Q&A on Miers' Qualifications
By Dan McLaughlin Posted in User Blogs — Comments (42) / Email this page » / Leave a comment »
Promoted from the diaries by Erick.
Let's do a little Q&A to tease out my thoughts on Harriet Miers' qualifications:
Read on . . . Am I supporting or opposing confirmation of Miers?
For the moment, neither. As should be clear from my posts on this issue, I've been disappointed in the nomination, and I have serious concerns that might lead me to join the growing coalition of pundits and bloggers calling for the withdrawal or defeat of her nomination. But I could still be convinced that she has the right stuff to be a good Supreme Court Justice. For the moment, count me among the "show me" coalition.
Is Miers an unqualified hack?
Don't be ridiculous. Go read Beldar, who has been leading the effort to get the facts out in defense of Miers. This isn't Michael Brown here; Miers is a tremendously accomplished person. She had a long and successful career as a commercial litigator, representing numerous blue-chip clients and eventually being elected the managing partner of a 200+ lawyer firm and seeing it through a merger with another firm of similar size (Beldar well explains what this involves). She was also the president of the State Bar of Texas; as Beldar points out, membership in the State Bar is mandatory in Texas, and the bar and its presidency is a big deal within the state, even aside from the role it gave Miers in the ABA. And, of course, she's been a close advisor to the president for five years and White House Counsel for the past year. The staff secretary and White House Counsel jobs may not be glamorous, but they involve endless grueling hours; these are not jobs you give to a drinking buddy of the president. Miers' other experiences, heading the Texas Lottery Commission and being elected to the Dallas City Council, aren't big deals in political terms, but both involved real responsibility, and she juggled them while maintaining a full schedule as a practicing lawyer. And all this is particularly impressive when you consider that she was the first woman at her firm and, by all accounts, not someone who entered the profession with a lot of family or other connections.
So, yes, Miers has had an impressive career. She's hard-working and competent; she's unquestionably well-qualified to head a Cabinet department and clearly well-suited to be a district judge; and I wouldn't bat an eye if Bush appointed her to sit on a federal Court of Appeals. But the Supreme Court is different, and I do have real concerns that we haven't been given an adequate basis to conclude that Miers is qualified for a life-tenured position on a Court from which there is no appeal.
Aren't the objections to Miers just elitism?
First of all, if being an elitist means demanding excellence, I plead guilty. The "elitism" charge, to the extent it is backed up by any reasoning, comes from two quarters. Hugh Hewitt has argued that it's unnecessary to have Justices who have extensive constitutional law backgrounds, because Con Law isn't that hard; I address that below. And Beldar argues that people who sneer at Miers' resume are using an unduly constricted view of what experiences make up excellence in law practice - that there are plenty of great lawyers in private practice who didn't go to Harvard or Yale and haven't written law review articles.
I'd agree with that, in the abstract, but the debate here isn't about commercial litigators in the abstract, it's about one particular lawyer.
Let's make this clear:
I'm not bothered by the fact that Miers didn't go to an elite law school.
I'm not bothered by the fact that Miers didn't clerk for a prestigious judge.
I'm not bothered by the fact that Miers has never been a judge herself.
I'm not bothered by the fact that Miers has never written or said anything persuasive in public about the Constitution.
I'm not bothered by the fact that Miers' name shows up as counsel in barely more published opinions on Westlaw than mine, in three times as many years in practice.
I'm not bothered by the fact that Miers has, as far as I can tell, spent the vast majority of her time over the past decade away from the courtroom, doing things besides litigation.
But I am bothered quite a bit by all of those facts when taken together, and it's hard to think of too many examples of good Justices about whom all of those things were true. That's the source of unease here about Miers' qualifications - it's not one thing, it's the whole package taken together.
Doesn't Miers' experience as a successful commercial litigator qualify her for the Supreme Court?
This has been one of Beldar's big themes, but I just can't agree with him. As a securities and commercial litigator myself, of course, I have great respect for the complexity of a lot of commercial practice. And as I've stressed before, having a Justice experienced in practicing law at the ground level is a great thing. But just saying that she was a success in private practice doesn't answer the core question about her qualifications.
