October 20, 2005

Why support Miers?

What are the reasons for supporting Harriet Miers? I've been trying to understand that. I find the failure to express dismay at the embarrassing selection rather strange. Let me start a list, based on my observations, of the various sorts of Miers non-critics -- they aren't really supporters, are they? -- based on what I think I'm seeing and a little speculation:

1. Some folks must just love Bush, the man. They're fans!

2. Some people think it serves the overall good of the country (and, perhaps, the world) to support the President, whatever he does. Do not make any trouble for the President. Shhh.

3. Some people think it serves the good of their party to support the nominee. This would include Republicans, who don't want to see anything go badly that involves their side, and Democrats, who think their folks will fare best staying out of a fight as long as the other side is fighting itself.

4. Maybe some people just don't think the Supreme Court matters very much and, when a slot opens, it can be filled with just about anybody. Oh, maybe pay some attention to how the person will vote, especially on one issue that you care about, but other than that... what? -- am I supposed to believe there's some sort of "legal analysis" skill involved here? Don't be so naive! It's all politics!

5. Some people think the Court matters a lot, but they want the conservative side de-fanged. As long as a conservative president is making the appointments, the preference is for minimal judges, the less analytical skill and jurisprudential dedication the better. Let Miers come on the Court as nothing more than a floating vote to be captured by one of the other justices.

6. Some people feel sympathetic toward Miers, the woman. The attacks are mean, I must defend her! She's a human being, with feelings. She's worked hard. She's just a regular lawyer, a decent person, and the attackers are a bunch of elitists who are pissing me off.
Posted by Ann Althouse at 5:59 AM
Tags: ,

21 comments:

Ann Althouse said...

Thanks, Paul. I'd say that's already encompassed in #6.

10/20/05, 6:54 AM
goesh said...

I support her because as she sits on the bench she will doodle and some patriotic clerk will release her doodling to the press , which will show all kinds of hideous caricatures of the American people and our many institutions and traditions and there will be a voter's revolt and term limits will be imposed on high-handed Clarence, prunish Ruth and the rest of the gang in black.

10/20/05, 7:09 AM
sean said...

1. Extensive private practice experience (Stuart Taylor wrote recently about how wildly divorced most S.C. justices are from any practical experience in anything).

2. Will overrule Roe v. Wade (maybe not for John Ely's reasons, but gets to the right result).

3. Reid indicated that he would support her, so she is confirmable (absent what Kaus described as the double cross of the decade).

4. Succeeded in the most demanding type of legal work, rising to the top of a big firm, rather than in the more sheltered pastures of academia or government.

10/20/05, 7:29 AM
goesh said...

Sean has a way with words - "..sheltered pastures of academia or government" - ouch!

10/20/05, 7:39 AM
Adam said...

Sean, I am a commercial litigator. There's no way what I do is more demanding than intellectual property law.

8. If Miers doesn't get the slot, it might go to Judge Luttig, and if he gets the slot, then it makes it more difficult for Justices Scalia, Thomas and Roberts to determine who their clerks will be, and we can't have that kind of increase in transaction costs while we're fighting a war against terror.

9. Because however bad she is, she'll probably be doing it for ten years fewer than her replacement.

10/20/05, 7:48 AM
Ann Althouse said...

Danielle, Sean: I've made the practitioner point myself. But I don't believe Miers is that person. She moved into law management and bar politics and Republican politics. She's not a lawyerly enough lawyer to fit that model.

10/20/05, 8:43 AM
Unknown said...

We need at least one person on the court who's not blinded by the institutional aura of John Marshall's legacy.

10/20/05, 8:47 AM
Ann Althouse said...

Sean, your #2 is encompassed by my #4. Your #3 is implied by my #3.

Paul: The "elitists are pissing me off" point is in my #6, though you may think my #6 has too many things in it to be a single point. Check out my #3 if you're vigilant about two-ness.

Matt: You might convince me to add a #7: Some people may actually believe the argument that her religion will make her a good judge. I don't know if I've seen anyone express that belief, though I've seen people who support her try to get others to buy the nomination on that ridiculous ground.

10/20/05, 8:51 AM
john(classic) said...

Perhaps #7 is that the common criteria bruited about for a Supreme Court nominee are wrong?

I think the academic community is doing the country a considerable disservice by attempting to push academic merit as a qualifier onto a non-academic position, and, along with the politicians, by asserting that ideology ought be an important, if not the important, criterion.

Well from this humble former practitioner--it just t'aint so.

What I want in a judge above all else is someone who is honest, fair, and just.

I know those concepts seem hokey and, ill-defined, but they have meaning and they matter.

