October 22, 2005

I oppose the Miers nomination.

I oppose the Miers nomination. Let me say that clearly, in those words, so I can be counted in N.Z. Bear's effort, described here. Must I say why here too? I've already said it so many times. You can follow the trajectory of my opinion of the nominee, which peaked on October 11th with my "Mellowing on Miers" post. I'd mellowed, mostly as a matter of contrarian instinct, upon reading a few too many emails from lawprofs who were too self-regardingly overvaluing constitutional theory. I don't require hardcore commitment to a theory -- the conservative's originalism or the liberal's "active liberty" or whatever. John Roberts -- a model nominee -- did not commit himself to any theory of interpretation.

What I do require is demonstrable analytical ability. I have seen no evidence of the level of ability that we have an obligation to demand from a Supreme Court justice. This is not a time to be nice or to give an unknown a chance. It's a lifetime appointment. President Bush made a terrible choice, and Miers did not decline. I was willing to wait for the hearings to make a final call, but the handling of the nomination has been so abysmal: the botched questionnaire, the bolstering with religion, the lack of any coherent defense in the face of weeks of criticism. It's just too much! End it, already!

38 comments:

Dave said...

So, I wonder if Althouse opposes the Miers nomination? She hasn't been too clear on that.

Jacques Cuze said...

Okay, so I appreciate that answer. But I am curious, must they have legal training? As an engineer and scientist, I think there should be a Supreme Court Seat for Engineers and Scientists -- the Court is much too heavily weighted towards the legal profession.

demonstrable analytical ability

Does that permit Jeff Bezos, Princeton Summa Cum Laude, EECS, Banker, CEO Amazon? Or Jack Welch, CEO G.E., BS and Ph.D, Chemical Engineering?

Dave said...

"the Court is much too heavily weighted towards the legal profession"

Isn't that a bit like saying "the operaring room is much too heavily weighted toward the medical professdion"?

carla said...

What I do require is demonstrable analytical ability. I have seen no evidence of the level of ability that we have an obligation to demand from a Supreme Court justice.

If "demonstrable analytical ability" were part of the SCOTUS litmus test, Thomas would have never made it on.

I don't like Miers. But frankly I'm enjoying watch conservatives squirm over this nomination. The problem for most isn't her lack of experience or analytical skills. It's that her ideology is mixed and she's an unknown quantity.

This "lack of skills" stuff is just an excuse.

Jacques Cuze said...

Not at all. In the operating room there is one or two people with a knife performing a complex series of steps with the need to recognize the implications of everything they see in realtime as the perform these steps in realtime. And they need to know how to cut and where to cut and when to cut.... The surgeon's impact is on one and only one person. It is probably best for that person that the surgeon have a deep knowledge of surgery and human biology and maybe nothing else.

The Supreme Court is majority rules. There are eight other votes. Each person with a vote has a staff well qualified, well thought of legally trained professionals that can help the justice understand the various issues and legal theories. The justice does not have to think in realtime, the justice should show, as Ann as mentioned,

demonstrable analytical ability

The justice's impact of one decision is one vote of nine that will rule potentially, until the nova of the sun. Not an impact on one person, but an impact on millions.

It maybe best for the country if the justices have a broad knowledge, including (and not excluding) law, history, science, economics, business, medicine, and telecommunications.

John(classic) said...

"the handling of the nomination has been so abysmal: the botched questionnaire, the bolstering with religion, the lack of any coherent defense in the face of weeks of criticism. It's just too much! End it, already!"

I think you are jumping the gun -- we have seen and heard almost nothing of Miers yet.

On the other hand, if she does not impress in the hearings, I will join you.

I have to admit the very little bit that has dribbled out recently -- the Bar journal writings (if not by staff) and the answers to the Committee questionnaire are not promising. Still I do think you are jumping the gun -- you have judged the horse before it is out of the gate.

Pantherine aviatrixes (aviatrices?) after all ought lurk patiently before pouncing.

downtownlad said...

Bush said she is the most qualified person for the Court. As the President of the United States, he is worthy of some respect.

