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Wednesday, October 19, 2005

Miers' practice experience as measured by volume of trials

The Washington Post, and probably a great many other news outlets as well, in reporting on Harriet Miers' answers to a Senate Judiciary Committee questionaire, had this to say about her litigation practice experience:

With a corporate practice that rarely involved trial work, Miers, 60, said that she had identified eight cases that went through complete trials, of which she was the lead counsel for four.

Of this, my new blogospheric best friend (for reasons shortly to become obvious) John Podheretz writes today on NRO's The Corner something I'm sure he believes sincerely, but about which he's woefully misinformed (emphasis mine):

I've now received about a billion e-mails from lawyers explaining that there's nothing wrong with the fact that Harriet Miers only participated in 16 courtroom cases in a career spanning more than 25 years — that 90 percent of all legal matters are settled, that's what lawyers are supposed to do, and so on. That's all nice, but it's beside the point. Miers's defenders, the brilliant Beldar among them, have praised her choice because her career as a working lawyer will supposedly provide her with unique and valuable experience when it comes to the Court. The clear implication of this line of argument is that she knows the law from the other side of the judge's desk. Sorry, but that won't wash. It's one thing to argue that courtroom experience as a lawyer prepares you for the back-and-forthing on the Court. It's quite another to argue that a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts. If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever.

Note well: I have certainly taken more different contributors to NR/NRO, including ones with editorial positions, to task over the Miers nomination in my blogging than I ever have over any previous issue, and certainly more of them than at any other institution or publication. My arguments have sometimes been straightforward, but they've also sometimes been laced with snark; and snark always carries a greater chance of giving offense, either intended or un-. Throughout my blogging on the Miers nomination, however, I've maintained a running side-channel of email correspondence with most of those same NROniks, who have — invariably and without exception — been exceedingly gracious, thoughtful, mature, and civil, and often quite funny as well. I've had occasion to apologize privately to one of them for a fairly offensive suggestion that I'd made via email and that he/she persuaded me was unfounded; fortunately that exchange took place before my unfounded suggestion hit the 'net. I've said throughout — and I repeat here to all my readers, including those commenters who've voiced frustration or annoyance at prominent critics of the Miers nomination — that we all have far more in common than separates us, for we wouldn't be having this spat but for the fact that we all deeply, sincerely understand the stakes of each SCOTUS nomination. There are indeed better angels of all of our natures, and especially now, while arguing and disagreeing among one another on matters of great weight and principle, we ought to be solicitous of each others' better angels. JPod's going out of his way in the blurb quoted above to bestow an effusive and not-quite-deserved compliment on me is not him sucking up to me (for he knows I'll continue to state my disagreements with him when and as we have them), but rather a gesture of acknowledgment intended for my better angel, and I appreciate it as such.

I continue to believe, in fact, that very few of the Miers critics are motivated by spite or any other type of ill will. Rather, they've either (a) formed their views based on faulty information, or (b) been insufficiently imaginative to escape their mental ruts as to what sort of nominee may be fit. JPod's comment about Ms. Miers' trial experience is an example of the former, and it's a particularly pithy and well-articulated mistake that I've been predicting in my emails for several days now. Here (slightly edited) is a quote from an email I'd sent to John Fund — whose reporting on October 12th in his WSJ OpinionJournal "Political Diary" column (subscription only, but heavily (within "fair use") excerpted here, for instance) correctly foreshadowed Ms. Miers' questionnaire response (and who deserves due scoop credit for that):

Re number of trials: It would not surprise me if, in fact, she hasn't tried very many jury trials to a verdict, given the nature and stakes of her practice. But Merrill Hartman, who's one of the very best state district judges in Dallas, has been quoted saying that he's had her in his court and she has an effective manner with a jury. I've also been before Merrill Hartman, and he doesn't strike me as an easy grader. A few other things you probably know, but would be remiss not to point out to the public who doesn't: The overwhelming majority of all civil cases settle, rather than going to trial. The system would collapse otherwise. I don't know what the latest stats are state-wide, but I'm sure it's well over 90%, and probably more like 97% would be my guesstimate. Moreover, everything else being equal, commercial disputes of the sort she's mostly handled (as opposed to, say, personal injury cases) tend to settle even more often, precisely because parties who can afford good counsel are typically themselves fairly sophisticated and can make reasonably precise judgments about what the reasonable settlement value of a case is. And in general, the higher the stakes, the greater pressure the parties feel to settle rather than put everything on the line — which means that the percentage of cases being tried to a verdict is usually lowest of all for the lawyers with the most sophisticated practices.

And to present a fair picture, you have to look at more than just cases tried to a jury verdict. You have to also look at non-jury (a/k/a bench) trials. You have to look at cases won or lost on dispositive motions (a motion for summary judgment or, in the federal system, a motion to dismiss that ends the case without ANY trial being held). You have to look at trial-like proceedings, which would include arbitrations, mediations, mini-trials, and the like. You have to look at cases that settled on the courthouse steps because one side was fully prepared and the other, seeing that, chickened out at the last minute.

Win/loss ratios are also misleading. Experienced courtroom lawyers will tell you that the measure of excellence isn't how many you've won and how many you've lost, but how many you've won that you ought to have lost, and how many you've lost that you ought to have won.

Precisely because it's so hard to get actual trial experience, firms all over the country (not just in Texas, but big firms everywhere) have long been looking for "training dockets" or other means, e.g., through pro bono, to get that trial experience for their lawyers. Some big firms in Texas kept doing the traditional high trial volume work — personal injury cases representing insurance companies — after that work became much less economically attractive (insurance companies stopped being willing to pay elite lawyers' rates). But Ms. Miers' original firm, Locke Purnell, [had the] reputation from at least the mid-1970s (when I was in law school) [of] being pretty committed full-time to big cases, mostly commercial cases. For firms like that, I suspect Ms. Miers' total number of trials and trial-like experiences will be pretty typical, but it's very unlikely to be in the "many dozens" range.

I'm highly confident that Ms. Miers' practice included hundreds of cases for which she was primarily responsible, plus others in which she shared responsibility, in addition to the few that were tried to a conclusion. I'm highly confident that she's taken many depositions, that she's argued many a procedural or substantive motion. I'm sure she's engaged in mediations, and perhaps also arbitrations or other forms of alternative dispute resolution. I strongly suspect she's handled evidentiary hearings short of full-blown trials — for example, for purposes of securing rulings on preliminary injunctions or making fact-findings essential to preliminary procedural matters (e.g., whether a privilege has accidentally been waived or whether a defendant is subject to personal jurisdiction in a particular forum).

In all probability, Ms. Miers has been keeping track of her professional time in increments of one-tenth hour from 1972, when she finished her judicial clerkship, though 2001, when she joined the Administration. I hope and trust that even as I write this and you read it, capable minions are combing through her time diaries and/or her firm's bills to compile a list of such things — numbers and types of cases, hearings, depositions, and so forth. I guarantee you that she could not have secured clients like Microsoft and Disney for her reported cases had she not had those experiences, nor gained the professional respect of her peers, opponents, and judges. And I'm quite certain that if one focuses solely on "eight cases that went through complete trials," one will be badly misled — and perhaps, as a pundit, become badly misleading to others — about the extent and nature of her professional career.


But now it's time for another of Beldar's Extended Anecdotes About the Good-Ol'-Days When He Was But a Pup™:

Although I had many excellent sources of learning and inspiration as a young lawyer at Houston's Baker Botts in the early 1980s, two in particular stand out in my memory, and I consciously adopted them as my role models even then. One was the head of Baker Botts' trial department when I began working there, Richard B. Miller. The other was a younger partner in the firm's antitrust department, the late John L. Jeffers, Jr. At a superficial level, the two men could not have been more different.

Dick Miller's posture and manner practically screamed his background as a Marine, and his Harvard law degree was a bit of a surprise given his hardscrabble Oklahoma youth and lack of an undergraduate degree from anywhere. Dick had tried dozens and dozens of cases to a jury verdict early in his career, but the number of trials naturally tapered off considerably as his cases got bigger. Yet he was always a "trial lawyer's trial lawyer": No one ever, for a millisecond, thought that Dick was ever anything but incredibly eager to take a case to a jury verdict.

Dick taught me almost everything I know about handling expert witnesses. He taught me that in every jury trial, the jurors are desperately searching from the initial moments for the one personality in the courtroom who will dominate the trial — the person who becomes the frame of reference through which the jurors will process all the evidence — and that a successful trial lawyer needs to be that personality. He needs to find a way to make it so that even when he's sitting silent and motionless and the jurors are listening to the judge or another lawyer speak, the jurors are wondering, "I wonder what Mr. Miller's going to have to say about that?" or "That sure doesn't fit with what Mr. Miller proved through that last witness, I'm just not gonna swallow that." (The problem is, even if you understand this theory, the only way you can make it work is if you find and develop your own best gifts as a lawyer, and I could no more have imitated Dick Miller's particular gifts than I could have won an Olympic gold medal in the pole vault.)

I had the privilege of carrying Dick's briefcase as the third chair lawyer in a products liability automotive crashworthiness case in March 1982; lawyers from all over town, even judges, found an excuse to come sit in the courtroom to watch Dick win it. And yes he was tough and fierce and aggressive, but it was anything but raw aggression; Dick Miller was whip-smart, a master of both personalities and the law, a polished diamond of a lawyer. He was, without question in my mind, the single best courtroom tactician that I've ever seen, and by a healthy margin — and I've seen some very, very good ones.