"Honest" means that if the evidence or the case doesn't match the judge's preconception, he will go with what's presented to him. It may be a way of saying "open minded".

In my experience, brilliant judges often fail this criterion. They tend, I think, to build up very clear pictures in their mind of what things ought be, and are less willing to be persuaded that in this case they are different, or are willing to bend the case presented them to present things as they think they ought be..

"Honest" also means an opinion that squarely confronts all the facts presented and explains the reasoning that from those facts reaches the result. No cheating in the intellectual process.

"Fair" also comprehends "open minded", but perhaps a bit more broadly. A justice needs to recognize that he has predilections and be willing to put them aside. It also means that he will avoid, to the extent possible, having a case or decision prejudiced by irrelevancies such as one's ongoing feud with another justice, the crummy job of one counsel, "hot" points in one's makeup etc.

"Just" requires that the justice recognize that the case before him deals with real people and is not just a framework upon which to hang policy issues. Yes, a job of the Supreme Court is to determine policy and to set precedent for all the federal courts, but it does so in the context of an actual case and cannot lose that perspective. It must also recognize that legal theories, no matter how well thought out, often are holed by the rocks of reality. An "unjust" result is not merely an incidental cost of a great theory of the law, but an indication that the theory is wrong.

Finally there has to be recognition that a Supreme Court is a composite creature. There is a powerful tempation to say this Justice of that Justice is a great Justice, but that really is not what matters. What matters is the overall court. Diversity of strengths and weaknesses does make for a better court if the strengths fill in for one another. I detest the racist "diversity" as propounded by many in academia, but true diversity of individuals makes for a better army squad, programming team, ecumenical council, departmental faculty, and Supreme Court..

If you place Harriet Miers into this framework, I think you obtain a much different view of how fit she is for the court. That's not to say the Miers necessarily ought be a justice. Rather she ought be considered in a different framework than commonly now applied.

10/20/05, 10:41 AM
JBlog said...

I've had a difficult time getting worked about this -- being trying for weeks, but just can't do it.

But I think it's an incredibly shrewd move that has completely befuddled the Democrats (like that's hard these days). And the Far-Right ranting about her actually makes her look like a moderate, making her more palatable to the public and further befuddling the Dems.

Brilliant.

10/20/05, 10:44 AM
john(classic) said...

Three typos in one line of the post above seems a bit much:

please replace:
"There is a powerful tempation to say this Justice of that Justice is a great Justice, but that really is not what matters."

with:

"There is a powerful temptation to say that this Justice or that Justice is a great Justice, but that really is not what matters."

I am a Southerner. It's hard working in a foreign language.

10/20/05, 10:59 AM
john(classic) said...

A Supreme Court Justice fascinated by the Apprentice and terrorized by squirrels and with a suspicious amenity to chocolate bar bribes

Do you think she would blog during oral argument? I can hear the hiss of air leaking from the pompous lawyers and fellow justices already.

Let's go for it. Who has Card's ear?

10/20/05, 12:33 PM
Ann Althouse said...

Those of you who think you're talking to me when you make the anti-elistist argument need to go back and read my "Mellowing on Miers" post! So you don't want an academic type. Fine! But why is she the non-academic type for the slot? You need to focus on the issue: why Miers? The question isn't: why are some other people not good choices?

10/20/05, 1:38 PM
john(classic) said...

Stranger:

"What about Harriet Miers sets her apart as being an exemplary character with regards to honesty, fairness, and justness?"

First, I stress that these are small indicia and much extrapolation. We don't know enough about her yet.

That said, let me try to answer your question:


1. Meier's Dad died and left the family in straitened circumstances. She had to get a job and a scholarship and live at home to stay in school.

Being on the wrong side of the fickle finger of fate teaches that all doesn't go according to plan. That is related , distantly, but I think truly, to my point about good legal theories being holed by reality.

2.Miers was born agin when she was somewhere around 50. I don't think being religious is per se good, but in her case it does reflect being willing to make a major change in one's character based on experience. As with the author of "Amazing Grace" I have more respect for someone who comes to a different religion on the tail end of adulthood than one who is simply inculcated with it in childhood and goes through life with an unchanged faith. You or I might not reach the same conclusions, but it reflects an honesty that says "I look at the facts of my life and decide I must change".


3. She is by all accounts a detail person (missed bar dues a troubling contraindication). I dislike detail people, but recognize the need for them, and that detail people tend to be very fact oriented. A number of observers give a picture of her carefully considering the facts and then coming to a conclusion. Good -- the court needs that and it fits within my definitions of "honest" and "just".