She should get a proper hearing. I expect we'll all be surprised at how well she does. If she truly is the most qualified person for the court - she should blow people away in the hearings and easily surpass the low expectations people have about her.

And if she doesn't do well - then how will that reflect on the President? In the meantime - I think we have to assume that Bush is telling the truth about her qualifications.

ziemer said...

carla,

have you read none of the voluminous opposition to this nomination over the past few weeks?

and there's a term in psychology for what you are doing here. it's called "projecting" your own failings onto others.

Ann Althouse said...

John: Given the level of criticism, they needed to come forward with something. If they had it, they'd have presented it. I started out with a presumption in favor of the president's choice. Now the presumption is rebutted.

John(classic) said...

I have to admit to being a bit shaken by today's report on what appears to be a support of racial quotas in the Bar.

I disagree with racial quotas and regard them as illegal and unconstitutional. What bothers me is that I suspect Miers does so too, but gave in pressure -- a very bad sign for what I would like to think of her.

I would like details. I don't trust the press presentation. But I am a bit dismayed.

On your position, isn't there a minor inconsistency in saying that the White House "handlers" are abysmal, and then saying that were there good they would have presented it already?

Ann Althouse said...

John: They've regrouped several times already. Even with ineptitude, they've had more than enough chances to make a credible case for the nomination.

ziemer said...

john,

i wouldn't worry about the espousal of support for quotas much; such a position is mandatory for someone in a mandatory state bar leadership position.

look at it this way:

in order to be willing to spend the time required for such a thing, one has to have an inordinate desire to control other people's money.

thus, bar leadership is overwhelmingly liberal relative to overall bar membership. conservatives by and large just pray they don't raise dues.

so, the real concern is not espousing support for quotas, which she would have to do, given her position. it is that she sought leadership in the bar in the first place.

Jacques Cuze said...

yeah, cause we all know that conservatives are not interested in spending my money. oh, what's that you say? 40, 41, 43 all increased the deficit? 42 didn't. Hmm.

I guess what I meant to say is that we all know that conversative lawyers are THE defenders of the free market. That's why so many conservative lawyers are trying to eliminate the Bars, because the Bars are inherently about eliminating free competition.

Yah.

Finn Kristiansen said...

It amazes me that so many people can be so sure of themselves before a hearing has even begun, locking themselves into their own preconceived notions without due factual support.

Miers might be an awful pick, and certainly not one I would have liked to see chosen, but since the pick was made, she at least deserves a real sit down opportunity to say her peace. Nobody should be prejudged. We just might discover a gem. Likely not, but still.

Someone also said something about Thomas not appearing to have an analytical mind when picked. I think the nature of his opinions and his performance have shown the level of his worth, and Miers may be that kind of a pick. The comfort and focus of the court might just be the arena where her true powers (if any) shine.

Frankly, most conservatives (of the religious kind-Dobsons and such) are really concerned more about outcomes than process, but just so happen to believe that the strict interpretation of the constitution will lead to outcomes they like.

If it was the flip, where shagging on trampolines while smoking weed could be found in the constitution, every strict constructionist of a religious bent (myself included) would be talking about "it's a living breathing document, open for change and redefinition."

People need to huff less, and let the process work itself out. If she is horrible, the senators will demonstrate that in hearings, and another will fill her shoes.

John(classic) said...

ziemer--

"i wouldn't worry about the espousal of support for quotas much; such a position is mandatory for someone in a mandatory state bar leadership position."

Unlikely as it may seem I was nominated to be the President of our State Bar.

Affirmative action for the Bar was a hot issue in the bar leadership then. I was asked twice my position.

I said that I supported enthusiastically any effort to open the profession more to the disadvantaged. However I firmly opposed affirmative action based on race. If the Board of Governors proposed such a policy, I would oppose it. If they passed it, I would fully execute it unless I thought it illegal or unconstitutional, in which case I would resign. The legal issue was a real one because of the quasi-offical status of the State Bar and lawyers in our state.