John Jeffers, by contrast, had a physique more like my own, and was the product of a privileged background as the son of a successful litigation partner at Houston's Vinson & Elkins — elite boarding school, Yale College, then back home for UT-Law. In contrast to Dick Miller's career path, John had always mostly worked on big, extended cases. He'd tried, and won, and held onto through appeals, a huge antitrust case against Volkswagen — who'd been represented by his father. He'd spent something like 18 consecutive months in trial in an FTC proceeding successfully defending Tenneco's acquisition of Monroe Shock. Throughout his entire career, I doubt if he had as many as ten trials, and fewer to a jury; and completely aside from trials, I'm sure he'd handled only a small fraction of the total number of separate matters that Dick Miller had.

I had the privilege of working with John on two huge corporate take-over cases in 1981 and 1982, one of them very drawn out (American General's acquisition of NLT Corp.), and the other lightning-fast (Burlington Northern's acquisition of The El Paso Company). In each of them, John gave me responsibility vastly beyond what I'd earned, and with it the opportunity to observe, and participate at the margins of, the formulation of strategy. John was as low-key as Dick was dominating, and he had the mannerisms of an absent-minded professor. He tended to mumble. In a one-day trial, he'd probably have annoyed the heck out of both judge and jury, but over time in a longer trial — not through personality, but through sustained brilliance and preparation — he'd eventually win them over. John Jeffers taught me more than anyone else about seeing the big picture, grasping what was actually driving the players (even if they didn't know it themselves), finding ways to use my clients' intrinsic advantages to their best potential and minimize their exposure from their weaknesses.

As it happened, Dick Miller and John Jeffers squared off in what's still one of the most famous disputes in American history, Pennzoil Co. v. Texaco Inc. Dick, who'd left Baker Botts to open a litigation boutique, was Texaco's lead counsel in the eventual Houston jury trial. John was Pennzoil's master strategist behind the scenes throughout. Along with his own partner Irv Terrell and the talented and flamboyant (and decidedly un-Bottsian) Joe Jamail, John was among the three lawyers to take significant roles in front of the jury for Pennzoil during trial.

But as much as I wanted to, I didn't work directly with John on the case. I still vividly recall the Sunday morning in January 1984, when Jeffers, calling from New York, had gotten me out of the shower. "Dyer," he said, "I'm up here with [a Baker Botts corporate partner] riding herd on this Pennzoil-Getty deal, and the whole thing's beginning to blow up. Looks like Texaco's trying to steal the deal. Can you get on a plane?"

"Oh, man! Wow! I'm really sorry, John," I said, "and this just kills me to have to say. But I'm picking a jury in federal court here in Houston tomorrow morning on one of my first-chair cases, and there's no way I could get out of it or hand it off." You see, while I'd been pleased to get the chance to work on some huge, mega-cases (mostly mergers and acquisitions litigation), I'd also cultivated my own docket of still significant but much smaller cases that I could use to earn the first-chair jury trial experience I also wanted. And from January 1984 through the end of 1986, I tried nine of those smaller cases first-chair, most of them to juries, plus another couple of second-chair trials, and I also worked on four other M&A matters. But the price I paid for getting that early first-chair experience was that I never could free up a big enough chunk of time to join the Pennzoil team. I was reduced to watching it from a privileged position on the margins, with insider access to one side. I knew all the lawyers involved in the trial, and I spent every hour that I could steal from my own practice watching it.

Pennzoil, of course, won the jury trial, and the subsequent appeals. The American business and legal communities were stunned, and most of them thought it was a huge aberration. But it wasn't. In the big picture, Pennzoil won because of John Jeffers' superior strategy throughout — not only in the jury trial portion of the dispute and the direct appeals from it, but also including proceedings in the Delaware chancery and state supreme courts, the federal trial and appellate courts of New York, an injunction case in Oklahoma, two trips to the U.S. Supreme Court, and ultimately the bankruptcy courts. Miller was the superior tactician — asked immediately after the jury trial who they'd hire themselves if they were in trouble and needed the most effective lawyer they could find, almost all the jurors named Miller. But strategy ultimately beat tactics to the tune of $3 billion of Texaco's cash that became Pennzoil's — and while of course the underlying facts of the case were responsible for its magnitude, the lawyering played a significant part too.

Regular readers will know that I use the vulgar term "candy-assed litigator" to show disdain and the term "trial lawyer" to show respect.  (The latter does not mean "plaintiffs' personal injury lawyers," who may or may not be "real trial lawyers.") Superficially, John Jeffers might have looked to some like a candy-assed litigator — but every lawyer who made that mistake ended up getting his rear end chewed up and handed back to him. I am here to tell you, friends and neighbors, that both John Jeffers and Dick Miller were genuine, high-test, undiluted, and very potent trial lawyers. More than any two other lawyers I've ever met, Dick Miller taught me tactics, and John Jeffers taught me strategy. You've got to know both to be a genuinely successful and well-rounded trial lawyer, and neither Miller nor Jeffers was a slacker at the other's specialty. Having had the chance to learn from them both was a unique opportunity — I was in exactly the right place at the right time — for which I'll always be grateful to both men.


That's a long anecdote, and you may be wondering why the heck I chose this post to tell it in.

You may have noticed, gentle readers, that with general consistency, I've referred to Ms. Miers in my posts and comments as a "courtroom lawyer," rather than as a "trial lawyer." That's been for two reasons. First, I didn't want people to assume (wrongly) that any significant portion of Ms. Miers' practice has involved representing plaintiffs in personal injury cases, and that's what the press and politicians typically mean when they talk about "the trial lawyers" or "the trial lawyers' bar." But the second reason is that I don't have enough data to say with confidence whether Ms. Miers is, or isn't, a real "trial lawyer" in the sense that I use that term. And you can't tell one way or the other from the questionnaire to which JPod referred. That was the point of my telling the story of John Jeffers. For me to use that term to describe her, I'd have to either have worked with her first-hand under pressure for a while, or else have learned a whole lot more about the cases she's handled, plus spoken with others whose judgments I trust and who'd been involved on a first-hand basis in at least some of those cases.

Everything else being equal, I'd slightly rather have a real trial lawyer on the Court than a mere litigator. I hope she is one, and there are some promising signs; I may or may not be able to draw a confident conclusion about that with more information. But while I think the difference between real trial lawyers and mere litigators is (or ought to be) very important to clients, those differences are probably not very important for purposes of being a Supreme Court Justice. Supreme Court Justices don't try cases, so whether one of them has the secret guts to go to trial, plus the ability to project that to one's opponents, just isn't very relevant on the Supreme Court.

Thus, I can tell you this with great confidence, even without knowing whether Ms. Miers would or would not meet my highly subjective standards for being a "real trial lawyer": JPod's assumption — "If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever" — is badly wrong. His insistence that settled cases are "beside the point" means that he's never understood how litigation actually works, and that's why all those "billions" of lawyers are emailing him! It's the sort of thing that only someone very inexperienced in the American civil justice system could say. I'm delighted for JPod's sake that he apparently is still a virgin, apparently unacquainted with even the basics of civil litigation; may he never be sued or need to sue, may he ever remain such. But there's just no such thing as pure "judicial legal skills" that only are used during trials on the merits. Let's leave aside for now deal lawyers, because they help clients avoid courtrooms by anticipating disputes and resolving them or allocating their risks in advance. The only way that lawyers who handle litigation can "help people and corporations avoid courtrooms" is by being fully prepared to go into courtrooms, and projecting to the other side their readiness and capability to do so.

That includes drafting pleadings and motions and briefs. That includes eliciting testimony through oral depositions and working with expert witnesses. That includes presentation of one's case to opposing counsel and typically now also to a mediator as part of settlement discussions. If the lawyer's any damned good at all, everything that is done in all of the pre-suit and pre-trial phases of a litigation matter is done with an eye toward how it would affect the ultimate trial. JPod denies that "a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts." I'm sorry, but that's completely wrong; cases don't settle because one side suddenly persuades the other who's right and who's wrong, but because one side causes the other to reevaluate its risk-benefit equation for going to trial. It's the anticipation of results of the sort that play out in that tiny percentage of cases that do go to trial which causes and permits all the rest of the cases (the huge majority) to settle.

In the end, I'm no more troubled that Harriet Miers hasn't tried dozens of cases than I was that John Roberts hadn't tried any, nor even taken a deposition. I've tried dozens, and taken hundreds of depositions, but my record reflects trade-offs, as do each of theirs. Overall they're both well qualified for, and will bring something useful to, the Supreme Court. I'm not and wouldn't. And oddly enough, I doubt that either of my two heroes that I've written about in this post would have been particularly well-suited to the Court either; some people are such good trial lawyers, and so unrelentingly competitive, that they actually would not make very good judges at all.

