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.A harsh judgment, but I can't say it's wrong. Can you?
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?
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.
...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.
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.