I almost won, finishing just two off the winner-- we had three nominees that year.(grin).

Though affirmative action was a hot issue in the bar leadership, it was not for many lawyers -- dues, and malpractice proceedings were their issues.

John(classic) said...

Found while perusing the State Bar of Texas site:

"A leading indicator of the predicted larger percentage of minorities in the State
Bar is the proportion of minorities currently in Texas law schools. For the 2004-
2005 school year some 61 percent of the students are minority..."

Wouldn't that necessarily mean that 100% of the students are minority?

ziemer said...

john,

farout!

not what i expected to hear.

but would you agree that, generally, bar leadership leans well left of the membership?

and quxxo,

real conservatives don't consider bush the elder or younger to be one of us.

Jacques Cuze said...

K, fair enough. Who did you vote for then?

jinnmabe said...

"I think there should be a Supreme Court Seat for Engineers and Scientists -- the Court is much too heavily weighted towards the legal profession."

and

"It maybe best for the country if the justices have a broad knowledge, including (and not excluding) law, history, science, economics, business, medicine, and telecommunications."

Some people think the Supreme Court Justices are not supposed to be philosopher-kings, who look down upon us with their far-reaching, cosmopolitan wisdom, and decree what the "right" course of action is, but rather bookworms who interpret the law as written, and leave the policy and law-making to the legislatures. Would a degree in telecommunications, business, or medicine help a Justice analyze the words of a statute or the Constitution? Or would it better help them to decide what they think is the correct result, and then form the law to yield that result?

I'm not saying that Justices shouldn't be as educated as possible. But I'm unclear on why the people whose job it is to interpret the law should be unfamilar with the practice of interpreting the law.

ziemer said...

in 1988, i voted for gore (in the primary), bushI in the general.

if gore was the same person in 2000 that he was in 88, i'd have voted for him again, but he wasn't, so i voted for bushII, gritting my teeth all the way.

2004, bushII again, solely on account of the war, and because i live in a swing state. otherwise, i'd have voted libertarian.

John(classic) said...

"but would you agree that, generally, bar leadership leans well left of the membership?
"

Yes, I think that is true of most organizations.

I once saw a surevy that found the question whose answer has the highest correlation with whether the respondent is liberal or conservative was "The world would be better if others did what I wanted them to."

A natural for seeking leadership positions...

In our Bar at least, I think liberal/conservative is complicated by a rural/urban split and small-solo/larger firm split. I am not sure that issues split on the normal political lines as much as those. At least they confound it.

Simon said...

I fel a lightness in my heart. This is akin to the redemption of Darth Vader - welcome back from the dark side, Ann! ;)

Simon said...

John:
"I do think you are jumping the gun -- you have judged the horse before it is out of the gate."

If people are judging the horse before it is out of the gate, it's because they can see that the horse has only one leg and questionable eyesight.

If there really was some sort of compelling evidence that made Miers look less of an unqualified non-entity, don't you think the White House would have put it out there by now? That's the thing about all these half-asses defenses they keep using - if you've got grenades, you don't throw rocks!

Jacques Cuze said...

I'm not saying that Justices shouldn't be as educated as possible. But I'm unclear on why the people whose job it is to interpret the law should be unfamilar with the practice of interpreting the law.

Because they risk making ill informed decisions about the law when they don't take modern thoughts regarding science, technology, medicine, etc. into account.

Example: Abortion: When does life begin? I gather that in Roe, the court was able to side-step that issue, and discussed "viability". With technological and medical progress viability will surely be getting earlier and earlier.

How is a lawyer with no training in science supposed to understand scientific arguments about viability? They made be able to judge whether a law is constitutional wrt to the original document, but they are at risk of making a ruling that makes no sense in the real world.

Why do you believe a lawyer with a deep, but limited and narrow education in law can understand scientific, medical, social issues, but that an engineer, or doctor, or scientist cannot understand the legal issues?