Beldar quotes people saying Miers was/is a sharp lawyer, good with juries and cool before judges. But what kind of sharp lawyer? You see, there are really three distinct skill sets involved in being a successful commercial litigator - being a "law" person, able to spot legal weaknesses in an adversary's position, make sense of complex or conflicting caselaw and assemble clear and concise arguments; being a "fact" person, good with live witnesses and juries; and being a good negotiator, skilled with the give and take that makes up the discovery and settlement processes.
But there are certainly plenty of people who succeeed as litigators without mastering all three. Any lawyer can tell you that they've been in a case with lawyers - as adversaries or co-counsel - who had big names, long track records of success, and big bank accounts, and discovered that their briefs or their arguments in court were sloppily reasoned and poorly presented.
We know Miers is said to be a good "fact" lawyer; the president and others have marveled at her skills in deposing witnesses. And the fact that she was named managing partner of her firm strongly testifies to her skills as a negotiator. But what we lack is proof of her skill at the legal reasoning and persuasion. A major part of a Supreme Court Justice's job is persuasion - persuading other Justices, persuading lower courts (who will decide how broadly or narrowly to read an opinion), persuading future Justices deciding to extend or overrule precedents. Where's the beef?
If Miers had been a judge or academic (or blogger) for ten years, we could read her stuff for ourselves and judge. And if she was a brilliant appellate advocate like John Roberts, we'd be hearing the same stories we heard about Roberts: his brilliance at oral advocacy, his ability to grasp complex cases with minimal preparation time, examples of great arguments he presented. But the simple fact that she's won a handful of complicated cases in 30+ years and moved up the professional ladder isn't proof enough by itself. I'm waiting for more.
Ultimately, where Beldar and I disagree is that I believe that not all successful attorneys who are good at trying cases and taking depositions are necessarily, simply by that fact, cut out for work as an appellate judge, any more than every appellate specialist is cut out to try cases. The best people can do both, yes, but that doesn't mean the skills involved are automatically transferrable.
That's why I would ask if we can learn more about Miers' private practice. Has she handled a large number of cases presenting complex legal issues, like nationwide class actions or antitrust cases? Was she regarded by colleagues and peers as an expert in partisular areas of the law - i.e., was she interested in doing the work of making sense of bodies of law and keeping up on them and how they play out in different fact settings, rather than just grabbing the cases that help your position in today's case and then going her merry way? We don't know.
See here and here for more on Miers as a writer. More on Miers here (via Orin Kerr), here, here, here, and here.
I'll agree that the "totality of the circumstances" regarding Miers's qualificiations is the proper test of her qualifications. I won't however, agree that where she went to law school or where she clerked thirty years ago are remotely relevant or should be considered as "factors." Her experience and abilities either qualify her for the Supreme Court or they don't, regardless of whether she went to Harvard or Houston, or clerked for Judge Sentelle or Shaw.
Yesterday Justice Scalia was on CNBC and Professor Lino Graglia was on Hugh's show. Both expressed being an originalist is beleiveing in democracy. Many on the serious issues today should be settled by the people not by nine justices. Very simple point and I believe the most important, do we beleive Harriet Meirs will be a judge that lets the people decide.
Also Professor Graglia defends Hugh's belief that Con Law is not difficult. Which I beleive much of the opposition against Meirs being qualified is that she has zero experience in Con Law.
See Hugh's conversation with John Fund where Hugh brings up a interesting point that SCOTUS Judges who have come DC government have not been conservative disappointments. ie. (Scalia, Rehnquist, Thomas, and Roberts) Though I beleive too early to include Roberts in that group.
I'm certainly a proponent - as you can see from my blog and my writings here - of a presumption in favor of democracy whe you're not dealing with an express constitutional command, but the notion that the whole body of constitutional law can be reduced to a couple of hoary maxims you can write on a Post-It Note is nonsense, and nonsense that's thoroughly belied by the rigor and consistency of Scalia's own writings. (I'm not a huge fan of Graglia, frankly - I can't say I've read much of his scholarly writings, but I've seen him speak at Federalist Society events and found him a bit too vague and general. Also, I think Hugh is overselling the extent of his endorsement).