Posted by Beldar at 08:20 PM in Law (2006 & earlier), Trial Lawyer War Stories | Permalink


Other weblog posts, if any, whose authors have linked to Miers' practice experience as measured by volume of trials and sent a trackback ping are listed here:

» Senate Democrats Meet Nominee Miers from Unpartisan.com Political News and Blog Aggregator

Tracked on Oct 19, 2005 10:01:30 PM

» Blogworthies LXXIII from The Blog from the Core

Tracked on Oct 22, 2005 11:21:51 AM


(1) PLM made the following comment | Oct 19, 2005 9:08:42 PM | Permalink

As a lawyer for 42 years and a Civil Procedure teacher for 34 years, I couldn't agree with you more. Whether or not her cases "went to trial" her experience in the kinds of issues that confront lawyers everyday (and are largely unknown to most members of the Supreme Court) is extremely important, because what the Supreme Court decides has enormous effects on the practice of law, and most of them are the "unintended consequences" caused because the Court doesn't understand what problems its Olympian pronouncements can cause.

But, on the Texaco-Pennzoil litigation, all I will say is that there is another side to what the merits of the case were. But that is irrelevant to the issue at hand, and the fact that a "non-trial" lawyer was a successful mastermind of the winning side is relevant.

(2) George Turner made the following comment | Oct 19, 2005 10:14:23 PM | Permalink

For the non-lawyers out there, you could liken this point to a military one: that decades spent as a top-flight cold-war military officer, using able generalship to constantly prepare to win any potential conflicts (despite only commanding in a few hot conflicts), doesn't mean you're unqualified to be on the Joint Chiefs of Staff. Skillfully marshalling your arguments and staking out your positions in preparation for conflict, so that the opponent realizes their inevitable defeat prior to a trial, rates pretty highly in my book. I'll take a brilliant tactician like Odysseus over someone like John Edwards, whose courtroom victories involved channeling the voices of dead babies.

(3) stevesturm made the following comment | Oct 19, 2005 10:27:51 PM | Permalink


So it turns out that Miers is not a fellow 'trial attorney'. Lacking a better term, I'll use your term 'courtroom attorney' to describe her: a litigator who settles most of their cases but isn't afraid to go into court when necessary and does a good job there.

As you know, I'm not an attorney; I'm merely a client. As such, I've dealt with more than a few of these 'courtroom attorneys', some of whom have had some pretty impressive clients, and I recognize and truly appreciate the skills they bring to the table.

That said, I can't think of a single one that belongs on the Supreme Court. What I look for in a courtroom attorney is simply not what I look for in a Supreme Court Justice. I would no more want a courtroom attorney on the Supreme Court than I would want John Roberts as my courtroom attorney.

And while I have never utilized Ms. Miers' talents, and thus am not in a position to offer a first person analysis of her talents, I just don't see her as the exception.

And I know this means you're off my short list for the Court. Sorry.

(4) Ironman made the following comment | Oct 19, 2005 10:32:54 PM | Permalink

Congratulations, Astros

(5) Beldar made the following comment | Oct 19, 2005 11:15:02 PM | Permalink

See, Steve, I don't even use the word "attorney" much. I just say "lawyer."

I appreciate your point. I don't put your position in the "faulty information" category, but rather in the "insufficient imagination" one. And you also have a terrific better angel.

Mr. Turner, I was searching for a military analogy as I wrote this post, but couldn't quite produce one. Thanks for yours, which I happily adopt and incorporate by reference.

PLM, you're absolutely right that there are competing views about the merits of that case or the lack thereof. I was at Texaco's bankruptcy counsel, Weil Gotshal, when the case settled, and obviously the lawyers there tended to identify with Texaco as much as the Baker Botts lawyers did with Pennzoil. I don't claim objectivity; but I watched a lot of that trial, including some of the key cross-examinations (Lipton, Winokur, Liman, Liedtke). Recall, too, that at the conclusion of Jeffers' argument on the preliminary injunction to block Texaco's deal in Delaware Chancery Court, the Chancellor -- no wild-eyed Texan, he -- found that Pennzoil had shown a probability of success on the merits, but had an adequate remedy at law, i.e., a suit for money damages -- at which point (per Jeffers' strategy) Pennzoil nonsuited in Delaware and filed in Harris County. (Of Jeffers' argument, the Chancellor said something very close to "To say that that was a magnificent oral argument, Mr. Jeffers, would be weak and inadequate praise indeed." Just amazing.)

(6) Crank made the following comment | Oct 19, 2005 11:39:15 PM | Permalink

A fine post, Beldar. But we are no closer to having the ability to evaluate whether Harriet Miers has the skills she would need on the Supreme Court. As you yourself admit, not every litigator - not even every good trial lawyer - is well-suited to be a judge.

(7) jack made the following comment | Oct 19, 2005 11:50:49 PM | Permalink

The White house says Miss Miers practiced trial and appellate law for 30 years. She handled big cases for big clients, and litigated groundbreaking issues such as whether certification of a class is proper, an issue she litigated on behalf of Microsoft. Big stuff. Hard stuff.

Lists are now available. I reviewed all of the Texas state court cases. All four. Yes, four. Thirty years. Four big hard cases. They are:

1. Microsoft. 914 S.W.2d 602 (Tex.App.-Texarkana 1995) Said to be a real trailblazer case. Not quite. It was an appeal of an interlocutory order that certified a class of plaintiffs suing Microsoft. Texas allows this appeal right away, before trial and before most pretrial activity. Miers represented Microsoft. Microsoft lost (a class was certified) at the trial court, and appealed. The issues were routine class certification issues. (Were the requirements of the rule met? Was there Constitutional Due Process? Was there a Full Faith and Credit violation?) The court of appeals affirmed. Microsoft and Miss Miers lost again. The court of appeals wrote a fairly long opinion which was issued two weeks after submission. That is fast, and suggests that the case was easy. Generally oral argument and submission occur on the same day. There was one unanimous opinion. Miss Miers is the only lawyer listed for Locke, but Max Sandlin, Jr. also represented Microsoft. (For Appellant: Hon. Harriet E. Miers, Locke Purnell Rain Harrell, Dallas, TX. Hon. Max A. Sandlin, Jr., Sandlin & Buckner, Marshall, TX.) Later, Max Sandlin, Jr. was a Democratic member of congress. It is a small world. What will he say about Miss Miers and this hard case that they shared? Locke Liddell's PAC contributed to a campaign of Max Sandlin, as well as to an opponent of Tom Delay. Delay won. Delay pushed through redistricting. Sandlin was defeated. Delay was indicted. It is a small world.
Comments: Was it worth an appeal? Probably, even if the result was almost certain. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that some first year lawyers could handle. A routine dull case for the court of appeals. A claim that it was a big trailblazing case is foolishness. And Miss Miers lost. And her attempts to have it reheard or considered by the Texas Supreme Court failed. Microsoft dismissed by the plaintiffs without prejudice. No verdict or judgment.

(Update: Her questionaire explains: She lost at the trial court, lost at the court of appeals in which she gave the losing oral argument, sought review at the Texas Supreme Court, and while that request was pending, won at the trial court when the trial court judge decided to decertify the class. This was all about the issue of whether the class should be certified. The trial judge could decertify any time. Miers questionaire suggests that she does not understand the issues in the case or that she is spinning them by claiming interplay between state and federal class action laws. Generally the class action rules of Texas are construed the same was as the Federal rules, so Federal cases are authority for state courts. Yet she stresses the interplay. What interplay? This was just a plain vanilla state class action issue. She also claims federal constitutional issues of due process and full faith and credit were involved. Not really.

1. Due process is just a distraction from examining compliance with the rule. Generallt the process required by the rule is what is required. The court is not going to read the constitution, it is going to read the rule. But, in the court of appeals Miers also claimed a due process violation related to the class notice. The court of appeal was not impressed. It said:

As for the adequacy of notice, the trial court has made no ruling on notice. That is a decision that will be made later, and it will be subject to review. This court cannot tell if class notice violates due process because no class notice has been given.

The class certification does not violate constitutional due process or the Full Faith and Credit Clause.

2. Full faith and credit seems to be a total misunderstanding. There was a choice of law issue. Does Texas law cover all members of the class? That does not strike me as a full faith and credit issue.

My reaction to the questionnaire is off the cuff. Maybe I missed it.

Overall: The White House and Miers are spinning. This case is no great accomplishment. Most trial lawyers would not want it to be their signature accomplishment.)

2. Disney. 981 S.W.2d 25 (Tex.App. - San Antonio 1998) Disney was sued. Disney said it could not be sued in Texas. It was not a Texan, and had done nothing to give Texas jurisdiction over it. Disney filed affidavit but the trial court denied their claim. Disney appealed the denial. This was an interlocutory appeal before trial, and before much pretrial activity. The plaintiff failed to offer any proof as required to support jurisdiction. Thus, plaintiff loses. Unanimous. Easy case! Plaintiff failed to make an adequate record. It would be hard for Disney to lose this appeal. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that some first year lawyers could handle. A routine dull case for the court of appeals. ATTORNEYS FOR APPELLANT: Harriet E. Miers, Thomas A. Connop, Thomas F. Loose, Kirsten M. Castaneda, LOCKE, PURNELL, RAIN, HARRELL, P.C., Dallas, TX. Arnulfo Gonzalez, Jr., LAW OFFICES OF ARNULFO GONZALEZ, Laredo, TX. Yes, four locke attorneys, and one local lawyer. One should be plenty.

