October 21, 2005

"Your worst nightmare."

My favorite part of Gordon Smith's call for Miers to withdraw:
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.)


Too Many Jims said...

Given your TiVo blogging of the Roberts hearings, shouldn't the Senators be as (or more scared) of that than Miers is?

griffin d. politico dog said...

Isn't this getting pathetic? I pity the woman.

Is there any way for this to end that is not to be completely humiliating for her?

ALH ipinions said...


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…

37383938393839383938383 said...

The defenders of Miers’ nomination say that Miers is qualified. Essentially, they claim that she is a complex litigator with excellent case management skills, but not a constitutional scholar of the first order. The former is more relevant to adjudication, they say. Fine. Let us take the premise seriously. In that case, then, it seems the Senate should ask her questions related to complex litigation and case management, not obscure constitutional questions.

1. What does she think of Lon L. Fuller’s “The Forsm and Limits of Adjudication”? Has she read it?
2. Does she have an understanding of comparative procedural systems in practice? For instance, what does she think of Mary Ann Glendon’s analysis of foreign legal systems in “Comparative Legal Traditions”?
3. What does she think of using preclusion rules as an alternative way to overcome joinder complexity? In particular, what does she think of Justice Rehnquist’s dissent in Parklane Hoisery Co. v. Shore?
4. How does the Due Process Clause figure in precluding persons that did not participate in a prior case? In particular, what is her opinion of Richards v. Jefferson County, Alabama, a SCOTUS case?
5. What does she think of preclusion after notice and opportunity to intervene, particularly in the context of reverse discrimination suits where consent decrees have already been entered? For example, Martin v. Wilks, another SCOTUS case? What is her opinion about Congress’ response to this case, with 42 U.S.C. sec. 2000e-2(n)?
6. What is her opinion of the Eleventh Amendment jurisprudence we have thus far? Does the text govern? How do we reconcile the text of the Eleventh Amendment and the subsequent jurisprudence? What is her opinion of the diverging approaches of doing so?
7. Is she concerned about the limitations on aggregation imposed by territorial jurisdiction? How, in her opinion, does this play into asbestos litigation? Does she have an opinion of In re Asbestos Litigation?
8. Does Strawbridge v. Curtiss announce a constitutional rule, or is the diversity required for diversity jurisdiction by the constitution broader or narrower than what is promulgated by that case?
9. When is it appropriate for judges to use the All Writs Act? Was the Terri Schiavo case an example?
10. Is compulsory consolidation in bakruptcy cases fair to litigants? Why or why not? Do litigants have a constitutional right to be masters of their own complaints?
11. What are relevant policy concerns of class actions? Discuss Hansberry v. Lee and In the Matter of Rhone-Poulenc Rorer Inc. In particular, is Judge Posner wrong? Why or why not?
12. Are there constitutional or jurisdictional limits on mandatory class actions? If they exist, how do they play into the case of In re Federal Skywalk Class? Was the outcome of that case justified? Why or why not? What conceptual framework would you use to decide that case today?
13. What is federal common law? How is it different from general common law in federal courts? Discuss In re Agent Orange.
14. You are on record as opposing judicial activism. Which judge is more activist in your view: Jack B. Weinstein or Edward Becker?
15. What is the proper use of a court’s remedial powers? Discuss Missouri v. Jenkins. In addition, what is the rightful position, and what are some common critiques of this analytical tool?
16. How much power should magistrate judges have in complex antitrust cases? How could overpowering magistrate judges possibly conflict with the guarantees of the 7th Amendment?
17. You have experience with antitrust law. Do you agree with the result in Topco? What could possibly be wrong with it?

If she can't answer these questions, wouldn't it be fair to vote NO? And wouldn't one conclude she shouldn't have been nominated in the first place? And need we really ask her these questions to recognize how unqualified she is?

katiebakes said...

I think that comment should be in masthead consideration!

john(classic) said...


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."

griffin d. politico dog said...

ALH, who is not being fair? Why should Ann maintain openness to someone who is not qualified. Observing that someone lacks qualifications is not being close-minded. Ann considered it, found her unqualified, and stated so.

Ann Althouse said...

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.

37383938393839383938383 said...


Anyone in my Complex Litigation class in law school however many years ago could answer those questions. And most of them have yet to try a case.

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.

Furthermore, most if not all of those questions are open-ended.

So your concerns are really irrelevant. Maureen Mahoney, I bet, could answer those questions, with about a weekend's worth of prep, if that. I mean, I did it in that much time when I was in law school! And I get out all the time, baby!

EddieP said...

Critical Observer

First you pile up a bunch of questions that you claim should challenge and expose Miers. Then you turn around and claim that you and Maureen Somebody learned all the answers in a weekend.

Your condescension is showing.

john(classic) said...
This comment has been removed by a blog administrator.
The Mojician said...

Denny Crane

john(classic) said...

"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?".

37383938393839383938383 said...


The point wasn't that Miers MUST know the answers to these questions. The point was that she is supposedly a great complex litigator. All those questions are from a complex litigation textbook; it would take you a week to prepare, and not much research.

She has more than a week to prepare, and I can send her the textbook. So if she is supposedly a great complex litigator, why shouldn't she answer questions about complex litigation?

37383938393839383938383 said...

Oh, wait, I see...you guys don't REALLY think she is a great complex litigator! Hey, then why was she nominated...I thought her complex litigation skills were her strong point????!!!!!

37383938393839383938383 said...

First you pile up a bunch of questions that you claim should challenge and expose Miers. Then you turn around and claim that you and Maureen Somebody learned all the answers in a weekend.

No, I said it probably wouldn't take Maureen Mahoney more than a weekend, and that that's how I studied for my complex lit test. I'm not being condescending at all. I think a SCOTUS nominee who is claimed to be a great complex litigator should be able to articulate a judicial philosophy related to complex litigation better than I (someone who took one class on complex litigation), and I think that one SCOTUS nominee shouldn't far outweigh another in the intrinsic merit department. Given that the Bush administration was looking at Maureen Mahoney for SCOTUS before it settled on Harriet Miers, what is wrong with comparing their quantities of intrinsic merit? Why shouldn't we question that Bush picked the woman of lesser quality, especially when he calls his detractors "sexist"?

I'm not sure how is it condescending to question false charges.

john(classic) said...

Who has claimed her to be a "great complex litigator"?

Henry said...

Back in your corners and declare yourselves. I can't figure out who's fighting for whom in this debate.

DNR Mom said...

I'm with Katie Baker. Ann/Tivo comment is masthead material.