?

Rather, one has to explain why Miers's defenders sometimes chose this tactic, and I think that choice is really what got some people in the "right-wing blogosphere" riled up.

Sorry, but that's a crock. Pointing out that some of the criticism of her was elitist and sexist wasn't just a "tactic." It was a response to what we saw as attacks that were.... oh, wait a second... yes, that would be vitriolic, unfair and shameful. It's appropriate to point that out even if there are good substantive criticisms of Miers. People of good conscience, whatever their opinion, should be affronted by such behavior.

I was perfectly willing to be convinced that Miers wasn't qualified. What I was never presented with was evidence. Rather, most arguments boiled down to a lack of something, usually something I didn't see as very important. (I couldn't have cared less that she didn't go to Harvard and wasn't a judge. She seemed like a quite talented practitioner, and I have quite a lot of respect for them.) Had she done badly at the Senate hearings, I would have changed my mind.

But my respect for many of my conservative colleagues diminished rapidly due to the "wolf pack" mentality that was shameful and beyond the bounds of decency. There were good critics of Miers who--while making reasonable arguments--took pains to distance themselves from the jackals. But the jackals were there, they had big names, and it is perfectly reasonable for those of us who liked the Miers nomination to take umbrage at them.
5.1.2006 3:34pm
SimonD (www):
Stephen F:
I don't think we're in disagreement. My point was precisely that "a perceived lack of judicial 'heft' wouldn't hurt" - with the conservative base - "if the goal was simply to appoint a conservative/pro-life activist." The problem was that there was nothing that Miers could offer to demonstrate that she was a conservative. It was the fact that she couldn't please anyone that sunk it. Conservatives might have been willing to support someone light on qualification but who was one of our own, but (as others have pointed out) after Kennedy and Souter, certainly weren't going to support someone who was both unqualified and who showed no signs of being one of our own. You can confirm a Justice without the base being too happy about it if that nominee is superbly qualified, and on balance, looks conservative, because the qualifications reduce the importance of support from the base. I had - still have - concerns about Roberts, but the man is so blindingly obviously a fit for the Chief Justiceship that I have to reluctantly agree with Ann Althouse that it is mindblowing that anyone had the nerve to vote no on him. Even if the base had been unified against him, I think Roberts would still have been confirmed. If Miers had possessed half of Roberts' credentials, she might have survived. But it was the lack of both credibility and credentials, as I see it, that guaranteed that neither of the two groups who had to be at least happy or ideally placated with satisfied.
5.1.2006 3:44pm
HLSbertarian (mail):
A. Rickey said: "I was perfectly willing to be convinced that Miers wasn't qualified. What I was never presented with was evidence. Rather, most arguments boiled down to a lack of something, usually something I didn't see as very important. (I couldn't have cared less that she didn't go to Harvard and wasn't a judge. She seemed like a quite talented practitioner, and I have quite a lot of respect for them.)"

I guess one of the issues boils down to burden of proof. Many of the nomination's opponents, myself included, didn't feel that the onus should be on us to show a lack of qualification. When we're talking about a position for which 99% of lawyers are unqualified (even a high percentage of "talented practiioner[s]"), I think it's pretty reasonable for the nominee's supporters to bear some initial burden.

A. Rickey said: "Had she done badly at the Senate hearings, I would have changed my mind."

As I recall, the nomination really started to tank when it became obvious that this was inevitable, as Miers' gaffes on questions leading up to the hearings came out.
5.1.2006 4:28pm
Hans Bader (mail):
What killed Miers' nomination may have been the discovery of the text of her speech to the Executive Women of Dallas, which expressly and openly praised judicial activism in ways that few if any sitting Supreme Court justices have done prior to confirmation, and lauded the idea of the judiciary forcing social change in areas where the legislature decline to do so (specifically, the Texas Supreme Court's school finance decisions).

That didn't just anger social conservatives. It also enraged some big Republican donors, who were not socially conservative, but libertarian-leaning and socially-moderate. They, too, demanded that Miers be withdrawn.

It may have been Miers' own words that killed her nomination.
5.1.2006 5:46pm
Medis:
Stephen F.,

As I recall, though, a lot of pro-life commentators did not trust Bush's wink-and-nod assurances about Miers. So, the fact that his wink-and-nod campaign failed does not necessarily mean that her lack of qualifications was the central issue for such people.

A. Rickey,

I recall people specifically criticizing Coulter for being an elitist, and I don't think that bothered many (maybe any) critics of Miers. But when people implied that Coulter was somehow representative of criticisms of Miers's qualifications in general, then there was a strong negative reaction.

And again, it is not a defense to point out that some prominent people were being sexist and/or elitist, precisely because Miers's defenders could have and did respond specifically to those people. Instead, you have to explain why Miers's defenders chose to generalize this argument, and I don't see yet how you can justify their doing that.