Also, the Court's work is more than just the constitution. I want to have a little more assurance that both the constitutional and non-constitutional parts of the job are done by someone who's sharp enough to turn out opinions that aren't full of the kind of muddle-headed ambiguities that drive lawyers to distraction.
For all the folks buying into Hugh's approach, I have one question: is your favorite Justice Hugo Black? Because that's who you guys are starting to sound like.
If Miers had those kind of credentials, I might be less concerned about the more recent absences from her resume. That's all I'm saying.
that decries elitism and cites Bork and others on originalist view not requiring what much of what anti miers critics demand.
When you boil it all down, the DC critics have supported non paper trail, non judges that THEY KNOW AND TRUST FROM PERSONAL CONTACT OR ASSURANCES FROM OTHERS THEY KNOW WITH PERSONAL KNOWLEDGE.
I think what happened was their knee jerk shocked reaction after the stealth Roberts. After they trashed Miers in public so soon its now their pride before party or the movement. The grass roots movement trusts bush.
Most of the expertise they are requiring are activist doctrines that Thomas and Scalia eschew.
I am a Bork discipled lawyer myself and understand his disappointment that one of his KNOWN disciples didn't get picked but his books argue that originalism is relatively simple to apply. Its the character not to be tempted that is paramount.
Bush had 15 years to stidy her Miers' character and Bush has character in droves and a 100% record in picking originalist lawyers.
The DC movement cant be president and will always have to trust someone.
Bush deserves it now. The attacks on Bush risk making him a carter.
The senate gave Ginsberg 96 votes.
Attacking Bush and defeating Miers has no upside.
Plus, I expect that we will get the fight they want with the lib/dems EVEN with Miers.
Why should I "trust" Bush. Yeah, he named some great judges to lower courts, but most of that was in the context of an upcoming re-election campaign. Harriet Meirs has spent most of the past two decades loyaly serving President Bush. It would have been political suicide to recommend anything other than staunch conervatives. So the question is, were her reconmendations motivated by devotion to the cause, or devotion to the man? Nothing in her past demonstrates any commitment to conservative judicial principles, just a blind devotion to President Bush. But we should trust Bush, because his views on Constitutional Law are so rock solid, right? Like how he bravely stood with us in the fight against affirmative action? Or when he took the principled postion to veto the blatantly unconstitutional McCain-Feingold? Or when, faced with the opportunity to select from a pool of over 20 highly qualified, well respected conservative jurists, lawyers, or politicians, to replace the swing vote on the Supreme Court he gives us all the finger and selects his personal lawyer. No thanks. My loyalty is to the cause, not to a man.
By no way did I mean to say that addressing Con Law can be done so simply. I just found Scalia's response to a question breaks through to a simple point.
I agree I think Hugh is overselling Graglia's endorsement, but I found it telling that he validated some of Hugh's beliefs that the lack of experience in Con Law does not make her unqualified.
I think we all would like a judge who could write great opinions that can be reviewed and debated. Many of the opinions of Scalia even when in the minority are outstanding, but I think most people agree Thomas lacks the ability Scalia has in writing opinions. I have no problems with Thomas and if Harriet Meirs ends up being similar to Thomas I will be happy with that.
Good questions, reasonably posed.
I note that former Senator Coats of Indiana, a solid conservative who is sheparding Miers through the confirmation process, gave an interview this week to WDAY Radio in Fargo, N.D., the Hottalk show (scroll down). I think highly of Coats, but will say he brought little if anything new to the discussion of qualifications, which, admittedly, is not the goal of an appearance on a regional talk show. Anyway, an excerpt:
Coates: Well, my answer to that is that, you have a number of people throughout history have brought a number of different backgrounds. Were they the most qualified person in the United States? Maybe they were, but how do you measure that? What I think that Harriet Miers brings to the court is diversity, not only from the standpoint that she is a woman, but from the standpoint that she's had a different background. She's succeeded in everything that she has done. She's risen to the top in everything that she's done. But just because she hasn't served as an appellate court judge or within the judicial system, doesn't mean that she's not qualified for the Supreme Court. We have had a number of distinguished associate justices, and the latest of which is the Chief Justice William Rehnquist, that didn't have judicial background. Byron "Whizzer" White didn't have a judicial background, but yet they were outstanding justices, and one was a chief justice, and so I don't think that measuring who qualifies and who isn't qualified on the basis of what the stereotype ought to be as presented by people who view that court from more of an elitist standpoint really represents what America needs on the Supreme Court.
