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Tuesday, October 04, 2005

A rebuttal to Prof. Barnett's "Cronyism" op-ed re the Miers nomination

I very strongly disagree with Prof. Randy Barnett's op-ed in tomorrow's Wall Street Journal  (already available online). On the Volokh Conspiracy blog (where he's also entertaining comments to the op-ed), Prof. Barnett explained earlier today that he "wrote [the WSJ] essay over the past few hours without reading anything on the blogosphere, so it reflects [his] wholly unvarnished opinion." I give him kudos for writing quickly, but not well. This is far less coherent than his usual tight and polished writing.

We read, for example, these two paragraphs back to back:

Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.

Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.

I'm sorry, but that's worse than just overextending one's sports metaphors. That's downright internally inconsistent. I'll grant you that the Supreme Court is more important; but if she's "well qualified" for a seat on the court of appeals, then it's a huge leap to "unqualified" — a word Prof. Barnett doesn't quite get to, but obviously approaches — for the Supreme Court. And with due respect to Prof. Barnett and other academics, being a law professor ain't exactly the school of "hard knocks" either, and neither is prior judicial experience the sole (or even the best) way to learn that which "hard knocks" teaches.

Indeed, Prof. Barnett fairly drips with law professor-type elitism when he writes this statement:

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate.

Not to put a fine point on it: that's just nonsense. It would be the very, very rare practitioner — as opposed to law professor or, perhaps, public interest group lawyer — who's spent his or her career polishing up a "well-considered 'judicial philosophy.'" Indeed, one of the ways John G. Roberts, Jr.'s career as a practicing lawyer was so unusual — so different from what 99.9 percent of practicing lawyers' careers have been like — was that his private practice dealt almost entirely with appellate litigation, and most of that at the Supreme Court level. Prof. Barnett himself has argued at least one celebrated case in the Supreme Court, and perhaps he's had other experience practicing law outside the classroom. In any event, it's surprising, but also very disappointing and frankly a bit insulting, that he seems to think lawyers who are neither judges nor professors must be somewhat retarded.

If you restrict Supreme Court nominations to those individuals who've spent their lives living in that rarefied atmosphere, pondering constitutional minefields to the exclusion of everything else, then you're going to end up with a Supreme Court whose members are out of touch both with America and with nuts and bolts legal practice. You're going to end up with a Court full of prima donnas who can't "just" concur, but instead feel compelled to write countless separate opinions. You'll often have no majority opinion, but instead special concurrences, partial concurrences, separate dissents, and partial concurrences only in Part III-D-6(f) but not Part III-D-6(g) of another's minority opinion. You'll get a Court that on the same day finds a display of the Ten Commandments constitutional in Texas and unconstitutional in Kentucky. You'll get a Court that takes up an incredibly important issue like redistricting, one that's splintered the Court in previous years, and then just leaves things more splintered when it's done. You'll get a Court that flip-flops within the space of a few years on issues involving capital punishment and what the government may or may not do in an attempt to promote morality. And you'll never see another unanimous Court like the one that produced Brown v. Board of Education.

You'll get a Court, in other words, with all the failings that this Court has had for the last several years.

My blogospheric friend Prof. Stephen Bainbridge, who's another early critic of the Miers nomination, quoted today the famous and still very funny comment by Sen. Roman Hruska on Nixon nominee Harold Carswell: "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?" Well, I'm not arguing in favor of mediocre nominees. What I am arguing is that a nominee is not mediocre, or unfit, or likely to be a disaster on the Court, simply because he or she comes from a career spent mostly in private practice! We in private practice tend to spend less time worrying about the meaning of life and the universe and how that guides and informs the evolution of substantive due process under the Constitution. But that's exactly the kind of — forgive, again, my bluntness — metaphysical crap you get in Supreme Court opinions written by lawyers who've spent most of their careers as academics.