(Update: Her questionaire claims this as a case in which she litigated constitutional issues. Huh? I quote the first two sentences of the opinion:

This is an accelerated appeal froman interlocutory order denying Disney Enterprises, Inc.'s ("Disney") Rule 120a special appearance. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (a)(7) (Vernon Supp. 1998). Because we find that Disney is not amenable to suit in Texas, we reverse the trial court's order and order the cause dismissed for lack of personal jurisdiction. of Disney.

Miers was asked the number of cases she tried to verdict or judgment, not settled cases. (Question 15d.) Some, including the Republican National Committee, claimed that Miers said she tried 8 jury cases. ( In private practice she handled hundreds of cases, litigating at least eight jury trials to verdict and handling six appeals. Quoted by Erick at ConfirmThem.com)


Disney and Microsoft are among the 8. Deduct them. Now, down to 6. In Microsoft and Disney, there was no jury trial or other trial. Microsoft was dismissed by the plaintiffs without prejudice. No verdict. No judgment. Disney case thrown out of the Texas court because it was the wrong state in which to sue. (Who is in charge of getting the facts right at the White House and RNC?) Miers puffed her answer. The RNC bought the puffery. This is not helping her.


Miers does not mention McClure or Perkins in her questionaire. Why? I have no idea.


3. McClure. 560 S.W.2d 457 (Tex.App. - Beaumont 1977) Dispute arising from a foreclosure. Jury trial. The jury answers conflicted with one another. Trial judge disregarded some jury answers. Miers appeals. Reversed and remanded for new trial. Unanimous. Short opinion. Somewhat messy case. Messed up in trial court. Sent back to do over. Nothing accomplished so far. Try Again. Joe H. Staley, Jr., Harriet E. Miers, Dallas, for appellants. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that some first year lawyers could handle. A mundane case for the court of appeals.

4. Perkins. 545 S.W.2d 494 (Tex.App. - San Antonio 1976) Does a lien relate back? Contractor lien validity and priority. Vague land description. Is it too vague? Jury trial. Multiple parties. I would need to know more to know the players, and how it all works out. Miss Miers is the Dallas lawyer, the third firm listed for the appellee. Two San Antonio firms with lawyers Pepos Dounson and Luther Soules also represented her client. One may have handled the appeal. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that a few first year lawyers could handle. A mundane case for the court of appeals.

Overall. Four cases in 30 years. Routine cases. Miss Miers was never the only lawyer for her client. All opinions by the intermediate court of appeals. The Supreme Court did not take any of them. None in Dallas or Ft. Worth. Two in San Antonio. One in Texarkana. One in Beaumont. At least a few hundred Texas lawyers had more cases during those years. Maybe a few thousand lawyers did this much or more.

The only thing this record shows is that her Texas appellate court experience was minimal and mundane.

(8) pat made the following comment | Oct 19, 2005 11:54:24 PM | Permalink

The real Miers problems are starting to surface.

She is hiding stuff.

Is she really inept, or is it a strategy to divert people from the big stuff?

Will the hearings consist of the theme: not a crook, merely inept?

Senate Judiciary Committee asks Miers for more details
Chicago Tribune

Staffers . . . were struck by the cases she listed because the questionnaire had asked her to include all litigation in which she had participated. Senior Republican aides on the Judiciary Committee did a quick search on the Internet and found a page and a half of additional cases.

"In a good hour's work, they found a couple pages of stuff that had not been listed - and it wasn't like an in-depth investigative search. It was just your normal, `Hey, let's see what we can find,'" said one senior Republican committee aide.

The Miers answers listed 8 cases. We had already reported our thoughts on cases that were not listed. Weird, huh? The Senate committee had the same reaction.

Why did Miers leave out cases?

Was she hiding them?

Not possible, you say?

She clearly was hiding things like the civil suits against Locke that were settled for millions, which had been reported in newspapers, and formed part of the basis for a Texas CLE course on The Texas Chicken Feed Tort of Negligent Misrepresentation that has been available on the internet for years.

She was on an advisory board for Martindale Hubbell Lexis/Nexis.

Did she believe no one would ask about her missing cases or The Texas Chicken Feed Tort of Negligent Misrepresentation?

Perhaps she is an optimist.

She was thought to be:

a very good trial lawyer

very ethical

a detail person

picky about punctuation, grammer, writing, form


In two weeks, she has convinced the Senate committee that:

she is not truthful when they talk to her

the chairman now wants a recording of conversationsSpecter, a former prosecutor, said Wednesday that in his years of meeting with Supreme Court nominees, he'd "never walked out of a room and had a disagreement as to what was said."
"The sooner we get into a hearing room where there's a stenographer and public record, the better off the process is," Specter said.

she is not a detail person
she cannot write well
she is not good with punctuation or grammer
she misunderstands law
she lacks substantive background in the stuff the Supreme Court deals with
she is not complete, truthful, or respectful when asked to file complete answers to questions

"On the balance of her answers, they're incomplete," said Specter, noting she had only provided a "skimpy little group" of cases she had handled.

Wednesday's letter to Miers went far beyond the routine follow-up questions often put to nominees by individual senators. It asked for a wholesale re-examination of the questionnaire, noting that committee staffers already had identified additional cases she had neglected to include.

Leahy said reactions to the questionnaire by senators on the Judiciary Committee ranged from "insulting" to "incomplete."

"Certainly it was inadequate and did not give us enough to prepare for a hearing," Leahy said.

Specter said he agreed.

The things she did list were seriously exagerated and puffed.

Miers can now try to convince the Senate and the public that she is honest competent, and not responsible for the misrepresentation that her firm paid multi-millions to settle; the tax shelter work for which the firm charged $50,000 per letter and with respect to which investigations are ongoing; the fees paid to her firm by a lottery contractor when she was head of the lottery commission, or the trauma caused to hundreds of small town Texans in the Heart of Texas who lost thier savings to Ponzi scheme promoters who ran the money through the IOLTA trust account of the firm she ran.

She can tell them that she is great because she is the First Woman President of the State Bar of Texas who was elected after being suspended for nonpayment of dues, and who practiced law with a suspended license, while not knowing that it was suspended. She is a trailblazer.

(9) Rob made the following comment | Oct 20, 2005 12:46:05 AM | Permalink


you make the following assertion about Ms Miers:

Miers "practiced law with a suspended license"

Are you saying Ms Miers engaged in the practice of law w/o a license?

If yes, when did she practice law w/o a license?

What position was Ms Miers in when she "practiced law w/o a license?"

Are you claming Ms Miers engaged in the unauthorized practice of law?

If yes, what jurisdiction did she violate the rules of unauthorized practice in?

(10) Terry Jay made the following comment | Oct 20, 2005 1:00:54 AM | Permalink

Rebuttable prsumption: All three branches of government have a responsibility to interpret the law and the Constitution.

Implication: If that assumption is even remotely true, is it reasonable and responsible to expect all candidates for any office to be Ivy League graduates with extensive writings on the obscure and arcane?

There is a case to be made that credentialism has contributed mightly to the Court's decisions, and to the dissatisfaction of the right.

Is there a place on the Court for someone who can look at the meaning of "Congress shall make no law.." and conclude that it means that Congress shall make no law?

There may be merit to asserting that other potential candidates have a more comprehensive record supporting and defending sensitive conservative positions, but there is no merit in denigrating the chosen candidate's education or experience.

(11) pat made the following comment | Oct 20, 2005 1:05:23 AM | Permalink

[Commenter "pat": I've deleted this comment in its entirety. I'm all in favor of reasoned debate. Some of the factual allegations you've made, however, I know to be false and, indeed, defamatory. The odds that Ms. Miers will ever sue you are slim. The odds that I will continue to allow you to use bandwidth that I pay for to spread defamatory statements are none. Go away, please. — Beldar.]

(12) Patterico made the following comment | Oct 20, 2005 1:06:37 AM | Permalink

Entertaining stuff. I think JPod is way off base. Keeping clients out of court at a low price is critical.

I worked for a couple of the more brilliant lawyers I have ever met, and one of them was far less experienced at trial than I am. But she was a superior litigator.

Then again, she was (and still is) a top-notch writer as well. And, I regret to say, Ms. Miers is not.

(13) Rob made the following comment | Oct 20, 2005 1:40:44 AM | Permalink

The scandal is finally revealed: 16 yrs ago Ms Miers paid her bar dues late and was "suspended" from the State of Texas bar for 3 weeks

I am sure the the Committee will be ready to put into the record, the Texas bar's subsequent final motion to disbar Ms Miers due to her unauthorized practice of law in the State of Texas during this period

(14) Rob made the following comment | Oct 20, 2005 1:57:39 AM | Permalink

Senator Specter ought to just set aside any pretense of being fair and just turn over the case to his favorite attack dogs at NARAL and Planned Parenthood

Specter never really recovered from being the editor of the Yale Law Review, so we can excuse away his elitist attitude

(15) Rob made the following comment | Oct 20, 2005 2:09:46 AM | Permalink

Ms Miers DC "suspension" due to failing to pay bar dues is irrelevant, as her Texas Bar membership by itself (or bar membership in any jurisdiction for that matter) would be sufficient for her to engage in the "practice law" in her role as a federal employee

DC bar "suspension" due to alleged late payment is about as significant as a parking ticket, which as stated above is irrelevant to Ms Miers anyways - because she didn't even need the DC license

(16) Beldar made the following comment | Oct 20, 2005 2:13:22 AM | Permalink

Jack, I'm going to give one specific example, just one, of one of your statements in your probing analysis of Ms. Miers' state-court appellate record that shows that you have no idea what in the hell you're talking about:

(Update: Her questionaire claims this as a case in which she litigated constitutional issues. Huh? I quote the first two sentences of the opinion:

This is an accelerated appeal froman interlocutory order denying Disney Enterprises, Inc.'s ("Disney") Rule 120a special appearance. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (a)(7) (Vernon Supp. 1998). Because we find that Disney is not amenable to suit in Texas, we reverse the trial court's order and order the cause dismissed for lack of personal jurisdiction. of Disney.