Another example: cellphone privacy. The Electronic Communications Privacy Act makes unencrypted cellphone calls private. What a stupid law! This law is the equivalent of a state mandating that pi = 3 (apparently only an urban legend.) Such a law might be constitutional, I dunno, but it doesn't make it practical. Cellphone conversations that are not encrypted ARE NOT PRIVATE. Individuals with radios can listen to any other radio conversation, why are cellphone conversations treated as protected? The conversation is not private. Who is being protected here, and just how are they being protected?

When I throw my trash out, I have no right to expect the trash is treated as private information. How are unencrypted cellphone calls any different?

Can a narrowly edumacated lawyer understand that without some reference to science or engineering or history? Seemingly not.

Internet Links, 2600, and the DeCSS case. More stupid interpretations from judges that know nothing of science. The "hacker" magazine 2600 links to a site containing DeCSS. 2600 is sued and loses. CNN posts to sites containing DeCSS links. Nothing happens to CNN.

the DeCSS Gallery explores when computer code as free speech

"On January 20, 2000, United States District Judge Lewis A. Kaplan of the Southern District of New York issued a preliminary injunction in Universal City Studios et al. v. Reimerdes et al., prohibiting the defendants from distributing computer code for reading encrypted DVDs. The defendants had been sued under 17 USC 1201(a)(2), also known as section 1201(a)(2) of the Digital Millenium Copyright Act.

Judge Kaplan subsequently issued a memorandum order in which he indicated that executable source code was not subject to First Amendment protection against prior restraint of speech. This finding is contrary to that of the 9th Circuit US Court of Appeals, who ruled in the Bernstein cryptography case that source code is indeed protected speech. In their decision, The 9th Circuit even quoted some Scheme code from the declaration of MIT Professor Harold Abelson, explaining why source code is an effective and sometimes preferred means of human communication. Professor Andrew Appel of Princeton University also filed a declaration explaining the importance for computer science of being able to publish source code. More recently, the 6th Circuit US Court of Appeals ruled in the Junger cryptography case that, independent of its functional significance, the expressive nature of source code affords it First Amendment protection.

If code that can be directly compiled and executed may be suppressed under the DMCA, as Judge Kaplan asserts in his preliminary ruling, but a textual description of the same algorithm may not be suppressed, then where exactly should the line be drawn? This web site was created to explore this issue, and point out the absurdity of Judge Kaplan's position that source code can be legally differentiated from other forms of written expression.


You say,

Some people think the Supreme Court Justices are not supposed to be philosopher-kings, who look down upon us with their far-reaching, cosmopolitan wisdom, and decree what the "right" course of action is, but rather bookworms who interpret the law as written, and leave the policy and law-making to the legislatures.

Can individuals truly, with no bias, objectively, interpret the law as written? Heisenburg says no. Dali says no. Hunter S. Thompson say no. Jung says no.

Umpires say no.

When Roberts said his job was "to call balls and strikes," he was asking the Senate Judiciary Committee to ask itself, What is a strike? Originalists in these matters might say that a strike is what its 1887 rulebook definition says it is, "a pitch that 'passes over home plate not lower than the batsman's knee, nor higher than his shoulders.' " Or they might accept some more recent official definition.

But a strike has never been what the rulebook says it is. This elementary unit from which a baseball game is constructed is whatever an umpire says it is. Ken Kaiser, who umpired in the American League from 1978 to 1999, stated this truth with philosophical precision in his memoir, Planet of the Umps.

"The strike zone as defined in the rule book … is a myth. It doesn't exist. It's a nonexistent imaginary box. It has always not existed," Kaiser writes.

According to Kaiser, no two umps see the same strike zone. They view the plate from different angles, react differently to pitches, and change their opinion of what a strike is from batter to batter. When umpires say they call balls and strikes the way they see them, they mean it literally. They are the strike zone.

Likewise, the law is whatever Supreme Court justices say the law is. Just as no two umps see the same pitch, no two justices view the same judicial strike zone. If they did, every decision would be 9-0. Oh, the justices are supposed to draw on the Constitution and consult binding precedents in their rulings, just as umpires are instructed to call games in accordance with the contents of the Major League Baseball rulebook. But established law and baseball rules are sufficiently complex to leave wiggle room for less than objective edicts from justices and umps. As Kaiser puts it, "The best way to stop an argument is to quote the specific rule that you used to make a call, even if you have to make up that rule."