Prof. Barnett asks: "Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president?" To which I answer: Absolutely and emphatically, I do indeed doubt that! I challenge that assertion, and I fortunately have something more than sneering innuendo to refute it. By historical American standards, any Supreme Court nominee would be considered qualified based on a successful career in a sophisticated private business law practice — at the head of a large, first-rate law firm in a large city of a large state — that has also included leadership positions in the local, state, and national bar, plus a substantial tenure in public service as counsel to her home state's governor and then the President of the United States. Ms. Miers' overall qualifications compare quite favorably to those Sandra Day O'Connor had when she was nominated. Indeed, her qualifications are very much in the mold of, and quite arguably superior to, those of the late Justice Lewis F. Powell, Jr., who had led a comparable law firm (Hunton & Williams) to Ms. Miers' and had been President of the American Bar Association (in an era in which it was still an apolitical service organization instead of just another special interest pleader). Only someone uninformed or unfairly dismissive of excellence in the private practice of law could ask a question like Prof. Barnett's, even rhetorically.

But the saddest and most troubling part of the early, reflexive opposition to the Miers nomination is from people who, like Prof. Barnett, are muttering darkly (and necessarily vaguely) that this nomination is comparable to LBJ's nomination of Abe Fortas to become Chief Justice in 1968. The Fortas comparison is badly, badly misleading — a genuine cheap shot. Abe Fortas' nomination to become Chief Justice was doomed if for no reason other than it came at the end of LBJ's term. That he was LBJ's longtime close friend and adviser, however, is not what leaves the lingering smell; many, many other Justices have been close friends of Presidents. Rather, the lingering smell comes from the fact that Abe Fortas had routinely engaged in ethically questionable conduct — including possible financial corruption — that made him unfit to be a judge at any level. He'd sometimes used his undeniable skills and intellect in the service of wicked causes, among them securing Lyndon Johnson's senate election through vote fraud. He'd maintained relationships that involved extra-judicial compensation even while he was an Associate Justice. Unless and until Prof. Barnett is able to make and back up comparable allegations against Harriet Miers, then he owes her an apology for even mentioning her name in the same paragraph with Abe Fortas'. It's an unjustified smear, and it's beneath his dignity (and certainly beneath hers).

Moreover, the classic meaning of "cronyism" is selecting someone for a position that they're incapable of earning and totally unfit for on their own. If all Harriet Miers had to commend her, as Prof. Barnett claims, is that she's been George W. Bush's lawyer, and if we could find no reason in her record, other than Dubya's friendship, even for her to have held that position, then a charge of "cronyism" might be appropriate. But Harriet Miers was already an accomplished and respected lawyer and leader before she ever represented George W. Bush. She's had accomplishments aplenty that are entirely unrelated to him. She well merited, based on demonstrated ability, the positions through which they became better and better acquainted. By every report, she's discharged those positions competently and effectively, rather than just skating by on the basis of the President's favor. Prof. Barnett and the others who are crying "Cronyism!" are using friendship and trust that's developed through superb service with the President as a disqualifying factor, irrespective of the nominee's other credentials and experience. That's a mistake. Alexander Hamilton was not against friendship, he was against incompetence and incompetents being promoted due to friendship. Hamilton himself was both George Washington's friend and his military and then political protégé, the "son Washington never had" and also his most effective cabinet secretary.

It certainly seems to me that Prof. Barnett is using the facts that Ms. Miers comes from a practicing lawyer's background, and that she's become a trusted friend while serving capably as Counsel for the Governor of Texas and the President of the United States, as his sole bases for arguing against her nomination. I believe the nicest term for that is "snotty." It's an unbecoming attitude, and this essay is just not up to his usual high standards of reasoning and writing. There may be persuasive reasons for opposing the Miers nomination, but I don't think these reasons are them.

