Harriet Miers: Just Say No Posted by: Dale Franks
on Tuesday, October 04, 2005
I'm wondering how much crack you have to smoke to produce the article that Thomas Lifson wrote at The American Thinker about Harriet Miers.
This president understands small group dynamics in a way that few if any of his predecessors ever have. Perhaps this is because he was educated at Harvard Business School in a legendary course then-called Human Behavior in Organizations. The Olympian Cass Gilbert-designed temple/courtroom/offices of the Supreme Court obscure the fact that it is a small group, subject to very human considerations in its operations. Switching two out of nine members in a small group has the potential to entirely alter the way it operates. Because so much of managerial work consists of getting groups of people to work effectively, Harvard Business School lavishes an extraordinary amount of attention on the subject.
One of the lessons the President learned at Harvard was the way in which members of small groups assume different roles in their operation, each of which separate roles can influence the overall function. The new Chief Justice is a man of unquestioned brilliance, as well as cordial disposition. He will be able to lead the other Justices through his intellect and knowledge of the law. Having ensured that the Court’s formal leader meets the traditional and obvious qualities of a Justice, and is a man who indeed embodies the norms all Justices feel they must follow, there is room for attending to other important roles in group process...
Having proven herself capable of charming the likes of Harry Reid, leader of the Senate Democrats, is there much room for doubt that Harriet Miers is capable of opening up opponents emotionally to hear and actually consider as potentially worthwhile the views of those they might presume to be their enemies?
This is some sort of obtuse satire, right? The Miers pick is a reflection of this president's deep, fundamental knowledge of small group dymanics?
I had to read this line a few times, too, just to grasp the full import of it. Let's take a second look.
Having ensured that the Court’s formal leader meets the traditional and obvious qualities of a Justice, and is a man who indeed embodies the norms all Justices feel they must follow, there is room for attending to other important roles in group process.
Translation: Having chosen one competent justice, the president now feels comfortable in nominating an incompetent but genial non-entity to the court, because...well..she's a charmer.
Perhaps, though, my reading of the passage is overly tendentious.
If conservatives don’t sabotage his choice, Harriet Miers could make an enormous contribution toward building Court majorities for interpretations of the Constitution faithful to the actual wording of the document.
And, how, precisely, does Mr. Lifson know this? Does he have access to some hidden trove of law review articles by Ms. Miers? Has he come across a cache of the lecture notes for the classes in constitutional law she teaches incognito at George Washington University? Has he used his amazing mental powers to peer into her mind? If not, then he cannot possibly know that his conclusion is true.
Developing a consistent theory of Constitutional jurisprudence is not something working lawyers just come up with in their spare time. It is usually the result of years of concentrated study and experience. Those who study it closely usually end up penning volumes of Law Review Articles. They have publicly available expositions that they have published that explain the nuances of their reading of the 1st, 2nd, 4th, 5th, 9th, 10th, and 14th Amendments. They often serve as tenured law professors, or federal judges. Yet, as far as I can tell, Ms. Miers has done none of these things.
Let's play a little game. Pick a judge. Oh, how about, Alex Kozinski? What does he think about the 4th Amendment and the privacy considerations that arise therefrom? If you don't know right off the top of your head, you can find out easily. He's a federal judge. You can read his opinions simply by going to the 9th Circuit's web site. Do you prefer a non-judge? OK. Lawrence Tribe. He's a got a whole section of Harvard's web site devoted to him.
Now, Ms. Miers may be an extraordinarily nice woman. But I can find nothing whatsoever in her record that leads me to believe that she's given a single moment's thought to any of the thorny constitutional issues about which she, as a member of the Supreme Court, will be expected to rule upon, mutatis mutandis ex cathedra, as it were. As far as I'm concerned, she's the single most unqualified nominee to the Supreme Court since Lyndon Johnson nominated his good friend Abe Fortas to the Court, for what appear to be reasons very similar to Mr. Bush's rationale for choosing Ms. Miers.
It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.
The wisdom of presumptive opposition to Miers' confirmation flows from the fact that constitutional reasoning is a talent—a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.
At this point, my default position on Ms. Miers is that she is not qualified to serve on the Supreme Court. And it's not because she graduated from SMU. It's not because she's a Washington outsider. It's because she doesn't appear to have done any of the intellectual groundwork on constitutional jurisprudence that we should expect from a lifetime appointee to the nation's highest bench. It is possible, I suppose, that her performance in the confirmation hearings will be so stellar, and so surprisingly erudite, that I will have to change my opinion.
I am not, however, sanguine about the possibility.
Dale; I seem to recall all that being said about a number of others who had no previous judicial experience....poeple whom you yorself listed, here in this blog if I’m not much mistake, in a recent update. The objections raised then are about as valid as they are now.
She is, unfortunately, going to be confirmed. Bush & Rove will twist the Republican senators’ arms and Democrats will figure that she is the best they’re going to get.
However, we can look forward to her opinions justifying voting for the administration’s legal positions whenever they are presented to the Court, no matter how specious, with continued reference to "deference" to the executive branch. Then we can watch an amusing 180 degree turn if a Democrat is elected President in 2008.
And, how, precisely, does Mr. Lifson know this? Does he have access to some hidden trove of law review articles by Ms. Miers? Has he come across a cache of the lecture notes for the classes in constitutional law she teaches incognito at George Washington University? Has he used his amazing mental powers to peer into her mind? If not, then he cannot possibly know that his conclusion is true.
By oddly similar reasoning, you cannot possibly know that his conclusion is false.
By oddly similar reasoning, you cannot possibly know that his conclusion is false.