Personal jurisdiction, however, does indeed depend on aspects of both state procedural law and, ultimately, federal constitutional law — specifically whether an assertion by a state's courts of personal jurisdiction over an out-of-state defendant offends traditional notions of due process.

Ms. Miers understands this. Any law student who's taken con law understands this. If you had read and understood the Texas court of appeals' opinion thoroughly, you would understand it. If you'd looked at the West Keynotes that list the "Constitutional Law" holdings in the case, you'd have had a really good clue.

I don't have time to go through your post, line by line, to demonstrate why you've made more ridiculous assertions than arguably true ones. But it's very clear to me that nothing I write is going to influence you, and nothing you write here is likely to be correct. I also notice that your IP address has posted comments here under seven different names, almost all of them equally unbalanced.

Let's part company as friends, shall we? Or if not exactly as friends, let's just part company anyway.

(17) George Turner made the following comment | Oct 20, 2005 2:36:06 AM | Permalink

The brouhaha over her expired law license is humorous, and shows the extent some will reach.

A few years ago Kentucky passed a law that mandated a one-year automatic suspension for anyone caught driving without a valid license, to crack down on the 14 and 15 year-olds cruising around at the wheel.

My coworker's 40ish wife was one of the first who got cited under the new law, having been tardy with her renewal, and the judge, prosecuter, defense, and police officer all conspired to knock it down to something like "driving while not in possession of a license", as if she'd accidentally left it at the Gas-and-Go, while a panicked warning was sent throughout the state to NOT enforce the law as written.

If these are the hurdles to get on the Supreme Court, nobody is qualified for the job, even Moses the lawgiver, who after all climbed the mountain after hours, and didn't have a valid and current backcountry campfire permit for that bush.

(18) Charles E. Chase made the following comment | Oct 20, 2005 8:30:19 AM | Permalink

In reading some of the comments above, I really have to wonder whether any of the commentors ever tried a case in court, either jury or court trial. Well, I did, trying 45 jury trials and 100 court trials during the 38 years that I practiced law before retirement.

What is lost in the discussion concerning her few trials tried, whatever the number is the fact that for every case, the lawyer must engage in extensive preparation for a case likely to go to trial. Despite what the public thinks, trials are won by that pretrial preparation, and not by wonderful oratory or crushing cross-examination.

If you wish to play a numbers game concerning Meirs court room time, then you should include all of those cases which she handled which were settled either on the court house steps or in the judge's chambers after the case has been called. In either case, the lawyer still had to all of the extensive pretrial preparation. This includes not only discovery, motion practice, but trial motion practice, witness preparation, cross-examination practice, trial brief, jury instructions, etc.

Let's get real here folks! This woman has one heck of a background as a lawyer at a very large law firm, ergo, big clients and big issues. My experience has caused me to form the opinion that the persons who make the best judges are those who have "real world" experience, and who are taking a massive pay cut when they are elevated to the bench. Why not a supreme court judge who does not have the "ivory tower" mentality of many of our federal judges?

(19) nk made the following comment | Oct 20, 2005 9:41:28 AM | Permalink

It has never happened to me, by the grace of God, but I personally know two very capable attorneys (one a one-time judicial candidate) who stopped being "in good standing" by not paying their registration fees on time. No big deal. The minute you walk over your check you get a letter saying you are again in good standing. The cases I know where the attorney was subject to discipline involved several years of having been off the Roll for non-payment of the registration fee.

Now this is speculating, but don't the bigger firms pay the bar dues/registration fee for their attorneys and also have someone responsible for renewing everyone's license when the time comes around? To Ms. Meiers's credit she is not blaming her secretary or office manager for the oversight.

As for her litigation experience, I will go even further than our host. We have had more than a few law professors appointed to the Court of Appeals and to the Supreme Court without even a tenth of her court time.
I have great respect for the skill and talent required to try a case beore a jury but it is not the only legal expertise or even, necessarily, the cutting edge of the law.

There is more than enough fair criticism of this appointment -- we should not stoop to unfair criticism.

(20) Jimbeaux made the following comment | Oct 20, 2005 10:05:20 AM | Permalink

Okay, how about this:

"In describing one matter on the Dallas City Council, Miers referred to 'the proportional representation requirement of the Equal Protection Clause' as it relates to the Voting Rights Act."

Either she's the most brilliant constitutional scholar since Alfred E. Newman, or she gives new meaning to the term, "strict constructionist".

(21) Rob made the following comment | Oct 20, 2005 10:10:13 AM | Permalink

The DC bar annual renewal normally requires the actual member to sign and date, meaning mere payment by a 3rd party alone is insufficient by itself, and Ms Miers who obviously spends a good deal of time travelling the world via Air Force One might in practical terms often be unreachable for a signature or more simply missed her "3rd notice" POSTCARD. I think a Special Prosecutor might need to look into this matter further.

No doubt Ms Dianne Feinstein (a non-lawyer JUDICIARY COMMITTEE member) and other members will soon be lecturing Ms Miers on her alleged serious acts of misconduct

Note Mrs Feinstein voted against John Robert's confirmation. All need to review the transcript of her (borderline juvenile) exchanges with Mr Roberts in reference to her claim that Roberts was somehow in favor of oppressing women and keeping them away from professions such as law

(22) Rob made the following comment | Oct 20, 2005 10:29:29 AM | Permalink

Real Worlders

vs Peanut Gallery Pundit Elitists

It could actually be as good as Janice Rogers Brown telling Teddy Kennedy to drive off a bridge, and finally telling Chuck Schummer to "get rid of the attitude"

(23) Drugstore Cowgirl made the following comment | Oct 20, 2005 11:03:39 AM | Permalink

Even after "billions" of lawyers have emailed Mr. Podorotz with factual "lawyer" information he, in his arrogance, ignores this and sublimely continues to expose his ignorance to one and all. He is that set against Ms. Miers. Breathtaking.

(24) salaryman made the following comment | Oct 20, 2005 11:30:27 AM | Permalink

I just don’t get the vehemence of Beldar’s support for Miers.

A couple of her purported “qualifications” seem to me at best of minimal relevance to her ability to be a good judge. Being president of a state bar, while a nice resume-builder, doesn’t really say much about one’s excellence as a lawyer. Most of us who have spent any time active in professional organizations recognize that the people who rise to positions of authority aren’t necessarily the best lawyers (or accountants, or dentists) in the organization, much less the country. Instead, they're usually the ones who devote the most time to the organization’s activities (as Woody Allen observed, 95% of life is just showing up). Thus, while her presidency is certainly not a black mark against her, and evidences admirable energy and public-spiritedness, it doesn’t speak much, or at all, to her analytical or rhetorical skills or judicial philosophy.

She was managing partner of a good sized metropolitan law firm. What does this mean? Again, not much. Most lawyers who have practiced in medium to large firms recognize that being elected managing partner doesn’t necessarily depend on being the best lawyer qua lawyer in the firm. The managing partner may, of course, in fact be the attorney most admired for legal as well as managerial skills. But they also may be the one with the greatest interest in, or least aversion to, administrative tasks. Or the person who wants the job that is least offensive to the other partners. I don’t mean this to imply that managing partners are necessarily less able than their fellows. I started out at a major East Coast firm whose managing partners were universally well-respected both as lawyers and as managers. On the other hand, a lot of excellent lawyers (perhaps especially litigators) would rather practice law than manage a business, so status as managing partner doesn’t establish a person as the best (or even one of the best) lawyer in his/her firm.

Which leads me to my major problem with the Miers nomination, or more specifically with Beldar’s view of what qualifies a person for the court. Let me start with an anecdote: a few years ago I had the opportunity to work with Locke, Liddell (although not Harriet Miers) on a case. I was extremely impressed with their litigators, have since told friends and colleagues so, and would recommend the firm to any person in need of Texas counsel for sophisticated legal work. And here’s the rub: from what I can tell of Miers, I seriously doubt that she was any better a lawyer than those of her partners with whom I worked. I would certainly be surprised, having read her Senate questionnaire, to learn that she was considered to be head and shoulders above them, and I would be utterly unsurprised (and I’m guessing you would be, too, Beldar) to hear that there were a few other litigators at Locke, Liddell who were considered to be better lawyers than she.