Posted by Beldar at 01:19 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to A rebuttal to Prof. Barnett's "Cronyism" op-ed re the Miers nomination and sent a trackback ping are listed here:

» Who is Harriet Miers? from La Shawn Barber's Corner

Tracked on Oct 4, 2005 9:06:14 AM

» I offer my concurring opinion to Beldar from EagleSpeak

Tracked on Oct 4, 2005 10:01:07 AM

» Bush Press Conference from protein wisdom

Tracked on Oct 4, 2005 10:52:20 AM

» I trust the President from Pull On Superman's Cape

Tracked on Oct 4, 2005 11:32:09 AM

» Miers - a disappointing pick from LyfLines

Tracked on Oct 4, 2005 12:56:18 PM

» Positive Miers Reax from Literal Barrage

Tracked on Oct 4, 2005 2:15:26 PM

» http://www.outsidethebeltway.com/archives/12223 from Outside The Beltway

Tracked on Oct 4, 2005 3:01:57 PM

» The Trouble With Harriet, Day Two from No Oil for Pacifists

Tracked on Oct 5, 2005 1:16:50 AM

» Elitism and Cronyism from Parableman

Tracked on Oct 5, 2005 3:25:18 PM

» Cronyism, Hamilton, and Barnett from Neo Warmonger

Tracked on Oct 6, 2005 7:29:57 AM


(1) DWB made the following comment | Oct 4, 2005 1:42:38 AM | Permalink

Great post Beldar... thanks for providing some sanity amidst the hysteria that seems to be the norm over the last 24 hours.

(2) Senator Palpatine made the following comment | Oct 4, 2005 3:11:10 AM | Permalink

Excellent comment, Beldar. I am big fan of yours. I am disappointed you spend so much of your time in the "real world" and not in the blogosphere, we could use your insight more often.

I think your points are excellent, and I, too, disdain the elitism and aloofness of which you speak.

Even as a critic of the President's choice, I can agree with most of what you say here. But I have a few words in defense of the criticism which has erupted, justifiably in my view, from the right.

John Roberts was met with limited enthusiasm from the right for a lot of the same reasons Miers is now under attack. But Roberts was initially nominated to replace O'Connor, so it was thought his lack of a paper trail was meant to make confirmation easier. And while his time as a judge was limited, his stellar career as a supreme court specialist ensured his competence.

What we have with Miers is essentially another blank slate candidate (like Roberts), but this time conservatives expected a stalwart conservative with a lengthy paper trail. Many (including myself) grudgingly went along with Roberts, but wanted the President to come through on his next pick. Now we have another blank slate, but with none of the mitigating factors Roberts had in his favor, such as his stellar credentials and his initially replacing the "moderate" justice O'Connor. I wouldn't be happy with a Roberts clone either. I wanted a justice we could actually know something about before she takes her seat.

While your points are well taken about the value of ordinary life and ordinary lawyering, don't you think a Supreme Court justice should spent considerable time thinking seriously about constitutional philosophy, federalism, and the role of Courts in our society before they take their seat on the Supreme Court? No doubt she has done this, but what public record of her thoughts exist on these questions? Do we really know what drives this women's views on the Constitution (or Roberts' for that matter)?

Trust Bush? Sorry, Republicans have been burned too many times.

(3) spongeworthy made the following comment | Oct 4, 2005 7:40:10 AM | Permalink

I'm not sure the Court at this time needs a lot of lofty thinkers on what the law can or should be. A real working lawyer might just know what the law is and respect that.

I also notice a lot of folks tossing around the term "mediocrity" who couldn't carry this woman's jock strap.

(4) Cheryl made the following comment | Oct 4, 2005 7:40:39 AM | Permalink

"perhaps he's had other experience practicing law outside the classroom."

FYI - regarding Barnett in the rarified air. He started his career, not as a professor, or even as a law clerk. After law school, he worked in the Cook County State's Attorney's office: http://www.randybarnett.com/pdf/cv.pdf

Perhaps you are unfamiliar with Google, but using it before ranting can often be helpful

(5) Dean Esmay made the following comment | Oct 4, 2005 8:03:44 AM | Permalink

I'm not much of a conservative, so maybe my comments don't carry much weight, but I agree with you Beldar.