4. Her practising legal career seesm to have largely consisted of advising others -- with only occasional trials. Clients seem to have been pleased with her advise. Performing well a lawyer's function of advising a client requires a peculiar dispassion. You have to tell the client wht you think he result will be not what you would like it to be. An inability to shed predilections is damaging. See my definition of "fair".

5.I have the impression that a lot of people who were on the other side of issues from Harriet Meirs like and respect her. Certainly her opposing lawyers in Texas do. She continued as managing partner long enough for a coalition of the disappointed to become a majority. She was suggested by Reid, and until politics became dominant seemed to be well regarded by a number of democratic senators. Her opponents on the Dallas City Council seem to respect her.

That usually means someone of extraodinary people skills or someone who reaches decisions honestly.

Finally, and quite importantly, though not within my trio of honest, fair, and just is the matter of does she make the court as a whole, better or worse. I previously posted on this.

Would I vote for her were I a Senator. I don't know yet? She does look promising to me. I would want to learn more about her.


And, of course, any small woman who plinked at cans with a .45 has something out of the ordinary about her (grin).

10/20/05, 1:54 PM
Harkonnendog said...

7. Some people think Justice Thomas is by far the best of the current crop, and find many parallels between Thomas and Miers.

10/20/05, 3:09 PM
alkali said...

Sean writes:

Sean, I am a commercial litigator. There's no way what I do is more demanding than intellectual property law.

It is if you're doing it right. (ducks)

Effern enumerates as a qualification for a nominee to the Court:

He or she is the best available candidate for the position

"Best available" is not a meaningful standard when applied to Supreme Court nominees. There are easily a hundred (and probably five hundred) living American judges, lawyers, and politicians who are well qualified to sit on the Supreme Court. (I express no opinion on whether Miers is one of that less than exclusive number.)

(This is a weak analogy, but suppose you were asked who the greatest living film actor in the English-speaking world is: any fair-minded person could easily come up with a list of 20 plausible candidates, and it would be foolishness to insist that your particular choice was indisputably the "best.")

10/20/05, 3:41 PM
alkali said...

Oops, it was adam who wrote the first bit. Sorry about that.

10/20/05, 3:41 PM
Matt said...

I agree that POTUS is under no obligation to pick the "most qualified" person to be on SCOTUS. But when POTUS gets up and says of Miers that "She's the best person I could find," doesn't that beg the question of "where exactly were you looking?"

10/20/05, 4:29 PM
john(classic) said...

Stranger--

"She is only getting this nomination because of her personal connection to the President. She is not exemplary in any other way. "

I don't think that is completely fair though true.

Look at it this way. My neighbor recently asked me whom I would suggest for some septic tank work (that is a lot like judging, right?).

I recommended the people we have done business with and been pleased with for 20 years. Are they the best? Likely not. But they are very good, and, more importantly I know that.

The equation thus is not simply one of "who is best?" as decided by some great umpire in the sky or by the rigorous judging exam Peter Cook flunked before he became a coal miner.

It is rather "whom is best" times the "certainty that this person is best". The more critical the choice the more emphasis should be put on certainty.

This ought not be an unusual process. It is exacly the same one that my friend,neighbor, anmd cardiologist explained when he gave me a choice of two cardiac surgeons for my heart surgery. One, he said, he knew very well and had high confidence in. The other a newer surgeon, by repute was exceptionally gifted, but my cardioligist did not have the same extensive experience with him. I went with #1.

I presume that with Bush, Miers is someone that he has a high degree of certainty with. We don't, but then we weren't elected to make the choice.
So is the personal connection important. Sure it is, but not in the demeaning way that you suggest.

Of course, if I disliked Bush and had little confidence in him, I would probably tend to discount this factor, or regard it as a negative (grin).
===============

The "rigorous judging exam" is at: http://www.aole.org/R&D.htm

under the link "Hacking and Hewing"

10/20/05, 5:17 PM
sean said...

Well, Ann, to equate "my preferred nominee would overrule Roe" to "it doesn't matter who's on the S.C." is disingenuous and unfair. You might fairly call my jurisprudence "results oriented," but do you truly expect anyone to believe that your academic colleagues are different? Do you think I haven't read Ackerman, Dworkin etc.? Do they have any jurisprudential (as opposed instrumental) principles at all? You know that they do not.

But step up to the plate. Name some candidates who are (i) present or former managing partners at AmLaw 200 firms (the pinnacle of professional achievement, and much more demanding than what you or anyone you know does), (ii) reliable votes against Roe, and (iii) confirmable. The list isn't long.

10/20/05, 8:29 PM
Ann Althouse said...

Beldar: I would like to reframe my statement. I shouldn't have said she's not a lawyerly enough lawyer. I meant she's not a lawyer-y enough lawyer.

10/21/05, 7:24 AM

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