October 7, 2005

"Warren."

So you're nominated for that big Supreme Court position, and now you're courting the various Senators, including the very important Patrick Leahy, the senior Democratic Senator on the Judiciary Committee, and he asks you who's your favorite Supreme Court Justice of all time and you say "Warren."

Warren?

Uh.... whoops.... but you see an out: Yeah, Warren, you know, Warren Burger. Great save! Except who has Warren Burger as their favorite Justice? I mean, plenty of people adore and revere Earl Warren, who is widely considered one of the finest Justices in the Court's history. But Warren Burger? Come on. Well, ask her about that at the hearings. I think even the brilliant advocate John Roberts would have trouble piecing together a plausible answer if he were assigned the task of arguing that Burger was the greatest Supreme Court Justice of them all.

Really, do you have a clue why she said "Warren"? She must have meant Earl Warren when she said it, right? Because who would use the first name to identify a justice? The news report doesn't at all convey the sense that she might have been cracking a joke, and it's hard to picture her making a joke, particularly this joke, in this context. But why would she blurt out Earl Warren? Possibly because she knows he became a great justice after entering the Court with no judicial experience, and she is attempting to portray herself as capable of doing the same. But why would she name this immense liberal hero unless she didn't know the first thing about constitutional law? Even if she's secretly a liberal, this would not be the right time to roll out that information.

(Link via Bench Memos.)

UPDATE: Actually the Bench Memos post is an attempt to explain the blunder. This unsourced info is provided:
"Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren — interrupted by Senator Leahy — Burger for his administrative skills.

Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn't express admiration for his jurisprudence."
So, maybe she was in the middle of saying the whole name and Leahy jumped in, and her point was that even Burger had some reasons why you could admire him. Except Burger is criticized for his administration skills: many of the recent Rehnquist obituaries emphasized what an improvement he made over Burger.

28 comments:

Sloanasaurus said...

Althouse, you are venomous on this issue....

Who would trust any story relayed by Patrick Leahy anyways.

Ann Althouse said...

Sloan, the WaPo article says "In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices." So it's not just Leahy's word. There are "several people." Although "knowledge of the exchange" doesn't necessarily mean they heard. But why would it be in Leahy's interest to distort this story this way? If he found out Miers loves Earl Warren, he should want to keep it under wraps and just talk to the Democratic Senators.

My passion on this subject is based on my concern for the judiciary. I do not want a mediocre or unqualified person to gain a lifetime appointment to the Supreme Court.

John said...

Ahh. Words and statements taken out of context. Bill Bennett comes to mind most recently, but that's another issue.

I agree with Ann on this, since I think a SC justice must weigh their every word. After all, it seems that the law is based on interpretation of what is said and written - or heard by others.

Ms. Miers statement worries me that she is not as prudent as she should be, for the position she has been nominated for.

Serenity Now said...

Her anonymous defender says Miers meant to say she "admired Warren Burger for his administrative skills". Since that explanation is preposterous, I'm inclined to believe the "several people" cited by the Post.

John(classic) said...

Burger's leadership of the Supreme court might have been poor, but the Chief Justice is also the leader of the federal judiciary.

Burger hauled the judiciary, kicking and screaming, into the twentieth century. It was a major fight and one he won, as much as anyone can ever "win" that sort of fight.

He also handled with surprising deftness at least three incipient scandals in the judiciary -- ak major responsibility of the "Chief" that is rarely noted.

It might be very well that he retired when he did. What had been strong leadership appeared to likely be overdone-- but he did retire when he did.

I admire his leadership, and I did not like him at all.

So yes, if Miers admired him for that I would concur--though it seems hard to know what went on with Leahy and Miers.
f

Mary said...

"My passion on this subject is based on my concern for the judiciary. I do not want a mediocre or unqualified person to gain a lifetime appointment to the Supreme Court."

Why not wait to hear what she has to say in the hearings? I am laughing at all the law professors who suddenly have a great concern for qualifications and wanting somebody with "experience", the best person for the job in there.

Now can you at least understand why some military-minded voters questioned Bush's qualifications as commander in chief? What goes around comes around, as they say. This is your pet issue, others were more concerned with war leadership.