You can go through history and find tons of justices who were never judges or legal scholars. In just recent generations we've had Byron White, Lewis Powell, William Rehnquist, and Clarence Thomas (unless you count the five minutes Thomas was a judge before being elevated). All got their jobs through so-called "cronyism," i.e. being well-known in political circles and not much outside of them.

(6) amelia made the following comment | Oct 4, 2005 8:06:01 AM | Permalink

Thank you! You expressed my opinion of the criticism perfectly. This working lawyer thinks you are spot on.
I can't remember the last time I quoted a law review in a brief or in oral argument. Frankly a law prof is one of the cushiest jobs out there.

(7) Lexingon Green made the following comment | Oct 4, 2005 8:12:41 AM | Permalink

I am a practicing lawyer myself, and I was a clerk for an appellate court judge who had common sense, a strength which is not common enough among his brethren of the appellate bench. I agree emphatically with this analysis. I have known many law professors. A distressingly small percentage of them are serious people. Even smart ones, for example Akhil Amar, use their erudition to put scholarly armor plate on their desired outcomes. In other words, they don't do scholarship, they write clever briefs in support of their ideological positions in the guise of shcolarship. Participants in that bogus game have no special advantage over smart practitioners. Moreover, practicitioners have a work ethic far beyond what most law profesors can imagine, or which they fled from into the comfy chair of academic life.

The Supreme Court could use a large dose of practicality. The nearly unusable opinions that come out of the SC are a source of uncertainty and hence waste and expense. Perhaps Roberts and Miers can impose some sense that these people are meant to be public servants, not circus performers.

(8) Simon made the following comment | Oct 4, 2005 8:27:21 AM | Permalink

In what ways do you consider Miers credentials to be "arguably superior" to Justice Powell's?

I happen to agree that grand theories of constitutional law are overrated, and that truly diverse experiences among Court members is desirable (practicing lawyers, former elected officials, district court judges, someone from the state courts). However, I don't think that such a broad and defensible principle necessarily implies a defense of Ms. Miers. Of all the practicing lawyers in the country, was she really the best? (5 best? 10 best?) Or just the one closest to the president when he made his decision?

(9) Beldar made the following comment | Oct 4, 2005 8:30:00 AM | Permalink

Cheryl, thanks for that link. Following a similar one over at the VC blog, I'd looked Prof. Barnett up before, and I think we've corresponded by email in the past. I'm generally a fan, and tried to be respectful in this post, but I do genuinely think most of the criticism of Ms. Miers' record and suitability is elitist and unjustified, and that in this instance, his op-ed fell into those traps.

If he's been a working prosecutor, that's all the more reason he should value the potential contributions to the Court from someone who's had a solid career as neither a judge nor an academic. I'm frankly flummoxed and perplexed as to why he and so many others (including some of his co-bloggers at the VC, but not its namesake) are so dismissive of Ms. Miers' credentials as a practicing lawyer and a public servant. If my post reads to you like a rant, that's probably a result of the offense to practicing lawyers that I believe is inescapable in his op-ed, whether it was intended or not.

(10) Beldar made the following comment | Oct 4, 2005 8:41:13 AM | Permalink

Simon, she certainly is the practicing lawyer in whom Dubya has the most confidence and the greatest certainty, justified or not, about how she'll turn out on the bench. I don't claim that she's necessarily among the five or ten best practicing lawyers in the country, but then again, I doubt you could get any two lawyers in the country to agree who makes up that list. She has made the National Law Journal's top 100 list, for example.

As for the Powell comparison: Ms. Miers has managed a substantially larger firm than he did in a time of more rapid flux in the legal industry. They both had only minor elected offices, Justice Powell on a Virginia school board and Ms. Miers as a city councilwoman; both were active in local, state, and federal bar associations, and there Justice Powell has a slight edge. But as far as I know, there was nothing in Justice Powell's career before taking the bench in the way of sustained, full-time public service comparable to that which Ms. Miers has rendered as counsel first to the Governor of Texas and then to the President of the United States. I suspect she's had considerably more responsibility in her present job, for example, than William Rehnquist had in the Nixon ("that clown") DoJ.