If the law is whatever Supreme Court justices say the law is, then I would prefer my Supreme Court justices to have a broad experience in the real world and knowledge and broad edumacation of law, technology, medicine, engineering and computer science, etc.

Your mileage may vary.

Jacques Cuze said...

The Constitution was finished in 1787. Darwin's Theory of Natural Selection in 1838, and his book, The Origin of Species published in 1859.

What does that tell you about the usefulness of using only the Constitution as it was written in 1787 to understand if Intelligent Design is Creationism or Science?

While I have the utmost respect for our Founders and the document they drafted, why do you elevate them and their work to a religious, cultish status, and with regards to the Umpire argument, is that even practical?

Sean said...

John, I'm highly confident that Prof. Althouse's law school has published, and Justice Roberts's former law firm has subscribed to, statements at least as supportive of quotas (or "goals," if you prefer) as anything that came out of the Texas State Bar Association. I'm also highly confident that neither Prof. Althouse nor Justice Roberts said "boo" on this issue. Your purported concern strikes me as pretty phony.

John(classic) said...

quxxo--

I think the baseball analogy misses something. Yes there is a grey zone that varies from umpire to umpire, but there also is an area that is clearly a strike, regardless of umpire, and one that hits the dust is clearly a ball. If the umpire miscalls those, he'd best be ready to run.

So it is with the Supreme Court, perhaps with the added proviso that the percentage of grey zone calls is much higher because the lower courts and the selection process tend to filter out the easy ones.

John(classic) said...

sean--
"Your purported concern strikes me as pretty phony"


I think the key is that Miers is presented as someone (a) who is a strict constructionist and (b) will stand up for her beliefs.

Regardless of how precisely one defines a strict constructionist, no one can contend that a strict construction of the 14th Amendment or the Civil Rights Act allows affirmative action. Ergo, if she supported affirmative action (with racial quotas) she is either not a strict contructionist or will not stick with her beliefs when under pressure.

"Textualist" might be a better phrase than "strict constructionist", but the problem seems real to me.

...Supposing of course that we know all the facts and the circumstances, which I do not think we do.

Were I a Senator, it would be something I would question her closely about.

Jacques Cuze said...

Yes there is a grey zone that varies from umpire to umpire, but there also is an area that is clearly a strike, regardless of umpire, and one that hits the dust is clearly a ball. If the umpire miscalls those, he'd best be ready to run.

So it is with the Supreme Court, perhaps with the added proviso that the percentage of grey zone calls is much higher because the lower courts and the selection process tend to filter out the easy ones.


Fair enough, now why do you think it takes a lawyer to be able to make these calls correctly? Why don't you believe that a Ph.D in cellular biology, or Philosophy, or EECS, or an M.D. couldn't also make these decisions correctly, especially after being educated by their interns and staff as to where the strike zones and grey zones lie?

In answering, you may wish to explain why Congress finds their Congressional Science Fellows so particularly important. (Typically, 120-150 congressional offices express interest in the approximately 25 fellows that participate in the AAAS fellowship program each year)

ziemer said...

quxxo,

your post makes many good points.

and if your thesis was "this is why courts have overstepped their bounds in recent decades, and should defer more to legislators, who hold hearings and get input from all interested parties," then i would agree with you.

but i can't see how it would serve the country well to have real legal questions answered by someone who wouldn't even know how to go about answering preliminary issues such as whether the plaintiff has standing, whether all necessary parties have been joined, or whether the court has jurisdiction over the case.

Richard said...

I'm an attorney in Pennsylvania and know personally dozens of excellent lawyers with every bit the gray matter, skill, and constitutional law experience (or lack of it) that Ms. Miers apparently possesses. And so I conclude that she has been chosen because she's chummy with the President. This insults me. This is what I object to most about her nomination.

