October 6, 2005

Miers supporters: something in writing, please?

I have yet to see a single piece of writing by Harriet Miers dealing with an issue of constitutional law or even anything purporting to demonstrate the analytical, interpretive skills required to serve on the Supreme Court. The nomination was announced on Monday. It's Thursday. Can we have something in writing that shows her mind in action, that inspires confidence that this is a person whose judgment we should all trust for the next two decades?

UPDATE: I'm still waiting. "Texas Life Insurance Update" doesn't count!

ANOTHER UPDATE: And this surely doesn't count, except as evidence of what a profound step down the Miers nomination is from Roberts.
Alex, from Fargo, North Dakota writes:

Could you explain how Barney plays horseshoes?

Harriet Miers

The President throws the horseshoes to Barney, and Barney runs after them. Metal horseshoes are too heavy for Barney to lift, so he doesn't carry them around. Instead he moves them around with his nose. He has figured out pretty quickly how to get under the horseshoe enough to flip it over. As you know, the President loves horsing around with Barney.

And, apparently, the President loves horsing around with the other branches of government.


Goesh said...

Well, the Constitution doesn't require this either. When the President acts like a fink, we all must suffer in some degree because of it. We may as well look to her doodling or the size of her feet for a clue, otherwise we will have to trust our elected Senators to put her feet to the flames, both sides, and prod her with hot irons as well.

Sloanasaurus said...

I think referring to someone as a Miers supporter is going a bit far. At this point, its better to call such people "those currently not in oppoistion to the appointment."

Unless Miers is outstanding during the confirmation hearings, the nomination should be withdrawn.

Truly said...

I wonder if the outspoken disappointment with Miers from the right will make the president more adamant about his choice. He does have that quality of stubbornness in the face of criticism--the more people are displeased, the more determined he will be to see his nominee confirmed.

My biggest concern about Miers isn't that she's not qualified (though evidence in support of her nomination is pretty thin gruel), but that I can think of a dozen people off the top of my head that are MORE qualified. I find it impossible to believe that she's the best-qualified person for the job. And don't we deserve the best?

Too Many Jims said...

"those currently not in oppoistion to the appointment."

A great phrase, but a bit pregnant with the impending defeat of the nominee.

Sloanasaurus said...

"...A great phrase, but a bit pregnant with the impending defeat of the nominee...."

Yes, I thought we would have heard more or discovered more written materials by now I agree with Althouse. I think it would be crazy to support her without some significant prior paper trail. You need more than just testimony from her and her supporters including the President. Which, is why I think her nomination may be heading for failure.

anselm said...

I am looking forward to the hearings. A nominee who has to do show something and not just play defense? Real questions from the senators? Let's skip the opening statements and get right to it!

Jack Roy said...

She did (or is rumored to) publish her Note a ways back, long enough ago as doesn't show up on Westlaw. It dealt with tort law, but tort law is ... like constitutional law, I suppose? Maybe?

David said...

Even if they do provide documents, can you trust anything written? As Roberts stated (and as my main problem with Ms. Miers is), as an advocate, you cannot glean the person's views, because they are being paid to advocate someone else's views.

If Miers is as good at her job as everyone says, how can Bush state that during their meetings he has "seen her heart;" shouldn't he be seeing a reflection of his heart?

John(classic) said...

I don't think the nation is served by good Supreme Court Justices, I think the nation is served by good Supreme Courts.

The present court in my opinion, has two weaknesses. I think they stem from two causes. One cause is a sharp but even ideological split among 5-7 members of the court. The second is an unbalanced court in backgrounds, too many judges, acadmeics, and government or non-private lawyers.

The first weakness is a willingness to disregard the factual record. Facts inconveneient to the ideological point are ignored, swept under the rug, or contradicted. Cases are messy things, rarely suited for straight ideology or academic debate, and this court seems sometimes dishonest in how it manipulates the facts to support the decision. This corrodes justice.

The second is a lack of clarity. In the real world by a ratio of thousands to one disputes are settled not tried. Lawyers can do this because they have a reasonable certtinaty as to how the courts will decide things. Inserting certainty at least for federal issues is a primary responsibility of the court.

Perhaps because the split is even and decisions are made by compromise, waffling, and fogging to attract the middle, this court lacks clarity. I think it allows itself to do this because few of the justices have strong backgrounds in that vast area that most lawyers practice in where certainty is more important than almost any other quality. Practicing lawyers blanch when they hear like words "balancing test". What it means is that when asked to make a decision, the court went on vacation. (Perhaps the willingness to tolerate uncertainty is rather a foible of Harvard Law School, where 5 of the justices learned law.)