(11) Ernest Brown made the following comment | Oct 4, 2005 8:51:04 AM | Permalink

"The base" is angry because they rightly feel that they have had to carry the President's water since the election, especially on Katrina & Brown.

Now the President effectively says, "The media is right, I am a crony-lover," and breaks a knife off in the back of his erstwhile loyal supporters.

If I want a legal administrator, I'd call Miers. If I want a corporate shill who can work well with a filthbag like Eisner, I'd call Miers.

If I wanted a principled and talented jurist for the highest court in the land, I'd call on Janice Rogers Brown.

(12) Simon made the following comment | Oct 4, 2005 9:05:34 AM | Permalink


I'm just not sure why it is we should accept the President's assurances that she is the best person for the position simply because he is the President. (How would he know? How many practicing lawyers has he actually met?)

The President is known for his loyalty to his staff, which is generally a noble trait, but less so when one is considering an appointment not to personal staff or policy positions but an independent judiciary.

As for her comparisons vis-a-vis Powell, I think you are shortchanging the import of his experience on the Richmond school board and overselling Mier's experience as counsel to George W. Bush, whatever office he might hold. She's proven herself loyal to a successful politician, beyond that, I don't know what her service is supposed to convey. (And setting aside the comment on his brilliance that David Frum reported that I assume is some sort of joke.)

I suggested when I posted a similar comment on the Volokh thread that a good test for Supreme Court nominations might be: is it possible another president (of the same party) might make the same appointment? In most cases I think the answer is 'yes.' With Miers, I think the answer is clearly 'no.'

(13) Beldar made the following comment | Oct 4, 2005 9:38:25 AM | Permalink

Simon, you do realize, I assume, that "Counsel to the President" is the position under which John Roberts was a subordinate in the Reagan Administration? That in the overall system, that position has unique responsibilities distinct from — but in many ways equal to, and on some topics more important than — those of either the Attorney General or the Solicitor General (the latter being another office in which John Roberts was, again, a subordinate, albeit the highest-ranked one)? She hasn't just been George W. Bush's personal lawyer, fixing his parking tickets or whatever. She's been Counsel to the POTUS, to the office, with all the challenges and responsibilities that the office entails. I rather think that's a bigger deal than being on a state school board on a part-time basis in Virginia, even if that was during troubled times.

And you're right — you don't know (and neither do I) everything she's done as part of her service to the highest executive office in the world, because it's almost all been done in private, privileged circumstances. But saying that service only shows she's been loyal to a politician — well, that's certainly inconsistent with how Administration insiders (including Frum) describe her service. And her sole current client says he's well satisfied with her performance, and he has not only the best position from which to make that assessment, but the constitutional right and duty to make SCOTUS appointments. No, you don't have to take his word for that, of course not. But I, for one, am willing to — even if this nomination robs us of the chance to enjoy bloody carpets on the floor of the Senate, a circus many of us were looking forward to.

(14) anon made the following comment | Oct 4, 2005 9:48:22 AM | Permalink

The Fortas comparison is indeed inapt, but not because Miers is better; rather, it is inapt because Fortas was way, way more qualified for the Court than Miers. Fortas graduated 1 or 2 in his class from Yale Law. Miers did nothing special at SMU. Fortas founded Arnold & Porter, one of the top 10 firms in the country. Miers managed for several years a firm that was (maybe) in the top 10 in Texas. Fortas was selected to be LBJ's lawyer because he was one of the best lawyers in the country beforehand. Miers became Bush's lawyer because, well, we don't really know. But not because she was among the best in the country. Bottom line, Miers isn't nearly as qualified as Fortas was.