So let’s say there are five litigators at Locke, Liddell who are as good as or better lawyers than Harriet Miers – about as smart or smarter, having about the same or better trial/appellate experience, maybe not having the ABA or managing partner qualifications she does (but you know what I think of them), equally good (or, from what I’ve seen, hopefully better) writers. How about at Vinson & Elkins? Do they have anybody there as good as Harriet Miers? Isn’t it likely they have a few, and perhaps more than Locke, Liddell? How about Baker & Botts? Let’s throw in Akin, Gump and Fulbright & Jaworski. Don’t you think there are a good number of attorneys there whose qualifications equal or exceed Ms. Miers’? And let’s not forget plaintiffs’ attorneys. Suppose someday President John Edwards nominates Fred Baron to the Supreme Court: I have no idea where Fred went to school or if he made law review, but he’s certainly managed a firm, tried cases, probably been high mucky-muck of the ATLA at some point and served as finance manager to a presidential campaign. Aside from any substantive reasons why you wouldn’t want Fred on the Court, isn’t his resume good enough? And if you don’t like him, heck, you’re from Texas – you can’t be telling me there aren’t at least a couple of plaintiffs’ lawyers from Texas with qualifications as good as Harriet Miers', can you?

Now, I haven’t even left your home state of Texas, and I haven’t even touched on excellent lawyers at Texas firms I may not have heard of (firms like Locke Liddell, which I hadn’t heard of until 5 years ago) and I haven’t even addressed how many law professors, state and federal judges and others in Texas are at least as qualified as Harriet Miers. Add in candidates from the other 49 states and we’ve got to be talking about literally thousands of attorneys who, in your view, would be fully qualified to assume seats formerly held by Rehnquist, Harlan, and Marshall. To be fair, it’s not as though you’re saying you couldn’t spit in a Texas courtroom without hitting the next Felix Frankfurter, but your logic pretty much compels the conclusion that one could walk into any major Texas law firm and walk out with at least one or two Supreme Court justices in tow.

I have one question: ARE YOU NUTS?!?!?

Your arguments strike me as a tragicomic inversion of some of the pro-preference side’s arguments on affirmative action – specifically the argument that a student with a 3.0 GPA and 75th percentile on the LSAT is (provided their skin is the correct hue) perfectly qualified for admission to, say, Harvard or Boalt. (Indeed, they’re even more qualified than the poor schmuck with a 3.5 GPA and 95th percentile LSAT’s with the wrong skin color.) I’d like to think that membership on the USSct ought to be a good bit more selective than even membership in Yale law’s entering class, given that there are only 9 slots even potentially available and, unlike law schools, they don’t trot a new batch in every year. Yet if I’m reading you correctly, there must be thousands and thousands of qualified candidates, right?

Hey, I have no problem with non-judges, or non-academics, being on the court. If Bush had nominated Ted Olson, I wouldn’t have questioned his qualifications. If President Hillary Clinton nominates David Boies, there shouldn't be many saying he doesn’t have the smarts or experience for the job. I have nothing against White House counsel either: I think Clark Clifford, Lloyd Cutler and Abner Mikva were all WHC and their nominations justifiably wouldn’t have raised a single eyebrow on the “qualifications” front. But this woman, while certainly accomplished, isn’t even close to being in their class.

And I haven’t even touched on what is either (1) her inability to consistently write coherently; or (2) her disinclination to proofread, as evidenced by her answers to the Senate questionnaire. Any job applicant who sent me what is in effect an application containing the successive sentences “An example, of this distinction can be seen in a vote of the council to ban flag burning. The Council was free to state its policy position, we were against flag burning” would be unlikely to get a call-back interview, much less the job. Yeah, I know everyone makes mistakes and typos, but I doubt your blog has, in its entire history, contained two successive sentences containing such bone-jarring grammatical errors, and it’s only a BLOG, for Christ’s sake, not a submission in support of your candidacy for the US Supreme Court! And if you can find some examples of her other written work that are stunningly eloquent instead of merely competent, be sure to post links.

(25) John Lederer made the following comment | Oct 20, 2005 1:12:37 PM | Permalink

For almost two decades I was on my law firm's hiring committee. It was always easy to separate the resumes into the "qualified" and "not qaulified" piles. Then it got hard.

Initially I engaged in fine distinctions among the usual litany: "how were his grades compared to others? Writing sample?Interview? Was applicant on Law Review?"

As I grew older and could better appreciate myt early choices who became my partners I was less and less enamored with distinctions of a 3.85 GPA compared to a 3.75. Instead I found better indicia by looking for the distinctive --sings in Gilbert and Sullivan operas, had to stay out of a law school a semester because his two man summer business of painting barns understimated a job and lost its shirt (but did the job), programs open source code, took a blackmsithing course, is a pilot, took care of his brother when his parents died.

Harriet Miers resume has a suggestion that she is something unusual. I like that when her Dad died she had to take a job and beg a scholarship to stay in school, that she plinked with a .45, that she was elected managing partner, that she cares for a mentally debilitated mother, that everybody seems to find her resolute, that the people on the other side like her.

I don't know enough about her to say that she ought be a Justice, but I think I see enough to suggest that she is qualified and we ought wait and take a look at her. This is not a "typical" lawyer. let's wait and see.

(26) Rob made the following comment | Oct 20, 2005 1:50:40 PM | Permalink

I think Ann Coulter is "nuts"

(27) antimedia made the following comment | Oct 20, 2005 3:12:22 PM | Permalink

Hey, salaryman, here's something for you to think about. I'm not a lawyer. I never even finished my bachelors degree! (I have a brother who's a lawyer. Does that count???)

Yet I'm smart enough to figure out that Griswold was a STUPID decision based purely upon a lawyer's bias and NOT based upon the Constitution. Right to privacy?. Emanations? Penumbras? I could make better excuses than that for ignoring the Constitution! And I'm not smug enough to think I can hide my biases with multisyllabic obfuscations.

We NEED people on the court who can recognize that! Because we sure have had a lot of "brilliant" people on the court that CAN'T think clearly. Kennedy, for example, is a witless bozo. Intelligent? Yes! Writes well? Indeed! Can't see the Constitution with a magnifying glass. Too busy sniffing up Europe's butt.

Hell, Noam Chomsky is "the greatest intellectual in the world", and he can't think his way out of a paper bag. He's a blooming idiot, as anyone with an IQ of 80 can readily see. All brains. No common sense. Too "smart" to even see his own blantant biases. (Or maybe too cynical to realize everyone else CAN?)

Mind you, I'm not saying that Harriet Miers is stupid or even average. I think she's head and shoulders above people who only see one thing as qualifying a person for the court - intelligence.

I'll bet I could make better rulings on the Constitution than half the lawyers in this country, because they're too intellectual for their own good. I'll guarantee you one thing. I wouldn't write my opinions in language that no one can understand, filled with lofty language that means nothing.

In fact, I could write a one sentence opinion on Roe v. Wade - The Constitution is moot on this issue. Cert denied.

(28) salaryman made the following comment | Oct 20, 2005 5:24:12 PM | Permalink

OK, who stole Antimedia's chill pills?

Look, I can't detect penumbras formed by emanations any more than the next guy can (well, I could back in the early 70s -- there were these mushrooms, you see, and . . .). My point is simply this: I've seen no indication that Harriet Miers is anything more than an average to very good big firm litigator. Let me hasten to add: that is "average to very good" at a very high level, a level the overwhelming majority of lawyers (most definitely including me) haven't achieved. But when you're playing in the big leagues, you should expect to be evaluated under big league standards.

For example, Rondell White of the Detroit Tigers (DH/LF) is an average to very good major league hitter (.289 lifetime) albeit a player with serious deficiencies in the field. Nonetheless, he hit .313 this year, certainly nothing to be ashamed of -- in fact hitting .300 in the majors is something to be quite proud of. It's almost certainly better than anyone reading this blog has ever hit in the majors, and better than the overwhelming majority of active baseball players (most of whom never reach the majors) could do. By almost any standard, Rondell White is an amazingly proficient baseball player, undoubtedly qualified to play in the major leagues. Nonetheless, anyone who thinks he is qualified to be chosen as this year's AL All-League designated hitter when the competition includes the likes of David Ortiz, Travis Hafner and Jason Giambi either (a) needs to have their head examined, or (b) is named Mrs. Rondell White.

Antimedia, your argument only makes much sense if you could be sure that Harriet Miers is the only candidate out there who would interpret the Constitution correctly (i.e. like you would). Frankly, I'm not sure that's the case, both because I don't feel certain about how Miers would vote on Griswold, Roe, etc., and because I suspect that McConnell and Luttig, for example, might be more to your liking than you may think.

Bottom line, though, is that I believe a president is entitled to confirmation of his/her nominee, assuming that person is qualified. I'm not sure Miers is. Put another way, she reminds me a lot more of Rondell White than she does of David Ortiz.

(29) David Walser made the following comment | Oct 20, 2005 5:44:39 PM | Permalink

Salaryman - I cannot answer for Beldar, but my own passion in the Miers issue is NOT out of support for her nomination but out of a sense of offense at the unfairness of the criticisms leveled against her. That is, I do not know enough about Miers to know whether I would support her nomination. I do know that I find the notion that someone must have gone to the right school, written for the right law review, and have traveled in the right circles to be considered a "qualified" candidate to be offensive. I find elitist the notion that the critics of the nomination are somehow better situated than the President to know who is qualified and who is not. The subsequent criticisms have done little to improve my reaction. I understand being disappointed that someone you like and admire did not get nominated. I just do not understand feeling the President personally betrayed his supporters by selecting someone who is "clearly" unqualified. Perhaps my view of what it takes to serve on the court is wrong, but I think that there are several -- hundreds if not thousands -- of men and women who could ably serve on the court. Most of these people are people you and I have never had reason to know. Demanding "proof" that a particular nominee is the "best" candidate available is not just unseemly, it is demanding the impossible. That's why I've been so outraged. Miers critics have not had the decency to allow her to present herself and her qualifications before vilifying her and the President.