Yes. That’s the whole problem: We don’t know. And we have no way to know, since she has no record from which to extrapolate that knowledge. That was, in fact, the key point of the post, which, oddly, seems to have slipped right past you.
I seem to recall all that being said about a number of others who had no previous judicial experience....poeple whom you yorself listed, here in this blog if I’m not much mistake, in a recent update.
Then you don’t recall things very well. In fact, you seem to be unable to read for comprehension, since I never stated that judicial experience was necessary. This is why I used the Lawrence Tribe example. Judicial experience is merely one possible necessary qualification.
So if we have a court that is packed with people who have years of constituional study it will yield "good" and "proper" results? An analysis of cases cases going back through the beginnings of the Republic (Dread Scott, "seperate but equal", there is a long list) will show your argument is specious. Even people who agree with R v. Wade agree that particular ruling is poor Constitional law.
So if we have a court that is packed with people who have years of constituional study it will yield "good" and "proper" results?
That may be the silliest argument seen on this blog since....well, since Bithead tried to use it a few weeks ago.
No, years of constitutional study do not guarantee "good" results on the Supreme Court any more than years of practice will guarantee a World Series Championship in baseball. The alternative, however, is not to staff the team with Babe Ruth Leaguers so you can "try something different!"
As I said in another thread, Jon; Consider the state of things in the White House for the last several years as regards the war on terror. Consider the number of questions that have come up with regards to the constitutionality of the actions of the White House within that war on terror.
Do you really consider it conceivable that a White House counsel at all involved with the process of guiding the White House through those political and constitutional minefields, as Meirs decidedly was, and is, could not have a good feel for a constructionist view of the constitution?
I discussed (and deplored) a variant of the same thinking as the article you’ve cited, on a in the comments on a thread yesterday. Bush’s "MBA" style of getting a team with varied strengths might be appropriate for picking his stuff, but it’s a silly way to pick Supreme Court justices.
It’s worth noting that someone can have years of intellectual investment in a subject without ever publishing. Outside of acedemia, this is probably the norm. However, the burden of proof is clearly on Miers.
There’s a large group of conservatives who believe in "plain language" interpretation of the constitution. What part of "shall not be infringed" is so hard to understand? And so on. I suspect Miers will be a satisfying choice to this crowd.
I’m just as happy that Bush doesn’t seem to be appointing anyone with "social conservative" credentials, focusing instead on constructionist credentials, since I’m not a social conservative. But this won’t play well to the base. The entire GOP has done nothing since the presidential election except appoint some innoffensive justices. As a libertarian, I’m never too offended by a government doing nothing, but again this can’t be making the base happy.
The 06 elections are going to be pretty painful for the GOP, I expect.
What’s so great about experience? The experience of the current sitting justices has only made them able to twist the meaning of "for public use" into "for increased tax revenue" and to re-interpret the interstate commerce clause to mean anything that has ever been sold across state lines whether or not the specific case before the court has an element of interstate commerce, not to mention that diversity has now been judged to hold a higher public interest than racial non-discrimination.
Wonderful. Let’s convince the President to nominate more candidates with that kind of experience.
I’ve been thinkibg about that aspect for most of the day; and the conclusion is revealing;
His problem is HE doesn’t know her. That’s pretty much the case across the board of the folks as are objecting to this nomination. Thus are the claims of ’unqualified’, unfounded. They may possibly be true, at least until disproven... but I consider the likelyhood that she is unqualified quite low, indeed.
It’s also true that I may be the nominee for the next available slot on the court. And that’s true until disproven. I consider the claims agaiust Miers to be on the same level of probability.
I disagree with Dale for saying the Will gets it exactly right.
The wisdom of presumptive opposition to Miers’ confirmation flows from the fact that constitutional reasoning is a talent—a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. I disagree with Dale for saying the Will gets it exactly right.
I don’t say that Will’s statement is incorrect. Applying it to the selection of a SCOTUS judge is what is incorrect. If it were correct, nominations would (logically) be limited, perhaps in the Constitution itself, to those who have evidence of the requisite years of practice and the intense interest. The selection method would then be a debate or similar test. The selection method requires only that the President make a nomination and that the Senate confirms it. Will, and Dale, by extension, is trying to project his idea of how the selection process should be conducted, which suggested process is inconsistent with how the Constitution says that it should be done. Not a good position for a strict constructionist type to take. Constitutional scholars are those who write the treatises that SCOTUS judges read to inform themselves. The skills required to be a scholar are not the same as those required to be a SCOTUS judge. At least that is what the Constitution says. I think. I have come to that conclusion from viewing the penumbra that surrounds the SCOTUS judge appointment provisions of the Constittion.
This shit from the right that Miers is unqualified or is not "conservative" enough is the same shit we have been hearing from the Democrats, except they said our picks were unqualified and TOO conservative.
Here’s the skinny: Bush has 55 votes in the Senate. 5 of these are moderates (pro-abortion) who will vote against a nominee who comes out against their precious Roe v. Wade. And we know that all 45 Democrats are beholden to the abortion lobby and will either oppose or filibuster.
Now, if Bush nominated a Luttig or Alito or some candidate with a paper trail, and that person loses, imagine the field day the liberal media would have with THAT defeat.
The Democrats and their William Bradford Reynolds/Robert Bork "do not tell us the truth" campaign which began in the 1980s has now come home to roost, full force. For a Republican to get someone through the Senate, they have to be a stealth candidate.
Miers is that candidate. For anyone on the right to call her any names or call her unqualified before the hearings is why Bush made this pick - because he expected this shit from Democrats, not his own party.