If you doubt this ask any university counsel whether his university's admissions policy meets the Bollinger requirments. If counsel answers "yes", ask if he is sure.

I know little about Miers, but I am encouraged by two things. First she appears to be a detail person, someone who takes great pains to get all the facts straight before opining. This court would benefit greatly from someone who would scribble on a circulating draft opinion "But what about the District Court's finding at paragraph 234 of the opinion..." or "The testimony of the police offer at p.823 of the record contradicts this..."

Similarly, Miers background suggests that she might have a practical and strong regard for society's need for certainty. Real life requirews more certainty than an perpetual faculty committe meeting on policy usually provides.

I will say that a lot of criticism about Miers seems to reveal the worst of academics. Applying foolish academic criteria, they decide that she went to the wrong school, joined the wrong law firm, failed to write articles, and talks funny. She is not our kind. Ergo, she is unqualified. God help Lincoln had the academics been as prevalent then as now.

Too Many Jims said...

Depends on the tort.

John(classic) said...

Sorry for all the typos above--the struggle with the aliens for control of my fingers sometimes flares up .....

Truly said...

If the documents are provided, at least we'll be able to see her reasoning abilities on substantive issues (in addition to her writing skills). That's still valuable even if the positions she advocates aren't necessarily her own.

Ann Althouse said...

So far, no links to writings.

Seriously, if I don't get a link to a writing very soon, I'm going to write a post demanding that the Miers nomination be withdrawn.

madcat said...

I found it! Links to Harriet Miers' writings on the Constitution!

She has written *extensively* about the Constitution in her Ann Landers roles as website "Ask the White House" hostess.

See, e.g., her Q and A session from August 11, in which she provided brilliant answers to questions about a White House clock, the President's ability to speak Spanish, she dodged a question on abortion, and she answered two whole questions about the Constitution:

Jeannie, from Tampa, Florida writes:
Is it true that the right for African Americans to vote will expire in 2007, when the Voters Rights Act expires? From what I've been told is that Former President Lyndon B. Johnson signed the Act in 1965 and it was amended by Former President Ronald Reagan in 1982 for another 25 years. Please advise.

Harriet Miers
Thanks for the question, Jeannie. The Department of Justice has received numerous inquiries concerning a rumor that has been intermittently circulating around the nation that the Voting Rights Act will expire in 2007. The rumor is false. The voting rights of African Americans are guaranteed by the United States Constitution and the Voting Rights Act, and those guarantees are permanent and do not expire. The 15th amendment to the Constitution and the Voting Rights Act of 1965 prohibit racial discrimination in voting. Under the 15th amendment and the Voting Rights Act, no one may be denied the right to vote because of his or her race or color. These prohibitions against racial discrimination in voting are permanent; they do not expire.

There are some sections of the Voting Rights Act that need to be renewed to remain in effect. When Congress amended and strengthened the Voting Rights Act in 1982, it extended for 25 more years--until 2007--the preclearance requirement of Section 5, the authority to use federal examiners and observers, and some of the statute's language minority requirements. So, for those sections to extend past 2007, Congress will have to take action. But even if these special provisions are not renewed, the rest of the Voting Rights Act will continue to prohibit discrimination in voting.

I hope every American who can vote registers to vote and votes.

Brent, from Caldwell, Idaho writes:
My questions concerns how many years a person may serve as president. It's my understanding that a president can run for only two terms, 8 years, but can acutally serve up 10 years. Am I correct? Thanks

Harriet Miers
Thanks for your question, Brent. In 1951, the XXII Amendment to the Constitution established that a person could be elected President only twice. The biggest exception to that rule is that a person who has held the office of President, or acted as President, for more than 2 years may only be elected once. This is a rather long way of saying, yes, a person may only be elected President twice (serving a total of eight years), but may have served up to two additional years of a term to which another person was elected making a total of 10 years. For more information about the Constitution and the other seminal documents of our country, you can visit http://www.ourdocuments.gov a Presidential initiative to explore the 100 milestone documents of American history.

So maybe she has a "long way of saying" other things about the Constitution as well? Proof enough?

Ok, maybe not.

vbspurs said...

She has written *extensively* about the Constitution in her Ann Landers roles as website "Ask the White House" hostess.

Darn you, Madcat!

I posted that link in my Harriet Miers blogpost when the nomination was announced, so I was going to post it here as rebuttal with bated breath.

