The Senate is on high alert now, despite your sponsor's strong-arm tactics. You may be able to avoid those private meetings with Senators that seem to be going so poorly, but you will not be able to avoid the confirmation hearings. Thousands of bloggers will be hanging on every word of those hearings. Your worst nightmare: Ann Althouse has Tivo!
(Here's an example of my TiVo-blogging the Roberts hearings.)
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6 comments:
Ann
You seem proud to be part of a very influential cabal seeking to undermine Bush’s constitutional decision to nominate Miers. But I respect your views enough to assume that you really believe that you’re doing this for the good of the country: “it’s a lifetime appointment” after all. (I assure you, I'm reminded of this fact everytime I read about Clarence Thomas.)
But so far, only politically motivated Senators and cowering White House handlers have purportedly assessed Miers’ fitness to serve. My plea to give her a chance derives from the fair hearing she clearly deserves. Let the judiciary committee interrogate her and then vote on her nomination. And, if she passes that test, then let the Senate “vote her up or down.” (Remember the nuclear option? Indeed, why are those who called for such fairness for Janice Rogers Brown, John Roberts and others now seem so determined to deny Miers equal justice.)
Ann, surely your political and intellectual honesty demand no less for Miers…
Critical:
If a nominee could answer those questions I would firmly oppose the nominee.
Clearly the nominee would not have gotten out enough.
I am not saying that facetiously--well just a little bit.
Somehow your questions reminded me of the drunken porter in Macbeth:
"Who's there, in the other devil's
name? Faith, here's an equivocator, that could
swear in both the scales against either scale; who committed treason enough for God's sake,
yet could not equivocate from hell to heaven: O, come
in, equivocator."
ALH: I think it would be better for her to withdraw than to continue into what will in all likelihood be a humiliating experience. I will not hold back pointing out the problems, however, just to be nice to the poor woman. This is power we are talking about.
Jim: You're right about what I'm willing to say about the senators, and Roberts was so good, it made them look especially bad by contrast. Miers will lower the contrast.
"I'll also note that anyone who teaches Civ Pro or Complex Litigation could answer those questions. Or anyone who has been a sitting federal judge for a good number of years. Or any litigator with a lot of experience in complex litigation -- as Miers is claimed to be."
Well, seat me in the dumb section of the class.
I have no doubt that a law professor teaching Civil Procedure knows it very well.
I clerked for one of the best district judges then around (Walter E. Hoffman of E.D. Va.) . I had a fairly successful complex litigation and appellate practice. I could not answer your questions without research, even before I became a forgetful old geezer.
I doubt any of the judges and justices I have met could, I know they were not taught at the Federal Judicial Center's "baby judge" classes.
Knowing one or many particular areas of law in great depth is not what makes a good lawyer or a good judge in my opinion. Most lawyers are of good intelligence, and given time they can master almost any arcane area.
In practice one does gain a perhaps unhealthy mastery of arcane areas of law and of fact. In my career I once knew a lot about the dormant commerce clause, the Third Circuit's peculiar doctrines on missing deadlines, the dynamics of large trucks, the orgiastic sexual proclivities of night crawlers, and the production and distribution of beet sugar. The very model of a modern, major general...
Some cases have an obvious result, mandated by law or facts. In these, the only skill exhibited by the lawyers or the judge is avoiding screwing up. many cases are not so easy.
In my opinion, an excellent litigator, or an excellent judge isn't so by virtue of how many arcane pieces of knowledge he holds at one time in a presumably capacious brain.
Rather for the litigator, the excellence comes from being able to express complexity simply, from being able to say why he should win in understandable terms, and being able to show that the law supports his winning. For the judge excellence comes from being able to separate the wheat from the chaff, from being able to separate the essence of the dispute from its complex lagal and factual shell. For cases in doubt, judicial decisions do not rest in the end on fine vagaries of precedent or the law, they rest on a conviction of how it ought be, supported by the vagaries of precedent and the law.
A good and illuminating illustration of this is the Texaco-Pennzoil case. The brilliance of the plaintiff's lawyer was in reducing a case made complex by a Herculean amassing of evidence, law and procedure by the lawyers to a simple "They shook on it. Isn't their word good?".
Who has claimed her to be a "great complex litigator"?
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