October 19, 2005

Bork on Miers.

Robert Bork has a high-profile op-ed against Harriet Miers in the Wall Street Journal today (which a lot of people have already written about, but I should say that I went to it from this excellent post by Stephen Bainbridge).

Bork writes:
There is, to say the least, a heavy presumption that Ms. Miers, though undoubtedly possessed of many sterling qualities, is not qualified to be on the Supreme Court. It is not just that she has no known experience with constitutional law and no known opinions on judicial philosophy. It is worse than that. As president of the Texas Bar Association, she wrote columns for the association's journal. David Brooks of the New York Times examined those columns. He reports, with supporting examples, that the quality of her thought and writing demonstrates absolutely no "ability to write clearly and argue incisively."
Let me add this very precise observation I received in an email from an able judicial law clerk:
Can you read a two-page letter she wrote in 1995? It's on pages 13 and 14 of a collection of documents the New York Times released a while ago. You can easily access it by clicking [here] , scrolling down just a little bit, and clicking on pages 13 and 14. It should take no more than a few minutes.

I find the letter truly unbelievable. Not in substance; just in terms of grammar and general writing ability. I know that some bloggers and folks in the media have profiled Miers' writing (like the Brooks piece you blogged about), but I don't think anyone has said much about this letter. I mention it to you in particular because you have commented on the value of good prose in a Supreme Court Justice, and you appeared to have been pretty underwhelmed by the snippets of Miers' writing in the Brooks piece. Of course, you may not find it particularly noteworthy, but I suspect that you probably will.

[Althouse response: "Is that letter really written much worse than a typical federal judge's opinion? It's belabored and repetitious, but it's not embarrassingly bad, is it?"]

Hmmm... I admit that the average federal judge produces mostly unremarkable prose, but it's usually not in this league:

"For example, charging unconscionably high fees are prohibited..."

"Comparisons with other jurisdictions and the effect of any proposed rule has been historically painstakingly performed to ensure that our disciplinary rules adequately protected the public."

"The State Bar Act similarly recognizes that attorneys in this State are 'subject to the disciplinary and disability jurisdiction of the Supreme Court' and in its opening provisions emphasize 'the judicial department's powers under the constitution to regulate the practice of law'."

I could probably nit-pick at least six comma problems, the missing apostrophe ("in harms way"), and some other small stuff. Those would be forgivable if the letter were otherwise clear and well-written (wasn't Justice Jackson terrible at grammar?). But it isn't. Miers' writing, here and elsewhere, is characterized by run-on sentences ( e.g., the seven-line sentence in the final paragraph and the six-line sentence in the second paragraph) and clunky sentence structure. Sure, many other lawyers write like her, but they haven't been nominated to the Supreme Court.

Couldn't almost any Wisconsin 1L, presented with the bill in question, write a clearer two-page letter opposing it?
A harsh judgment, but I can't say it's wrong. Can you?

More Bork:
The administration's defense of the nomination is pathetic: Ms. Miers was a bar association president (a nonqualification for anyone familiar with the bureaucratic service that leads to such presidencies)...
That jibes with this post of mine from yesterday.

Bork again:
...she shares Mr. Bush's judicial philosophy (which seems to consist of bromides about "strict construction" and the like); and she is, as an evangelical Christian, deeply religious. That last, along with her contributions to pro-life causes, is designed to suggest that she does not like Roe v. Wade, though it certainly does not necessarily mean that she would vote to overturn that constitutional travesty.

There is a great deal more to constitutional law than hostility to Roe. Ms. Miers is reported to have endorsed affirmative action. That position, or its opposite, can be reconciled with Christian belief.
What??? It takes some nerve to say that. [ADDED: I misread that comment. In fact, I agree with the observation, as what I say next shows.] Jesus said: "So those who have the last place now will have the first place in the future, and those who have the first place now will have the last place in the future." (Read the whole parable.) I wouldn't presume to say that approves of affirmative action, but I'm truly mistrustful of anyone who would say it can't possibly support it.

More Bork:
Issues we cannot now identify or even imagine will come before the court in the next 20 years. Reliance upon religious faith tells us nothing about how a Justice Miers would rule. Only a commitment to originalism provides a solid foundation for constitutional adjudication. There is no sign that she has thought about, much less adopted, that philosophy of judging.
The point should be that a judge who would rule from religious belief is not a proper judge. It's not a matter of whether we would like the outcomes or not. It's a matter of the illegitimacy of accepting the role of judge and then operating from religious tenets rather than the law. In fact, I would think a genuinely religious person would perceive it as a sin to assume power in such a fraudulent way.