I noticed that she has that modern-day politician way of thanking people for asking questions.

Gosh I hate that. It's so suck-uppish and insincere.

"Mr. President, what is your stand on porking interns?"

"Thank you for asking that question."

P.S.: Ann, you have to ask people like Hugh Hewitt that -- so far, one of the lonely supporters of HM in Blogosphere (of the big Bloggers, I mean). They have better resources than we do, since mostly we just have Google. *shrug*


Jacques Cuze said...

Uh oh, you were linked by Kevin Drum. I hope this doesn't hurt your self-proclaimed lib bloggers ignore you victim thingy....

Effern said...

Seriously, if I don't get a link to a writing very soon, I'm going to write a post demanding that the Miers nomination be withdrawn.

Seriously, if the Democratic Senators didn't get the documents they wanted prior to the Roberts hearings, they were going to vote "no".

Less seriously: You'll "demand" a withdrawal of the nomination...?

Evan said...

The University of Michigan Law Library has a Miers page with a bibliography and links to 15 articles, mostly from the Texas Bar Journal during the time in which Miers was president of the Texas Bar. Those articles don't mean much and might be ghostwritten.

The bibliography is here: http://www.law.umich.edu/library/news/topics/miers/miersindex.htm

I've searched elsewhere and have concluded, in part based on this post and its comments, that Miers simply wasn't a writer. I find that troubling in a Supreme Court nominee, but it's probably typical of people who rose up within the ranks of large civil defense firms.

In response to vbspurs, Beldar at BeldarBlog has, like Hugh Hewitt, also been supporting Miers. I consider him a "big Blogger" and he's been exceptionally eloquent in his support.

madcat said...

Dear Ann,
If you do write such a post, I would love to see you integrate the relevance of the following passage from Federalist Paper No. 76, explaining why the advise and consent role of the Senate is necessary in the confirmation process:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . .

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

Jonathan said...

It would be nice if the SC were composed of learned scholars who consistently followed the letter of the Constitution, rather than an appointed legislature with life tenure where some members ignore the law when it suits their personal agendas to do so.

I would have preferred Bush to nominate someone like Luttig instead of Miers, but I think it's understandable why he didn't. He wants to implement his version of a conservative agenda, and his pattern in appointments is to nominate people who are unquestionably loyal and can be trusted to faithfully implement his program. Miers fits this model, is female, and unlike someone like Luttig her confirmation will neither consume much political capital nor become a fundraising magnet for Bush's opponents. I don't know if she will be a competent SC justice, but if the Court is going to be as political as most discussants assume it will or should be, I don't think Bush deserves criticism for responding to reality by making a thoroughly political nomination. As a political maneuver, the nomination of Miers was brilliant.

The populist angle on this nomination is also attractive to some of us. The legal profession and law schools don't own the Supreme Court, and perhaps we will be forgiven for believing that elite legal opinion should receive less deference in evaluating high-court judges. The commenter who mentioned Miers's business experience as a plus had it right. Too many judges do not seem to appreciate the burdens imposed on their fellow citizens by capricious or vague court decisions, and this is an area where real-world experience, particularly in business, might be as valuable as scholarship. (Kelo is a good example of a decision that might have benefited if more SC members had lived longer on the other side of the bench. Sure, the underlying issues may now be resolved in State legislatures, but the human costs of all the property seizures and litigation that in many places will now ensue before the rules can be stablized will be huge -- as might have been forseeable to a judge with more business exerience than some of the geniuses on the SC.)

Pastor_Jeff said...


Wow. Thank you.

Arrogant, comabative, thin-skinned, hyper-competent, generous, principled, and absolutely brilliant; Hamilton was the man. Can't help lovin' that Federalist of mine.

The jury is still out on Miers, but it seems the defense simply made an opening statement, brought in one character witness, and then rested.

Ann Althouse said...

Quxxo: Kevin Drum first linked to me by calling me a wingnut. Because his blog is so prominent, I had it out with him in email and he apologized, albeit only in email, never on the blog where he originally defamed me. Since then, and after he was criticized for an ill-considered post about how women don't make good bloggers, he has given me some positive links. And that's the full version of that story.

Pastor_Jeff said...

Jeff Goldstein:

[Ed Gillespie's] attempt to suggest that elitism is a bad thing, particularly when it comes to selecting a Supreme Court justice, is quite bizarre in precisely the same way it would be bizarre to charge the New York Yankees with elitism for signing Alex Rodriguez to play third base, even if Harriet Miers can, like most of the rest of us, manage to slip on a glove and throw her body in front of a ground ball.

madcat said...