What if she and Condi sat down before the hearings, and Harriet marches in there with some nice thigh-high leather boots? Didn't you say that a woman who knows how to look and dress proves something in how she handles herself? Or maybe I just read you wrong.

Qualified for the S.C. or not, enough with the "Harriet is a dunce" blather that seems to be coming out of some quarters of the blogosphere. She had to be smart enough to get where she is. I wonder if it's her religion or social status that underlies some of this.

Bush has appointed cronies and pals since Day 1. All of a sudden the law-career types don't think she's as qualified as one of their academic colleagues. Probably true. Many people by now are used to the best person not getting the job, and hoping the person who does get it can do well enough.

Also, it's interesting to me how the academic law bloggers seem to be looking to each other for cues how to respond to Ms. Miers. Wait until the hearings before you demand anything at least.

Jeff said...

I'll leave this one to "King of the Hill":

HANK: I thought you were busy teaching girls to blow up basketballs. When did this turn into a desire to ruin wrestling?

PEGGY: Oh, give me a break. I don't see how having a girl on the team would ruin it. Did a woman judge ruin the Supreme Court?

HANK: Yes, and that woman's name was Earl Warren.

reader_iam said...

Charles Krauthammer's column makes a number of points with which I believe a several posters here (and Ann) would likely agree.

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/06/AR2005100601468.html

Question, Ann: K. makes reference to cases related to the war on terror that would require Mier's recusal. Do you agree? What would be the criteria? I assume she makes the call herself? Any information you can give that would clarify this issue would be so appreciated.

Mary said...

From one of the commenters over at Volokh:
Googling "Warren Burger", the top hit yields this: "History will record that Warren Burger was one of the greatest chief justices," said federal appeals Judge J. Michael Luttig, a longtime friend who once clerked for Burger.

href="http://photo2.si.edu/burger/burger.html"

So maybe we should either discount all the nice things that are said about people after they're dead, or consider that people are gunning for Ms. Miers now and not being objective.

Steve Donohue said...

I just think that she feels uncomfortable with the whole questioning process, and so when asked the question she said "Warren", being the first thing that popped into her head. Kind of like the episode of Seinfeld where George gets a massage from a man, and when the massause asks George how he hurt his leg, George blurts out "Korea".

Of course, if my hypothesis is correct, methinks it doesn't reflect well upon the quality of nominee that our president has chosen.

Simon said...

I took twenty minutes out of my morning to e-mail Senators Lott, McCain, Kyl, Brownback and Coburn, asking them to treat this nomination with the deepest scepticism, and to apply the reverse-althouse test discussed yesterday.

Simon said...

Steven-
I just think that she feels uncomfortable with the whole questioning process, and so when asked the question she said "Warren", being the first thing that popped into her head.

A habit of speaking without thinking when under pressure? That's the kind of quality I want in a Supreme Court justice.

Daniel said...

I hope she consults the new Chief Justice (if he can find the time between setting up his office and deciding whether to keep Rehnquist's gold chevrons) before opening her mouth in front of the press again. The standard he set is unachievable, even for a candidate like Miers (pioneer like O'Connor). He has elevated the intellectual bar higher than nearly everyone can attain.

She will need to be extraordinarily careful with her comments from here on. Specter, and Leahy for that matter, will not shy from eating her lunch on C-SPAN and sending the remains back down Pennsylvania Ave to the WH. The chances of her getting Borked grow.


I saw the NY Times article this morning and thought I would visit. Excellent resource.

Daniel

Sloanasaurus said...

"....But why would it be in Leahy's interest to distort this story this way...."

The motive for distorting the conversation would be to embarrass the President.

Most of the statements coming from democrat senators these days are loaded with untruths. It's disgusting.

anselm said...

Truly bizarre comment by Miers.

Mary said: I wonder if it's her religion or social status that underlies some of this.

Wonder away, but the fact is that Miers had done almost nothing in her long career that recommends her specifically as a SC justice.

Bush has appointed cronies and pals since Day 1. All of a sudden the law-career types don't think she's as qualified as one of their academic colleagues.

So the legal world somehow, by their silence, permitted the appointment of cronies to crucial positions...and now, they're estopped - forbidden - from objecting to the biggest, most permanent crony selection of all, that directly affects the legal profession?

