My "Mellowing on Miers" post yesterday got so much attention that I feel I'm vulnerable to the accusation that I deliberately went negative to make an event out of returning to the fold. And since I haven't endorsed the nomination yet, you could even say that I'm dragging out the return so I can get attention more than once.
But that's not it at all. The doubts I expressed about Miers were exactly what I thought. I objected to her lack of engagement with the great issues and theories of constitutional law. I was acting like what I am: a conlawprof.
I know exactly how I arrived at a state of self-awareness and then a feeling of being distanced from this identity: I read a few too many messages from conlawprofs on the Conlawprof email list. I didn't read these messages closely. I'm too busy to read that much of what flows into my email in-box from this list, so no one who is actually writing on the list should take this personally, but the sense I was getting from the ongoing conversation was that conlawprofs are rather vain about their own line of work. They feel sure that constitutional law is what they do.
Accordingly, they -- we -- think Miers should be reading a lot of books and articles of the highly theoretical sort that win accolades in academia. The Senate Judiciary Committee should test her with questions about these books, and if she reveals she's never bothered with such things, we will know that she is not worthy to hold a seat on the Court and have the power to decide what the Constitution means.
It was the mindset of the conlawprof -- my own mindset -- that repelled me and made me look again at what Harriet Miers is.
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Frankly, I think you were right in the first instance. And I'm not a conlaw prof.
- how refreshing, seriously. I still lost $180.00 because of Fink George and his pet lawyer. I believe she will hold up quite well when interrogated by the Senators at the hearings. By all accounts, she works long hours and does not seek to have her name in front and on top. Any head of a state BAR Assc. has to have some grit and sand and integrity to have attained that position, which I suspect will strongly manifest during the hearings.
Jim: Roberts met the standard of who I'd pick if I were President. But I'm not the President. The standard of who to vote against is different. The issue re Miers is whether she falls below it.
Jim-
A more important question is, which party's nomination would she be seeking? ;)
Jim, Simon: The Republicans should tap me to go against Herb Kohl!
The problem with the opposition to Miers is that some of it has used rather bad reasons for opposing a bad nomination. That does not make the nomination good (this is not the same as multiplying two negative numbers).
One does not need to be a con law prof to be on the Supreme Court. Further, looking at the Court as a whole, one should expect to see some people with extensive practice experience.
Of course, the idea that the current Court lacks anyone with practice experience is odd. Roberts was in private practice for about 12 years. Stevens's official bio is less clear, but he appears to have practiced for 15-20 years. Scalia spent six years in a firm, and Kennedy had 14 years of private practice. Where is the uniqueness of Miers's experience against that line-up?
The nation justifiably expects nominees to the Court to have some proven experience in thinking about issues like those faced by the Court (defined very broadly) and some proven capacity for depth of thought. Regrettably none of these exist for Miers. Those who know her best expressly disavow the label deep thinker, and her very capable work as a lawyer and manager does not appear to have engaged the kinds of issues she would face as a Supreme Court Justice.
She is undoubtedly a very capable lawyer, but that alone is an insufficient qualification for the Supreme Court.
Ann,
I do appreciate your self-analysis. I am not surprised that Con law profs are self-important - I think many of us are. No surprise that they think that the absolutely most important, critical, etc. thing that the Supreme Court does is Con Law. Of course, for me, it is probably statutory interpretation of federal laws - as I have noted before, excluding Bush v. Gore, the other case that has affected me personally in the last couple of years is the Festo patent case.
Nevertheless, what bothers me about the whole dialog here is that she is assumed to be ignorant on the (apparently one and only relevant) subject and not smart enough to play with the Big Boys (and Girl).
This is the common wisdom, but I have yet to see any real evidence that she isn't up to it. It all seems to come down to smoke, mirrors, and the common wisdom.
What I see is a fairly blank slate. A very competent and accomplished attorney who has really nothing for or against her in writing. But after Bork, that is what we are going to get on the right - stealth candidates.
Can you envision the fun that the left would have with a Posner nomination? Yet he is obviously brilliant enough. It is just that he is one of the furthest things from a blank slate on the appelate bench. No, we are stuck with stealth candidates, for better or for worse.
One thing that I do respect about you is this. That if you ultimately do come out against her, it won't be because of the herd instinct of the your Con Law peers.
Ann-
Jim, Simon: The Republicans should tap me to go against Herb Kohl!
See email just sent to your U-wisc address...;)
Crank: My opposition was an abstract theory, which I've backed down from. As to the actual nominee, I'm deferential to the President, who has the power of appointment, and I await the hearings (and other information). I don't expect or want Miers to commit herself to particular outcomes and have never been in agreement with the vocal social conservative contingent, which is her primary opposition.
Waiting for the hearing might be the responsible thing to do (unless you're a blogger), but
1. Testimony from the nominee was probably originally intended to make confirmation more difficult. Not that Miers couldn't use the hearings to her advantage; its just not likely.
2. If she limits herself to the "Roberts" rules, we will learn little additional information.
3. If she expands the scope of testimony beyond Roberts, she will alienate some issue advocates.
4. Also, if she expands her testimony, she will appear less judicious, and thus less qualified, than Roberts.
5. This all depends upon Senators asking decent questions.
6. From the view of the pundocracy, she might win the battle of expectations, but surely this isn't a reason to vote one way or the other.
7. I deeply fear an Admiral James Stockdale moment.
It's never too late Ann.
Your willingness to re-examine your views on an issue, and to publish a more enlightened perspective is admirable.
I applaud you for your ability to look at this again. I think you've got it exactly right. It's at least partly a turf war, with the conlaw profs wanting to protect their territory. After all, if any old lawyer can do it, it loses its esoteric cachet.
And, by the way, I don't think this is a special characteristic of conlaw profs. I think it goes with the territory of many professions, and many groups.
Professor A: Do you think Dick Morris could take time off his book tour to get a "Draft Althouse" movement started against Senator Kohl? Have you got a PAC started? Can I paypal to it?
Secondary benefit: You'd be junior senator to Russ Feingold. I hear he'll be single soon....
by no means was her law firm the largest firm in Texas. i dont know what gave you that idea.
and ann i wish you wouldnt back off your initial negative reaction to miers -- do you really think someone who wrote those goddawful letters to her state's most important politician has the independence or seriousness of mind necessary to be on the USSC??
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