Pastor Jeff-

My pleasure... the Constitution's Founders really did hit the nail on the head many times in building a foundation for us, didn't they? At times like this I wonder if the foundation really will prove strong enough, and I have to wonder as well what Hamilton might ask of Miers were he serving on the Senate Judiciary Committee today.

Thanks for the above quote on the White House's "elitism" spin too.

Pastor_Jeff said...


I think the mental picture you just painted did it for me: Imagine yourself presenting your appointee before any of the Founders.

Would I be embarrassed to present John Roberts? No. Scalia? No. Harriet Miers?

"Mr. Jefferson, here is whom I believe to be the best qualified candidate for the Supreme Court..."

And not to get into a discussion on educational philosophy, but if we need to produce well-educated citizens, shouldn't more emphasis in school be on actually understanding our government, especially the Founders?

alkali said...

Evan Schaeffer writes:

I've searched elsewhere and have concluded, in part based on this post and its comments, that Miers simply wasn't a writer. I find that troubling in a Supreme Court nominee, but it's probably typical of people who rose up within the ranks of large civil defense firms.

Er, what do you think people who work in the litigation practices of large firms do all day? It's not all document review and recruiting lunches, pal. It's Microsoft Word, gallons of coffee, and reams of paper.

Evan said...

alkali: I'm a lawyer who, like you, graduated from document review and recruiting lunches long ago, so I understand where you're coming from. But I don't agree with your point. When I used the term "writer," I used it in the sense that it's generally understood, which is "published writer." For example, I've personally written thousands motions and briefs. (Big deal, by the way.) During that same period, I've published only three articles about legal writing for legal journals. When I list my writing credentials, which of these documents do you think will make the list?

The debatable point is whether being the sort of person who cares about writing occasionally for publication means anything when you're a nominee for the Supreme Court. I'm not sure about that. I do know, however, that a brief in support of a motion for summary judgment and a law-review article are completely different animals. I don't think you'll change my mind about that.

Sloanasaurus said...

I still think the elitism charge has a lot of truth to it. People tend to run in their own circles.

At the same time, however, if Miers isn't an elite you probably shouldn't expect her to start hanging out with liberals the moment she is on the court. As such, don't expect her to be a liberal on the Court.

Ann Althouse said...

Sloan: I disagree with that last prediction. I think both sides will try to win her over, will reach out to her. They won't shun her, because they'll want her vote. The question is which side will be more effective? Why wouldn't Souter, Breyer, Stevens, and the only other woman, Ginsburg, be more effective? The weaker the new Justice is, the more affected by persuasion she may be. Also the larger legal world will love her more if she is liberal. Why wouldn't she gravitate toward that, especially if she has reason to feel insecure?

Mary said...

Oh, low blow posting the Barney material. Really think that sums up the extent of her career? If you're so sure she's not qualified, why pick this to focus on?

Cheap shot, Althouse.

alkali said...

Evan Schaeffer writes:

When I used the term "writer," I used it in the sense that it's generally understood, which is "published writer."

Ah. I didn't understand the question to be, has she written for publication (answer: pretty much no), but rather, could she write on a level comparable to a Supreme Court opinion.

[Obvious joke reference: "A wot of it is wighting. I do all my own wighting." "I didn't weawize you wote." "I don't. ... I'm weferring to ewectwic wighting. You see, in pictures, bwight wighting can be vewy unfwattering, particuwawy if it makes my wegs wook white. Baba, am I wong to want to appear wadiant?"]

John(classic) said...

Evan Schaeffer said:
"I do know, however, that a brief in support of a motion for summary judgment and a law-review article are completely different animals"

Well yes they are:

1. A brief is judged by a client and a judge. A law review article is judged, at least for publication, by a student.

2. Decisions are based on briefs, thus briefs influence the law. This is only rarely true of law review articles.

3. There is a great premium placed onsuccessfully communicating in a brief. No great premium is placed on this in a law review article.

4. A brief is more difficult to write because the lawyer's ethos has been damaged by the fact that his position is that his client pays for.

5. Real money or personal liberty, and the lawyer's reputation, necessary for his livelihood are affected by a brief. A law review article does not dtermine money or personal liberty. It may affect the author's reputation but this may be much less critical to his livelihood.

5. Briefs lead to decision. Law review articles lead to debate.

There are probably other differences as well.

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