Take that, you elitist slugs.
More seriously, the argument that she brings other experiences, those from outside the ivory tower and seat behind bullet-proofed judicial bench, carries great weight with me. But it does invite the kind of further questions that Crank raises above.
P.S. I understand this Coats transcript was a rush job, so there are typos in it. Consider it a demotic expression of Middle America.
always have to trust a president. Or tear down the presidents they elect and get more "qualified" Ginsbergs.
deserves trust on this issue, they will wait in vain for a president THEY can trust, and defer to clintons to have their choice since they got elected.
THEY are not the movement.
They happen to be on TV.
Lots of movement members have lists.
But you responding to his post about a Ginsburg being forced to withdraw.
You missed my hint - here's the other thread where I've inserted it.
http://www.redstate.org/comments/2005/10/11/17441/620/19#19
It's Douglas Ginsburg.
(But the thought of Alan on the court is amusingly psychedelic! Alas, he's no longer with us.)
Alan was the first that came to mind.
Although wasn't it Douglas who had to withdraw because of his use of, errr, psychedelic substances in his misspent youth?
I still have not heard anything to disuade me of the rightness of this observation from Krauthammer.
If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her.
I would not use the word "crony", but I just don't see anything remarkable about this nominee other than the name of her boss of the last ten years. No list, not one, long or short, of strong, qualified, conservative candidates from which the President could have chosen a nominee would have included Harriet Miers had she not been employed by the man making the nomination.
I just cannot see the justification for this choice.
It was Pot, and he used it while a Harvard law prof. Whether that's a "youthful indiscretion" or a disqualifying sin is pretty much an individual opinion, but it is small beer considering certain personal disclosures since then.
If the worst thing a person has done in their life is smoke pot they are probably a pretty good person.
It was a different world, long ago and far away and not resembling the present. Oh well.
Meirs might be the next Scalia. But might is the opperative word. She could be the next Souter for all we know. All we have to base our decision on is the word or a guy who thinks affirmative action is okay dokey and restrictions on political speech are no biggie. The outrage about this isn't so much that we know Meirs will be terrible, because we don't. It is the fact that we finally have control of the Presidency, a 56 seat majority in the Senate, and an open seat of a swing justice. We had a list of probably 20-50 people that most of us would have taken in a heartbeat. And Bush still screws it up. Then he has the audacity to say "trust me".
that attack him. I would expect any future nominees from kristol's list.
"We" had a list...
Lots of we's out here that elected Bush. And we elected Bush, and re-elected after Pryor, Owen, JRB fight. Bush has never backed a paper taitrail betrayer
kristol has, thrice.
We'll always have to trust someone.
I really don't care about Bill Kristol. I'm a Goldwater Republican and Kristol's politics hold no appeal to me. The notion that only the Conservative Washington social circuit is upset about this nomination just isn't true. Bush has managed to piss a significant percentage off nearly every element of the base. Even if Meirs is everythign you claim her to be (and we have no evidence to suggest that she is) this nomination still makes no sense. There were dozens of nominees who Bush could have nominated who could have been justified with more than the personal assurance of GWB and a wink nod from James Dobson (and not that I give two craps what Dobson thinks anyway, but even that seems to be based on nothing more than the personal assurance of Karl Rove). Bush is not Jesus Christ. He was obligated to give us something other than blind faith in asking us to support the most important decision of the rest of his Presidency.
what Dobson thinks" How many people listen to you as compared to him? I think the WH values his support more than any poster on this site. True?
for trusting his own lawyer over paper trail favorites of folk's whose previous paper trail favorites betrayed his daddy and reagan and
THE MOVEMENT.