Pretty weak reasons for deferring to a mediocre, ethically conflicted nominee. The other variants of these arguments being cast around are hardly any better.

Daniel said...

Leahy's distrust stems from him being a Democrat and considering a conservative President's nomination, not from anything Miers says. This situation exemplifies the partisan nature of the Hill right now (and consequently makes this nomination so much harder to push through).

Paul said...

The deal was done with Roberts, Ms. Miers, or another name on Leahy's list was to be nominated with his confirmation and our President, honorable as he is, nominated her.
Since when do the Judiciary's questioning amount to "Hearings?" Listening to Roberts hearing, as in the past, it amounted to what? Speeches and general B.S. summed up by pro and con speeches about the Senators wishes that he have feelings for "us."
If she stumbles there, it will be her own fault, as she did with "Warren." If the Senators all raise their eyebrows in unison or roll their eyes together she is in trouble. Otherwise, she is in. Thanks Mr. President.

Ann Althouse said...

Thanks, IAM. I actually had a link to the Krauthammer piece in the original draft of this post, but then edited it down and dropped it, thinking I'd do a separate post, but have been too busy to get to it.

jwill46 said...

Kathryn Jean Lopez posts the following at NRO's Bench Memos:

This is what I'm told happened:

"Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren — interrupted by Senator Leahy — Burger for his administrative skills.

Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn't express admiration for his jurisprudence."


http://bench.nationalreview.com/archives/078890.asp

SteveR said...

I think we can all agree that this provides the senate with an opportunity to do its job. Instead of all the speech making, etc BS that went on during Roberts hearings, let them ask good questions design to evaluate her qualifications (not her politics). I am fully prepared, as a Bush supporter, to accept the fact that she is a lousy choice and should not be confirmed.

I understand Ann's misgivings and I hope that Leahy, et al share her concern enough to put aside politics. I am not optimistic.

Troy said...

It'd really been unfortuante if she were going for a joke and said "Tawny" as in Tawny Scrawny Lion, but was interrupted after "Tawny". Then we could debate Harriet Miers -- racist.

btw -- I love Golden Books. I nominate Poky Little Puppy for SCOTUS

milowent said...

warren was never a judge i believe. maybe that was the comparison she was trying to make. but it would be a bad one.

Jacob said...

Marge: Do you want your son to become Chief Justice of the Supreme Court, or a sleazy male stripper?
Homer: Can't he be both, like the late Earl Warren?
Marge: Earl Warren wasn't a stripper!
Homer: Now who's being naïve?

ziemer said...

mary,

there is a huge difference between appointing your cronies to serve with you in the executive branch, and appointing a crony to the judicial branch (especially the supreme court).

jfk appointing rfk to be attorney general, or reagan appointing meese, or bush appointing meirs to the office of legal counsel, are all acceptable intra-executive branch appointments, even if they smack of cronyism.

but all would have been, or in meirs' case, is, unacceptable cronyism in judicial appointments.

this is not just us lawyers protecting our turf and applying a double standard; it is about separation of powers.

Joan said...

this is not just us lawyers protecting our turf and applying a double standard; it is about separation of powers.

But zeimer, one of the explicitly enumerated powers of the president is to make judicial appointments!

It's up to the Senate now to do some serious advising before they consent, if they do. I'm hoping against hope that we get some substantive stuff out of the hearings, and not a lot of "bloviating."

ziemer said...

joan,

and the advice and consent function of the senate is to not approve cronies, while approving worthy nominees like roberts.

Stacy said...

I'm actually impressed she knew the name of a Justice not currently on the SCOTUS. They must have prepped her well.

If I were one of the people assigned to get her up to speed (god help me), I would try to keep her from...ummm...speaking outloud as much as possible.

jvg1249 said...

I'll admit my memory is failing me a bit here, but didn't Warren Burger lead a National Commission celebrating the 200th Anniversary of the US Constitution. I seem to remember him on TV speaking passionately about the need to educate our children, and the general population, about the contents and significance of that marvelous document (paraphrasing him there).

Anyone else remember such an undertaking, or am I off base?

Maybe she was moved by Burger's passion surrounding that event.