(15) Chuck Green made the following comment | Oct 4, 2005 9:48:24 AM | Permalink

It's fun to win an argument isn't it? This one was a slam dunk. As an extraordinarily successful lawyer in private practice, there should be no question as to whether Meirs is "qualified" to serve on the Supreme Court. Whether she will be as conservative as many hope she will be is a question that only time will tell. I am going to assume she has instincts gravitating toward a conservative judicial philosophy, even if not as clearly defined as that of the law professor-types, and that she will be favorably influenced over time by Scalia, Thomas, and Roberts. The fact neither Meirs nor Roberts are seen as ultra-conservatives may enhance their ability to influence the court, and this is the ultimate goal. It appears that barring a major belly-flop in the hearings, Meirs will be confirmed. This being the case, there is reason to be excited about the potential of the new Roberts court.

(16) Ernest Brown made the following comment | Oct 4, 2005 9:56:56 AM | Permalink


Beldar hasn't "won" any argument, quite the opposite.

By that logic, Melvin Belli should have been Chief Justice and Clinton should have appointed Bernie Nussbaum instead of Ginsberg.

Nope, Miers has "crony" and "corporate shill" written all over her.


You're spot on. Fortas was known to be a great legal mind. Miers has the ability to suck up to corporate swine like Eisner. No contest, no comparison.

(17) Ernest Brown made the following comment | Oct 4, 2005 9:59:59 AM | Permalink

Correction, -Johnny Cochran- should have been Chief Justice.

(18) Ernest Brown made the following comment | Oct 4, 2005 10:03:58 AM | Permalink

Greg Djerejian nails it:

"It's ultimately that she's just not Supreme Court timber. Harry Reid can cheer-lead her if he wishes, showing major Democrats don't care a whit about serious constitutional credentials on the bench either, but those of us who are proud of this court must demand better. We should root for her defeat--perhaps by an alliance of thinking Republicans and Democrats. The Achilles heel of this President has become such displays of bovine worship at the altar of some warped conception of loyalty. Be loyal, yes, but demand excellence and competence and, yes, accountability in critical postings dear God! I'm now forced to conclude that Bush, after such a hugely good show with Roberts, is nevertheless willing to be unserious and even reckless, more so than his father, with appointments to the highest court in our land. Look, she might prove a Scalia rubber-stamp, and conservatives will be happy that she votes 'right' (the coded message Cheney was peddling today to Limbaugh). But a man of character and vision wouldn't stoop to such a low threshold of what makes a good SCOTUS pick. He would look for an intellectual leader, a bona fide constitutional thinker. We all know who they are, and that there were far more distinguished picks available. Instead, Bush went for a relative mediocrity. This is not to take anything away from a woman who has had a very distinguished career in private practice. No, Locke Liddell & Sapp is not Covington or Williams & Connolly or Cravath or Sullivan & Cromwell. Still, it's a decent firm in an important American city that she rose to co-head. But a hard-working law firm manager, a decent litigator, a tough cookie who gets results--these are not the credentials for our highest court. Nor should it be merely dogged loyalty to a President. What matters is serious intellectual depth, profound understanding of constitutional law, potential greatness. She fails on all three counts. And, with all due respect to a successful private sector attorney, I have to say rather dismally."

(19) Simon made the following comment | Oct 4, 2005 10:11:17 AM | Permalink


1. I'm sorry, but the suggestion that the Counsel to the President is a "more important" position than either the AG or the Soliciter General is simply ludicrous, at least on topics that are relevant to potential judges (after all, this is a judicial nomination on which we are expounding). POTUS counsel is a terribly important position, true, but it is important for reasons (loyalty to the president, discretion, acute sense of interplay between law and policy, sense of "fair brokership" among competing Administration factions) that I would argue are among the lesser important qualities in SCOTUS justices.

