October 12, 2005

What made me take another look at Harriet Miers.

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.


Simon said...

Frankly, I think you were right in the first instance. And I'm not a conlaw prof.

Goesh said...

- 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.

Guy Murray said...

Nor am I; however, if Mr. Bush does not withdraw the nomination, or Ms. Miers herself--then I think she is at least entitled to a hearing, with a vigorous examination of her qualifications. I'm leaning against--but even that Constitutional theory of Due Process requires that Miers gets the hearing . . . then the consequences.

Too Many Jims said...

On Roberts' first day you said something to the effect: "Hyper competent, that is the way I like my Supreme Court Justices."

Has your standard changed or are you just reserving judgment as to whether she is "hyper competent"? Personally, I doubt she can have the level of competence/confidence that Roberts had because I think few could.

Even if it would be good to have a lawyer without a well articulated view of constitutional law, why *this* lawyer? Even "lowering" the standards like this, what (other than calling the President the "smartest man she ever met" and "the best Governor ever") makes her even the best qualified of the subset of lawyers who don't have a specific view of constitutional theory? Even if we were to search for 60 year old women non-judge lawyers who don't have a specific constitutional position staked out, I suspect there may be more distinguished candidates.

Ann Althouse said...

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.

Too Many Jims said...


When are you running for President? I like your standards a lot better than this guy's.

Simon said...

A more important question is, which party's nomination would she be seeking? ;)

Allah said...

It's not that she needs to have a professor's expertise in con law. There's a middle ground between professor and student; is it too much to ask that her knowledge of the subject be closer to the former's than the latter's? Is there any evidence that it is?

I'm against the nomination because I like to pretend that Republicans stand for meritocracy. It's becoming increasingly hard to maintain that illusion. Bush is entitled to name who he wants, just like I'm entitled to spend Election Day next year doing housework. If he can't be bothered to make an effort, neither can I.

Ann Althouse said...

Jim, Simon: The Republicans should tap me to go against Herb Kohl!

stealthlawprof said...

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.

Too Many Jims said...

Jim, Simon: The Republicans should tap me to go against Herb Kohl!

But Ann I want to vote for you for President because I like your standard for who you would pick as judicial nominees, I am much less clear about whether I like your "who I would vote against standard." Though I would pick you over Kohl for other reasons.

Crank said...

I remain convinced that you have mellowed based upon an abstract theory rather than the actual nominee. I'd love to have a brilliant veteran trial-level litigator on the Court, but I'm still waiting for the evidence that Miers is that person.

Bruce Hayden said...


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.

Allah said...

"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"

But why is that not a fair assumption, Bruce? She's 60 years old, has been practicing for decades, and hasn't written a single article or argued a single major case having to do with constitutional law.

Does anyone else remember the dust-up last year on some of the right-wing blogs when Hillary was quoted re: Kerry, "You don't have to fall in love, you just have to fall in line"? How is that any different from what the Miers supporters are asking us to do now?

Simon said...

Jim, Simon: The Republicans should tap me to go against Herb Kohl!

See email just sent to your U-wisc address...;)

Ann Althouse said...

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.

PD Shaw said...

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.

ALH ipinions said...

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.

neo-neocon said...

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.

pud252 said...

Ann - you are letting your own feelings about your reaction to the introspection of other ConLaw Profs cloud your original judgement. This isn't about how you feel about reading other people's posts. It's about whether Harriet is qualified to be on the Court.

Seriously. Think about what you considered being important prior to the nomination and measure against that. Would you have wanted some corporate lawyer, best friend of the President nominated?

Ruth Anne Adams said...

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....

biggovgop said...

But have we got standing to sue the president for fraud? Surely the GOP can ask to have him committed to an institution until he's recovered, right? Admittedly, these are not the same as your question.

At least Jay Leno is addressing our concerns, as opposed to the RNC crowd.

ziemer said...

let's all take a test.

1. are the presidents of your state's bar association or the largest municipal bar association qualified for the supreme court?

2. is the managing partner of the largest law firm in your state qualified?

3. is the managing partner of the largest law firm in your state even the most qualifed member of that one law firm?

i suspect that whoever you are, and wherever you are, the answers to all three questions are all no.

The Exalted said...

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??