Bork goes on to demand that Bush's judicial nominees embrace originalism, which good conservatives have been cultivating ever since his own nomination went down in flames (for embracing originalism): "Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges." This is a huge overstatement, which John Roberts himself refuted at his hearings.

My take on Bork is that he does a good job of pointing out Miers's shortcomings, but his view of what makes a proper judge is too narrow. That said, I can see why hardcore conservatives like him feel betrayed by Bush's failure to nominate an originalist. I've said I think Bush made a campaign promise to do so, but maybe Bork doesn't agree. He thinks Bush's judicial philosophy amounts to nothing more than "bromides about 'strict construction' and the like." Maybe Bush didn't promise much of anything. Even so, he owes us excellence. He met the standard with Roberts, and then he stumbled miserably.

33 comments:

Dave said...

I admire you for giving Bork the semblance of seriousness.

I cannot take him seriously.

Lou Wainwright said...

Re: Affirmative Action

I read Bork's comment differently. He seems to be saying that Christian beliefs can be reconciled with either supporting OR opposing affirmative action. His point is that knowing she's an evangelical (all we know, basically) doesn't imply anything about how she may vote on an issue such as affirmative action.

Ann Althouse said...

Lou: You're right. I just caught that myself and have corrected it.

Ann Althouse said...

Dave: He gets a lot of play, and he's trying to dictate the one true method of interpretation. It's important to engage with him.

Dave said...

It's absolutely important to engage with him.

I can't though. His rigidity is stultifying and alienating.

You do a good service engaging with him because I've long been past the point at which I can take him seriously.

Defeatist? Perhaps. Honest? Absolutely.

ShadyCharacter said...

Dave writes: "I cannot take him seriously."

I interpret this to mean Dave disagrees with Bork's jurisprudence. I have to say, it's rather foolish to dismiss everyone you disagree with as not worth being taken seriously. If I've misinterpreted, please feel free to correct me Dave, however, your ad hominem doesn't give us much to go on, does it?

BTW, I don't take Dave seriously. :)

Dave said...

"I cannot take him seriously" is not an ad hominem attack.

I can't take Jim Carrey seriously either; you imply that I am attacking him as well.

Check your study of rhetoric again.

ShadyCharacter said...

Oh, I'm sorry Dave, you have already elaborated.

It's the "rigidity" that's both stultifying and alienating you. I'm now convinced. Bork is not a serioud intellectual, despite his writings, influence and reputation among those who agree and disagree with his theories. I didn't know he was rigid! My God, what an inconsequential "unserious" thinker he must be!

Elucidating principles of constitutional interpretation and then sticking to those principals, how pedestrian! If only he flitted back and forth between originalism and embracing the living constitution in all it's grooovy permutations he'd be an A-list intellectual...

ShadyCharacter said...

I think calling a public intellectual "unserious", without any basis for that analysis given is the definition of ad hominem.

Now Jim Carrey is a goofy comedian. Calling him "unserious" would be a compliment. However, if you called him staid, it'd be another story. It's all about context.

YAMB said...

If you're criticizing how lawyers write, you shouldn't say

Sure, many other lawyers write like HER

when the proper construction is "like she does," or even better, "as she does."

BTD_Venkat said...

Why doesn't someone track down some briefs authored by her.

John Althouse Cohen said...

[Althouse response: "Is that letter really written much worse than a typical federal judge's opinion? It's belabored and repetitious, but it's not embarrassingly bad, is it?"]

Each of the sentences the emailer quoted has a problem with subject-verb agreement, and one of them uses the wrong tense. I'd call that "embarrassingly bad."

tim maguire said...

As a former editor and current lawyer, I'd say her writing is not up to my standards. I would be embarrassed to write that badly, but these days "embarrassingly bad" is the norm.

I can't hold it against her particularly. I've seen a lot of very smart people do no better.

Hans Gruber said...
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Hans Gruber said...

I can understand how originalists reject the importance of one's religion in constitutional interpretation.

But I do not understand, given that you are not an originalist, how you could oppose a role for religion.

Does RBG have to forget she's a feminist and former ACLU attorney? How is religion any different? Religion is a part of her moral philosophy, is it really that objectionable if one accepts that a judge's personal opinions have a role?

My point is this: I don't think you would say someone should disregard their personal judgments and morals if they were secular personal judgments and morals. Would you? Would it be wrong to sell RBG by pointing to her commitment to feminism? Would it wrong for her to decide cases at least in part by her commitment to feminism?

neo-neocon said...

I'm not sure how well most judges write, but I've worked as a science editor at times. Scientists are renowned for their ability to think logically and to reason. But I was astounded at how poorly many of them seemed to write--and I'm not just talking about grammar, either, I'm talking about clarity of thought expressed in the written word. And yet there is no doubt they were excellent thinkers.