(30) Ironman made the following comment | Oct 20, 2005 6:13:12 PM | Permalink

Rondell White hit .313 this year?, jeez get Steinbrenner on the line.

The Yankees are an example of how real life is not roto. Sometimes a lineup of all stars lacks any team chemistry. Sometimes a slightly less talented player complements the existing stars better.

So, maybe there are circumstances where Rondell White might be more useful than Jason Giambi (other than taking urine tests, of course).

And I can ascertain some circumstnaces where Miers might be more helpful than a career law professor like McConnell.

(31) salaryman made the following comment | Oct 20, 2005 8:21:40 PM | Permalink

Ironman: while your argument about "chemistry" on athletic teams has some validity, the problem with the Yankees (and, alas, Red Sox) this year was that all the "slightly less talented" players were on the pitching staff.

Mr. Walser: I have some sympathy for your viewpoint. I think it might be beneficial to have a practicing attorney from a non-Ivy League law school on the court, but that shouldn't mean that any old practitioner from a non-Ivy should do. I didn't begin to have an opinion about Miers' candidacy (as opposed to forming questions about it) until after her answers to the Senate questionnaire were released. To repeat, the more evidence is presented, the more Ms. Miers looks to be an able commercial litigator and not much more in much the same way that Rondell White looks like a capable big league ballplayer and not much more. There's certainly no disgrace in being a good commercial litigator at a large metropolitan law firm: it's a hard thing to do and those who reach that status may deservedly take pride in having done so. Likewise there's no disgrace in becoming a good but not great major leaguer -- that's an even harder thing to become than litigation partner at a big firm.

My point is that starting for a major league team (incredibly difficult though it is) doesn't "qualify" you for the all-league team or MVP award except in a sense so trivial as to be meaningless. Similarly in my view (although perhaps not in yours) simply being a successful commercial litigator at a reputable firm isn't enough to qualify one for the Supreme Court. Thus, in my mind it's no more an insult to suggest that Ms. Miers is unqualified for the Supreme Court than it is to suggest that Rondell White isn't MVP material.

Now if Ms. Miers' reputation in Texas legal circles were not, in essence, "she's a fine litigator who serves her clients and the public well" (which is what it appears to be) but rather "she is among the best I've seen, head and shoulders above her peers in intellect, ability, experience and judgment" (which is essentially what was said about John Roberts), I'd start moving from skeptical to supportive.

And while I don't think it's necessary to demand "proof" that someone is the "best" candidate I do think that one should be able to say about a Supreme Court Justice what Houston Oiler coach Bum Phillips once said about his star running back Earl Campbell: "Earl may not be in a class by himself, but it sure don't take long to call roll." At this point, I don't think that can be said about Ms. Miers.

(32) Ironman made the following comment | Oct 20, 2005 8:34:31 PM | Permalink

Harriett Miers might have won us more games this year than Kevin Brown

(33) antimedia made the following comment | Oct 20, 2005 9:36:41 PM | Permalink

Herein lies the problem, salaryman.

"My point is that starting for a major league team (incredibly difficult though it is) doesn't "qualify" you for the all-league team or MVP award except in a sense so trivial as to be meaningless. Similarly in my view (although perhaps not in yours) simply being a successful commercial litigator at a reputable firm isn't enough to qualify one for the Supreme Court. Thus, in my mind it's no more an insult to suggest that Ms. Miers is unqualified for the Supreme Court than it is to suggest that Rondell White isn't MVP material."

The Supreme Court is not some "all-star" team that you earn your way on by being the best of the best. It is the court of final disposition for all decisions regarding the Constitution, and it should be peopled by judges who understand not only the enormity of what they do but the gravity of each of their decisions, who have the humility to realize that their decisions will alter lives forever, who do not think themselves the equals (or betters) of the founding fathers (even if they are!)

To understand that, it is helpful, nay it is NECESSARY, to have seen the RESULTS of the law in the lives of people. Name ONE judge, presently sitting on the Court, who brings with them THAT understanding. Who has wrestled with the ambiguities and worried over the impact to their client, who has seen the lives devastated by wrong decisions and rushes to judgment (both civil and criminal.)

I don't even want to begin to tell you the number of lawyers who have attempted to argue the merits of the McDonald's hot coffee case with me, citing precedent and statistics and fact after fact after fact, even arguing that, since the final award was reduced the result was fair. NOT A ONE understood how completely insane it was to blame someone else for your own carelessness, much less make them pay you obscene amounts of money for YOUR error. The COMMON man understands this - even laughs at the silliness of it - all the while praying that they never are caught in the law's trap - for they FEAR the law rather than respect it.

Lawyers have done this. Lawyers have built this fear and lack of respect for the law. Some take advantage of it by "getting paid" in court. Others make life-altering decision simply to avoid the CHANCE that they might be sued.

I don't expect you to understand this. Very few lawyers do. (In fact I'm almost certain you can argue persuasively against my point of view for at least 10 minutes without even having to crack a book.)

We need a Harriet Miers on the Court if for no other reason than to destroy the myth that only the elite may serve, to serve notice to lawyers that brains are not the only requirement, perhaps not even the most important requirement, for justice to be for all.

(34) DC made the following comment | Oct 20, 2005 10:29:51 PM | Permalink


Good post. I remain unconvinced that Harriet Miers should be on the Court, however. I agree with you that she is "qualified" per se. But her qualifications are not particularly impressive. Nor is her writing.

You indicated that many people opposing Miers had ... "formed their views based on faulty information". No, I have reviewed her record and I see no reason to believe she will be a reliable conservative justice.

On the issue of qualifications, though, which you keep going back to ... is there any evidence that Miers herself secured Microsoft and Disney as clients? You understand that many large companies find their way to big firms out of habit or because it is a "safe" choice. The truth is that there are some great lawyers in big firms, but being in a big firm by no means guarantees a certain level of performance. My personal experience with the big firms around here (where you live, too) is they are overrated, unimaginative (indeed, utterly predictable), and scared to death of juries. But hey, I am just a lowly small firm guy. So, I await to be pounced upon by the big firm "elites".

(35) Rob made the following comment | Oct 20, 2005 11:10:41 PM | Permalink


you state "I’d like to think that membership on the USSct ought to be a good bit more selective than even membership in Yale law’s entering class"

There ARE no qualifications for the Supreme Court

Yale Law requires an undergrad degree

Tell us how Patricia Owen or Janice Rogers Brown must have both rejected Yale and simply went to lesser schools. Your position is as muddled and confused as Ann Coulter's increasingly bizarre diatribes, with her most recent rant focused on Mier's bowling skills and the terrible "nightmare" Ms Coulter has endured since the nomination

If you have judicial exceptions to your rule, state them and cite laws and court decisions making them requisites for nominees

(36) George Turner made the following comment | Oct 21, 2005 12:20:18 AM | Permalink

Well Rob, what gets me is the way some of the legal pundits have not only raised the bar, but hurled it like a javelin.

The new pick now has to be the BEST lawyer in all the lands, with experience as a trial judge weighing important cases, with a long list of legal opinions, a long stint as a law professor at an elite university, etc, and preferably a Nobel prize for literature, or at least a Pulitzer.

Only about half of US Supreme Court justices have ever held a law degree (other than honorary). Only around 20% have held a three-year law degree. Yet now having a three-year degree, being head of a state bar, being chief legal counsel to the executive branch of United States Government, and rating as one of the top fifty lawyers in the land is NOT ENOUGH legal skill.

After this mess, I doubt ANY soul will allow themselves to be nominated. We've turned the process into a guantlet.

(37) Rob made the following comment | Oct 21, 2005 12:26:18 AM | Permalink

It is very sad now how even Michelle Malkin, an otherwise perceptive commentator, has now virtually overnight turned into an expert in constitutional theory and the Miers nomination w/o any hint of formal law training, any degree from any law school, or any bar membership in any jurisdiction

THAT is the nature of this relentlessness assault on Ms Miers

"The seeds of the hysteria that afflicted Salem Village, Massachusetts were sown in January 1692 when a group of young girls began to display bizarre behavior. The tight-knit community was at a loss to explain the convulsive seizures, blasphemous screaming, and trance-like states that afflicted the youngsters. The physicians called in to examine the girls could find no natural cause of the disturbing behavior. If the source of the affliction
The Salem Village Meeting House
where the trials took place
was not attributable to a physical malady, the community reasoned that it must be the work of Satan. Witches had invaded Salem."