Incidentally, I have no desire to rehash the Laura-Lauer episode. But one thing worth remembering is that it happened after Ed Gillespie tried out the elitism/sexism talking point in a closed-door session, and I think a lot of people saw Laura as simply being on message that day.

And to bring this conversation back to a prior point, I think one of the ironies of this episode is that people who are usually pro-Administration probably understand how the Administration's talking points mechanism works as well as anyone. Therefore, they knew when it was being used against them, and for the same reason they aren't going to buy the usual defenses (eg, the "but if you parse what we said carefully we actually qualified the statement and therefore didn't necessarily mean to criticize you specifically" defense that you are attempting here).

And so I again think one of the things we learned here is that an attack mechanism designed for opposition politics does not work well--and may even backfire--when the criticisms are coming from within the communities which are usually supportive.
5.1.2006 5:47pm
jgshapiro (mail):
It wasn't that long ago that nominees had no judicial experience whatsoever before they were nominated to SCOTUS. White, Powell and Rehnquist to take 3 recent examples. Virtually the entire Brown court, to take a more distant (52 years) example. Yes, they all went to Harvard or Yale, but was that the missing credential for Miers?

Powell's main credential was having been president of the ABA. He had never held significant political office, been a judge or a recognized constitutional scholar. He was just well connected and from a desireable demographic at the time (the South). Had Miers become ABA president rather than just Texas Bar president, would that have been enough?

I just don't buy that the problem was that Miers was a moron. First of all, she can't be that much of a moron if she is white house counsel, or a partner at a major firm. Second, other justices, such as Blackmun and Burger, were hardly intellectual heavyweights, and neither encountered much opposition. Blackmun had a Harvard degree and a circuit courtship. Burger had white hair, a deep baritone and a circuit courtship. That's really all you need today - not "intellectual heft" - however you measure that - but simply 3-5 years (less recently) on any circuit court other than the federal circuit. You could confirm a turtle to SCOTUS if it first spent 3 years as a judge on the DC circuit.

The problem is that there's no objective criteria for what constitutes a qualified nominee to the Supreme Court. Most people agree that Roberts qualifies, but then again, Bork had even more boxes checked when he got rejected by the largest margin of any nominee ever. Babbitt (governor, cabinet secretary) was as qualified as Powell, but that didn't stop Orin Hatch from telling Clinton that Babbitt was unconfirmable.

Miers wasn't the most qualified nominee ever, but she wasn't the least qualified either. She got rejected because of her comments on abortion and school finance and because the White House badly mishandled her nomination. Probably a good thing in the long run, but hardly an example of the process working well (except maybe by accident).
5.2.2006 1:09am
Medis:
jgshapiro,

I actually think a good case could be made that Miers would have been the least qualified Justice since the 19th Century. I don't think we need to rehash this whole issue, but I would note White had been Deputy Attorney General (and yes, it didn't hurt that he had been a Rhodes Scholar and #1 in his class at Yale Law). Rehnquist had been head of the OLC (and again, was Class Valedictorian at Stanford).

Powell is perhaps the closest case, but not only was he credited with an unusually productive tenure as President of the ABA, but he was also a nationally-recognized trial lawyer. I believe, in fact, that he was a Fellow of the American College of Trial Lawyers, an extremely high honor (eg, the membership, I believe, was limited to no more than 1% of the bar of each state, and required at least 15 years of practice).

The fact is that people indeed thought Miers was merely what you (falsely) claimed Powell was--"just well connected and from a desireable demographic." And I think that rightly does not constitute adequate qualifications for the Supreme Court.
5.2.2006 9:11am
jgshapiro (mail):
Medis:

I don't really want to defend Miers. I think she was a bad pick. But I don't think she was an unqualified pick based on what criteria has been used in the past.

As far as Powell goes, I don't buy the distinction between a nationally recognized trial lawyer and the White House counsel. Indeed, I submit that any White House counsel would be infinitely more familiar with the issues that would likely crop up at SCOTUS than a work-a-day trial lawyer (even a very good one).

Being a Fellow of the ACTL does not make you qualified to be a SCOTUS justice. Neither does being president of the ABA. Neither does combining those credentials. At least, it doesn't make you any more qualified than being WH counsel, a state bar president and managing partner at a major firm.

As for the 19th century question, I don't know enough about the early 20th century justices to comment, but I seem to recall that Truman's appointees were pretty lame. I wasn't particularly impressed with Goldberg's or Fortas' qualifications either.
5.2.2006 7:38pm
Online-Casino-Games (mail) (www):
Well Well .........who is not in Bush's pocket?!
5.9.2006 5:44pm