In addition, many have commented on the fact that some of the greatest literary lights around (a certain recent Nobel prizewinner for literature comes to mind) can't think.

As a sometime writer, I like to think that good writing and good thinking go hand in hand. But there's a great deal of evidence out there that says they don't.

Have you ever seen John F. Kennedy's letters or notes in the originals? He was a profoundly dreadful speller. Not sure whether that has a bit of significance.

I'd be much more upset by errors in thinking and reasoning ability than errors in grammar and/or spelling, myself.

SippicanCottage said...
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Jack said...

neo: The difference between scientists and judges is that a scientist produces something besides words, but a judge does not. If a judge cannot communicate her thoughts clearly, it scarcely matters how profound they may be. And lack of clarity, especially at the level of the Supreme Court, can have disastrous effects on future generations of lawyers and judges who will be unable to interpret the decisions.

Simon said...

As it seems to me Robert Bork has been a hero to the conservative legal movement for over twenty years, and a cause celebre of the GOP since his unceremonious rejection by a Senate controlled by 55 democrats. Indeed, it's possible to construct a rationale that it is precisely because of Bork's rejection that we today have a 55 majority the other way.

So when Bork came out against Miers on MSNBC a couple of weeks ago, I noted at ConfirmThem that pro-miers folks would now turn their guns on Robert Bork with all the ferocity they have levelled at Dean and co. "Surely not!", many cried, but it came to pass. Bork is now persona non grata; his rejection was not the result of a vindictive, deceitful and shameful propaganda campaign by Senate Democrats and their allies, but rather, because he presented a model of how not to handle confirmation hearings.

No sacred cow is too sacred to be slaughtered to help Bush beat the base, it seems.

SippicanCottage said...
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SippicanCottage said...
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gs said...

Moving briskly through the Althouse prose, I stopped in my tracks at this:

"In fact, I would think a genuinely religious person would perceive it as a sin to assume power in such a fraudulent way."

Devastating.

MrsWhatsit said...

I don't think I've ever disagreed with the brilliant neo-neocon before -- her blog is one of the wonders of the web. This time, though, I do. It is the job of a judge to reason and to write. A judge who can't grasp subject-verb agreement betrays a fundamental inability to do either of those things well.

Until now, I had been waiting for the confirmation hearings to make up my mind about this nomination. No longer. A person who writes -- and therefore thinks -- on this level does not belong on the Supreme Court.

Goesh said...

I just wish I had a clerk to correct my atrocious spelling and grammar.

StrangerInTheseParts said...

SippicanCottage said: "I can't explain Miers. I think I can explain Bork and Bush. "

Your post makes clear that you can 'explain' Bork...you paint a pretty clear picture which I found helpful.

Are you claiming you can likewise 'explain' Bush, but cannot similarly explain Miers? Because it seems to a lot of people that the Miers nomination is a quintessential GWB move. It sums up in one stroke many of his most persistant qualities, such as:

- his disregard for experts

- his passion for close personal alliances

- his aloofness from even his own supporters

- his fondness for thumbing the eyes of elites and intellectuals

- an inability to measure the significance of people and institutions with a large enough yardstick.

(Please note that in the current context these may sound like negative traits. In other contexts, they are often the things people praise about him most fervently.)

SippicanCottage said...
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StrangerInTheseParts said...

Well - I'll offer the simplest explanation I can think of:

Bush feels beseiged - nothing is going right and nobody is being nice to him anymore. Picking Miers was a way to reward a close personal associate at a time when most other associates don't seem to be friendly anymore. Indeed, Miers is pretty much a stick in the eye to most of the republican elites as well as the far-right end of the base. 2 birds with one impetuous, resentful stone.

The nomination smacks of a bunker mentality.

DRJ said...

Perhaps President Bush handles domestic matters (like judicial nominations) himself, and thus at times he fails miserably because he only has input from his political advisers. In other matters, he has advice from the Pentagon, VP Cheney, Secretary of State Rice, etc. It seems to me that on domestic matters, we see the "real" President Bush - sometimes bright, sometimes flawed, always political.

biggovgop said...

Sippican,

re: Occam's Razor

How about rewarding an old friend and making Laura happy? It will raise the reputation of SMU as a side benefit.

And, finally, a friend on the court could come in handy with the possible legal problems percolating.

SippicanCottage said...
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Steve H. said...

I'm impressed. This is the first blog entry I've seen that even attempts to criticize her based on evidence that she is unable to do the job.

Finally, someone goes deeper than "She didn't go to Harvard."

Thrasymachean soul said...
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Ann Althouse said...

Sorry, Rob. You reprinted the entire text of someone else's letter. Feel free to link to it, to summarize it, or to quote an excerpt.