I voted for Bush twice, but I'm seeing in him a Ruling Class mentality. I thought conservatives believed in selection by merit. Hell, I thought American was founded on that principle.

The president’s response to the conservative uproar over Miers has been telling. The president seems to view his public as small-minded, insignificant people (in his startling words, “background noise”) doing unimportant things, and not deserving of very much consideration. After all, Miers is HIS friend, and the Supreme Court vacancy is HIS to appoint, and so, he thinks, it is entirely appropriate – no, he has the right -- to put her on the Court. I sense that he's actually angry we peons who are complaining. The White House’s response to our questions has been to throw us one-liners (She’s a Evangelical Christian (Mr. President, we don’t care!), her opponents are “sexist” (Mr. President, no they’re not!). It‘s embarrassing that he thinks these platitudes should “work” on us, quiet us down, and it’s a disturbing sign that the Ruling Class mentality may be layers deep in the executive branch.

37383938393839383938383 said...

think there should be a Supreme Court Seat for Engineers and Scientists -- the Court is much too heavily weighted towards the legal profession.

Not really. The Federal Circuit deals with those kinds of cases, and specialized attorneys take the patent bar, for instance, to litigate them. Also, magistrate judges and special masters with engineering training handle the pre-trial stuff, so there's no need for an engineer's seat on SCOTUS.

Jacques Cuze said...

Well I am being a bit facetious by saying there should be an Engineers or Scientists seat.

My real point was, that if Bush had nominated a Bezos or Welch or Colin Powell or some non-lawyer with impeccable credentials that had nothing to do with law, but that showed "demonstrable analytical ability", would that be okay, or would the lawyers scream, and if so, why?

ziemer said...

richard ames,

keep on keeping on. i'm with you,

quxxo,

let me demonstrate my point this way:

go to the seventh circuit's website, and read the opinion written by judge easterbrook in jaskoski v. daniels (nos. 04-3622 & 04-3623) on oct. 21.

the case concerns whether a federal judge can enjoin a state judge from ordering a private investigator to disclose grand jury materials that have been disclosed to him by the u.s. attorney.

then tell me why you think an engineer would be qualifed to do write that opinion any more than judge easterbrook or i would be qualified to design a bridge.

Jacques Cuze said...

I can't it's much too late for me tonight to demonstrate analytical ability. But I will say I argue with the premise of your question. Over the course of my career, I have designed and built robots, compilers, anti-aircraft and anti-missile defense systems, aircraft trainers, systems for aircrafts, ecommerce systems, charge authorization systems, AI systems that understand and automatically answer emails, 911 Emergency Telecomm Systems, financial portfolio management systems to order/sell/... optimized portfolios, army telecomm systems providing troops the ability to talk/email one another or anyone in their battalion or in cooperating forces and provide GPS information of themselves, or of laser designated targets (with photographs), realtime ecommerce handheld wireless gambling devices and the 99.999% uptime server systems to process those computations and others. I have participated in the creation of legislation regarding the use of digital signatures, and I have participated in the creation of several startups at technical levels as well as marketing levels.

And what did I know of any of these areas before participating in them?

Nothing. Nada. Zip.

I disagree with the premise of your question. I am absolutely confident that a Breyer, Souter, Ginsberg, Stevens, Powell, Marshall, Warren, Black, Douglas, or Brennan could very easily successfully participate in a team of engineers designing a bridge.

I am not saying that *any* engineer would be qualified for the Supreme Court. I am asking why certain engineers or doctors or scientists (or ....) couldn't qualify, if all they lacked was the legal training.

Ann Althouse said...

Richard: Very well put. This is how I feel too. Bush has done this in other areas, but I take special offense at doing it with the Supreme Court. It's a separate branch of government with lifetime appointments: it's really not his personal playground.

Ann Althouse said...

Quxxo: To state the obvious, my "demonstrable analytic ability" implies legal training. If it doesn't for you, I'm spelling it out now.

chuck b. said...

Daily Pundit predicts GWB will offer up Consuelo Callahan if/when he drops Miers. She looks like fun.