Barry was common sense smart that way.
Bush has managed to piss a significant percentage off nearly every element of the base.
Care to back that up?
Look around the comments sections of the right wing blogoshpere, not to mention the Conservative vehicles themselves. The posts on this blog are at least 40% negative. Confirmthem.com is well over 50% negative. Lucciane and FreeRepublic are both around 50% negative. More libertarian sites like Reason's hit and run are closer to 99% negative. And these are Bush's friends. This decision was a complete and utter disaster.
your statement was based on your own perception.
Thanks for the clarity.
We'll see when people have digested this story, esp. by the time of the hearings.
"To announce that there must be no criticism of the president, or that we are to stand by the president right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public." [ Theodore Roosevelt ]
And if, after 5 years of sterling judicial appts we dont at least trust Bush unless and until we know we've been betrayed then we will soon get to watch a democrat senate majority heed Teddy's call and then in 2008 we can as well!
W has done nothing wrong by my movement far right conservatives, except hurt the feelings of some presumptuous DC pundits.
see links
http://www.americanthinker.com/articles.php?article_id=4892
Here's a link to an article published in the Boston Globe. It details a strategy under consideration by conservatives to embarrass and derail Miers' nomination. What I find interesting, is that there is no mention of any Democrat opposition to her.
And think about the kind of people who are and who are not on the court, the more comfortable I am with her nomination.
The more I think about the state of the Senate, and the problems of Frist, and the weakness of the actual majority, the more I see the wisdom of her nomination. If the dems get to prove they can use the veto now, they will use it continuously. [thanks, John McCain and George Will]
My bet is if this, after the dust settles, goes smoothly good things will happen: more AJs will retire.
The one critique that could be made on W's process in this, imho is this:
After Rehnquist passed, he should have moved Scalia to CJ, and nominated another openly conservative to his seat. The problem is that after Roberts humiliated Schumer, Ted, etc., the word was pretty clear that anyone was going to get get borked and likely filibustered, breaking the gang's filibuster suppression.
I think W made a tough choice, and I think Harriet is taking one for the team: she does not need this ration of poop. Neither does W.
Miers is a "stealth candidate", with no paper trail, and no judicial experience.
It's not entirely unprecendented, but it is certainly unusual, and it comes on the heels of the Roberts nomination, where he too had a very slender public background (although there was the French Fry case, where he ruled a law constitutional but stupid -- which is very reassuring in its own way).
This undermines the Senate's constitutional obligation of advise and consent -- in the end, the Senators are being forced to roll the dice and put unknown quantities on the court.
Senate approval should be the point where the judiciary is responsive to the will of the people, but right now we have is a mockery of how the process should go: An unknown, unknowable candidate suggested by Durbin (who winks to his side to say that she's really one of them), and nominated by Bush (who winks to his side to say that she's really one of them). And in the end, the hearings will be determined by whether she paid social security taxes for the household help. This is just plain sad.
I hope she is voted down.
Some would say the mockery of the process is when legitimate nominess are poked and proded, smeared and mis-quoted, or held in committe indefinitely by unscrupulous senators who are not the least bit interested in objective hearings, but their own political agendas.
Until procedural repurcussion is made available, and constituents choose to remember, come election time, the outright failures of those previously elected, this process will continue and stealth nominees will be the status quo. IMHO.
On a side note, I wonder if the President now regrets his efforts to get Specter re-elected.
I see that the writers believe;
A. You shouldn't disagree with Bush, ever.
B. If you do disagree with anything he does, including the miers fiasco, it will split the right.
C. That it doesn't matter if miers is qualified, we should just trust gw as our fearless leader.
D. That it is only "elitist" conservatives that disagree with the miers nomination.
I'll take none of the above as my choice for what is true here.
There are no written qualifications for appointment nor degree of measurement of strength of any particular perceived qualification. Matching resumes to subsequent performance as a justice is very much in the eye of the beholder and, consequently comparitive resume analysis is of limited value. Absent a singular, identifiable disqualifier, or perhaps multiple disqualifiers, a nominee should be confirmed in keeping with the Executive's perogitive in making the nomination.