(38) Mike in Colorado made the following comment | Oct 21, 2005 7:46:11 AM | Permalink

Beldar: Great post; well reasoned, chock full of facts and excellent observations, and very persausive. Unfortunately, I doubt that it will have any effect whatsoever on the people at The Corner or other pundits who have had a knee-jerk reaction to the Miers nomination from the minute it was announced. Despite all their own "well reasoned and factual" objections, it seems obvious to me that their real objections are based on emotion. They were so absolutely sure that the President would nominate someone from THEIR short list of candidates that when he didn't they reacted with immediate shock and anger. They're still angry over this insult to THEIR judgement and have now dug in their heels. After stirring up this hornets nest, they simply can't do anything other than continue to resist, or they'll look worse than they already do. A little while ago, when Democrats were trying to force nominee changes, many of these same people were saying that the President's nominees deserved an up or down vote. Now they want Miers to withdraw and another nominee put forward. They want to substitute their judgement for that of the President, just like the Democrats. They can try to rationalize this away all they like, but the truth is that they look hypocritical at the very least. Their credibility has been and continues to be damaged, no matter what the outcome.

By the way, if I need a lawyer, I think I'll call YOU.

(39) Ironman made the following comment | Oct 21, 2005 8:47:46 AM | Permalink

I posted this on Confirm Them last night, even National Review finds no support for uberelitist supremacy

Guess Justice Story thinks Annie Coulter’s bizarre notion that a judge should divorce himself from common sense is well, nuts.

from National Review

A friend sends along this quotation by the great Justice Joseph Story. Story was nominated to the Court in 1811, at the age of 32, by President Madison. (Since he himself drafted a great deal of the Constitution, it can be safely assumed that Madison knew what he was doing.) Working closely with Chief Justice John Marshall, Story served until his death in 1845.
“Constitutions are not designed for metaphysical or logical subtleties. . . . They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense.”

Stick that in your merlot, Ms. Coulter

(40) Carl Pham made the following comment | Oct 21, 2005 9:52:20 AM | Permalink

You know, if Madison had intended that a Supreme Court justice should be eminently and evidently qualified to all and sundry, he would have made it an elected position.

So, he didn't. That means it's the Constitution's position that the way to get Supreme Court justices is to trust one man's judgment -- the President's -- over any imaginable summary over the opinion of everyone else.

Why does this make any damn sense at all? A commenter above touched on it, and anyone middle-aged who's had to make decisions about people based on their paper record knows this truth: in the end, a paper record, or a collection of facts thinly sprinkled amongst many people, or the summed opinions of many people who barely know a person -- none of these is quite as reliable as the judgment of one person who knows your target well.

I would assume this is because human judgment is still something that can't really be reduced to an algorithm, a set of rules (e.g. "graduate from college X in percentile Y, have tried Z cases to juries..."). There is some gestalt impression, some instinct, some intuitive component to the best human judgment, and it just can't be effectively communicated on paper or via speech.

Does this all mean the President has done the right thing in picking Miss Meirs? Hardly. What I suggest it may mean is that there is, Constitutionally and logically, no way at all to second-guess his judgment at this time. The long experience of humanity tells us that the odds are high that any second-guessing by committee is going to be sharply less predictive than his original judgment, precisely because it must omit all the imponderable inarticulables of one man's solitary judgment.

(41) Rob made the following comment | Oct 21, 2005 10:05:17 AM | Permalink

Rich Lowry in his latest rant:

"There is one way that stealthiness is helping Miers. Her nomination would be in an even more precarious state if Republican senators and members of Washington’s conservative legal establishment weren’t too polite, cautious, or cowardly to say publicly what they really think about it. It’s time for the pretense to end"

Mr Lowry apparently seeks to expand the witch hunt

My opinion of Mr Lowry is such that I find it more polite to quote a 3rd party

I quote that famous nightclub swinger Buddy Love (as portrayed by Jerry Lewis in the NUTTY PROFESSOR)

"you finally went and done it, messed up a good thing, next time just keep your BIG MOUTH SHUT"

(42) Jack John made the following comment | Oct 21, 2005 10:40:02 AM | Permalink

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 Forms 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?

(43) antimedia made the following comment | Oct 21, 2005 10:52:11 AM | Permalink

Oh, good Lord, "jack john", give us a break. A good Supreme Court justice is like pornography. You know one when you see one.

ANYONE who is a US citizen is both qualified AND eligible to be nominated to the Supreme Court, subject to the Senate's advise and consent.

And I dare say a LOT of common people could do a better job than the idiots who sit in judgment now.

Do I need to remind you of Kelso? My God! ANYONE with half a brain knows that's one of the DUMBEST decisions ever to come from the Supreme Court. And every one of those presently serving is considered emminently qualified. Which tells you all you need to know about qualifications.

Return the Court to the people.

(44) Jack John made the following comment | Oct 21, 2005 11:53:35 AM | Permalink

I was answering the claims of Miers' defenders, not saying that any nominee must be able to answer the questions I laid out. And any citizen is not qualified: you are not, because you cannot read:

I 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.

(45) antimedia made the following comment | Oct 21, 2005 12:48:59 PM | Permalink

"jack john" writes, "I was answering the claims of Miers' defenders, not saying that any nominee must be able to answer the questions I laid out. And any citizen is not qualified: you are not, because you cannot read:"

Setting aside the unnecessary ad hominem, I did not respond to your claim by saying Miers didn't have to answer the questions. I responded to it by saying that ANY citizen is qualified if they are nominated and the Senate approves.

In fact, if neither the President nor the Senate objected, someone who couldn't read would be "qualified".

Do you get it now?

All these "qualifications" that people claim exist do not, in fact, exist. Complaining, therefore, that Miers is not qualified, displays an ignorance of the Constitution that reveals that the complainants are not qualified to judge whether Miers is qualified.

Now do you get it?

The idea that somehow, if Harriet Miers can't answer a bunch of questions to your satisfaction, Miers is not "qualified" to serve on the Court simply displays YOUR ignorance of what "qualifications" are required.

THERE ARE NONE. Just as there is no right to privacy in the Constitution, no right to abortion and no right to not suffer from disapprobation.

The very reason the Court is so totally screwed up now is because judges keep finding "rights" in the "penumbra" of the "emanations" of the Constitution.

So, for example, a federal judge in Georgia finds that citizens' "rights" would be violated by having to show evidence that they actually are citizens before being allowed to cast ballots for elections that only citizens may vote in.

You cannot get more convoluted or confused than that, yet this judge is, I'm sure, thought by some to be "qualified" to sit on the federal bench.

Can I make this any more plain?

(46) Jack John made the following comment | Oct 21, 2005 1:17:56 PM | Permalink

"I responded to it by saying that ANY citizen is qualified if they are nominated and the Senate approves."

That's putting the cart before the horse. You can't be qualified simply because you were confirmed. Of course you can be unqualified and yet be confirmed. If Bush nominated a brain-dead baby and the Senate confirmed, that doesn't mean a brain-dead baby is qualified for the Supreme Court. Do you disagree?

The idea that somehow, if Harriet Miers can't answer a bunch of questions to your satisfaction, Miers is not "qualified" to serve on the Court simply displays YOUR ignorance of what "qualifications" are required.

Again, this was not my argument. Miers' defenders say she is qualifed BECAUSE she is a great complex litigator. For argument's sake, I accept this premise. Even if the premise is true, Miers is not qualified, because she isn't great complex litigator. How do we know that? Well, judging from the vehemence of your post, it seems quite clear you recognize that she couldn't answer dequately those questions. As do we all.

And noting that you cannot read is not an ad hominem in this context. Supreme Court Justices must read in order to perform their function. If you cannot read, you cannot perform as a Supreme Court Justice. So the claim that any citizen is qualified to be a Supreme Court Justice is invalid, unless you literally believe that brain-dead babies are qualified to serve on SCOTUS.

May I ask where in the Constitution it says "Brain-dead babies are automatically qualified to sit on the Supreme Court"? I do not see that in Article III.

Some textualist you are! You haven't made things plain, you've made them absolutely ABSURD.

This is exactly why we have Senate hearings where Senators ask tough questions like the ones I posed.

(47) Salaryman made the following comment | Oct 21, 2005 1:47:09 PM | Permalink

"ANYONE who is a US citizen is both qualified AND eligible to be nominated to the Supreme Court"

Boy, do I feel dumb. I spend all this time talking trash about Rondell White and now it turns out he could be our next Supreme Court justice.

(48) Ironman made the following comment | Oct 21, 2005 1:52:20 PM | Permalink

Salaryman, I spoke with Rondell about that. He would be honored to be nominated but wants assurances that he gets the sales team they used on Roberts, not Miers.

(49) antimedia made the following comment | Oct 21, 2005 2:41:14 PM | Permalink

Well, this I cannot resist.

"May I ask where in the Constitution it says "Brain-dead babies are automatically qualified to sit on the Supreme Court"? I do not see that in Article III."

It's the paragraph directly below the one that explains the right to privacy. :-)

(50) antimedia made the following comment | Oct 21, 2005 2:54:08 PM | Permalink

Oh, and no, "jack john", there is no requirement that a SC justice be able to read - only to judge. They are required to rule on Constitutional and federal law and treaty issues. That's it.

It is the President's perogative to nominate whomsoever he or she desires, and it's the Senate's perogative to provide advise and consent.

All else is a nullity, despite all the protestations to the contrary. Or perhaps YOU can show ME where, in the Constitution, the requirement is that a SC justice must be literate.

Yes, I'm being a little silly, but it's to make a point. All these so-called "qualifications" are nothing more than the personal desires/requests of people who aren't happy with the President's choice. They have no basis whatsoever in the Constitution.

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