Consider the list of previous White House counsels: Clark Clifford, Charles Murphy, Edward McCabe, Ted Sorenson, Charles Colson, John Dean, Leonard Garment, Bill Casselman, Lloyd Cutler (x2), Fred Fielding, Boyden Gray, Bernie Nussbaum, Abner Mikva, Jack Quinn, Lanny Davis, Charles Ruff, Beth Nolan, Alberto Gonzalez, Harriet Miers. Fine lawyers, all. But only in this president’s administration would any be seriously considered for the Supreme Court (save perhaps Judge Mikva). Does that tell us something about the relative quality of Gonzalez and Miers vis-a-vis their predecessors? Or does it tell us something about the president?

2. Miers suffers even if you credit the counsel as a legitimate stepping stone to the SCOTUS. Miers has served as counsel for less than a year; before that, she served as deputy chief of staff and staff secretary, important as policy positions, but not necessarily as legal ones.

3. My point about loyalty is, in part, that she has only had to prove herself during her public service to one person, George Bush, which to my mind limits its value in evaluating her credentials. I would like to think that the President selects “the best people for the job,” not “the best people he happens to know and has extensive experience with.”

In a sense, my complaint is that the President has committed the same error that Thrasymachus did: “because they are my friends they must be good.” Well, no, that’s not quite the case.

(20) Jim O'sullivan made the following comment | Oct 4, 2005 10:18:04 AM | Permalink

I'm with Beldar on this one. And Simon, sorry, you seem like a nice guy, but you are way off on this one. She didn't come to be acquainted with the man who would become president of the United States by serving him cocktails or collecting signatures for his election petitions. She got to know him because of a lifetime of hard work and outstanding achievement.
If another President wouldn't have selected her, so what. It just means that this hypothetical president would be limited to the usual collection of law professors and nerdy circuit court judges who have turned our constitution and laws into such pretzels with their musings about life's meaning, when the questions before them are uncomplicated things like whether sodomy can be outlawed.
Real people who have held down real jobs! What a concept!

(21) Simon made the following comment | Oct 4, 2005 10:29:39 AM | Permalink


There are hundreds, if not thousands, of lawyers in the country who have worked just as hard and been just as successful (under whatever rubric you choose to apply) as Ms. Miers, who are distinguished from her only by their misfortune in not working for/befriending/impressing George W. Bush.

Do I think that all of them, but for their misfortune, are qualified to sit on the Supreme Court? No, probably not. Do I think that working for/befriending/impressing George W. Bush is either a necessary or sufficient quality in Supreme Court justices? No, except for the obvious point about him making the ultimate decision. Again, though, I would hope he would be wise enough to make decisions on relevant factors (e.g., legal skills) and not irrelevant ones (e.g., "do I know her?").

(22) Daniel made the following comment | Oct 4, 2005 10:35:25 AM | Permalink

Although Roberts' credentials are amazing, one criticism was that he had no coherent judicial philosophy. That causes me to suspect that only a law professor is likely to have such a coherent philosophy.

(23) Karl made the following comment | Oct 4, 2005 10:38:48 AM | Permalink

I don't question Miers achievements (law firm, political service, first woman, blah blah blah), but c'mon people, this is the freakin' SUPREME COURT.
The Supreme Court should be reserved to the best and brightest minds on constitutional law. Period. Political service, real world accomplishments are irrelevant. Once we start saying that trial attorneys and politicians are just as qualified to expound on the Constituion as people who have studied Con. law as a profession, who have written and fulminated on what the Constitution means, then we are abandoning the high ground. Remember who led the Court down its path of emanantions and penumbras. Warren was a governor, Douglas was the head of the SEC, Black was a Senator. They were qualified to do many things, but interpret the Constitution was not one of them.
If you put unserious and unqualified nominees on the Court, be prepared to reap what you sow.

(24) bobbie foote made the following comment | Oct 4, 2005 10:42:40 AM | Permalink

The dumbest opinions on the Supreme Court were written by judges who had been JUDGES. Ms Miers has a degree in Math. Judge O'Connor had a degree in Economics. They have different talents. Perhaps we need a more mathematical mind on the court.

(25) Jerald H. Curtis made the following comment | Oct 4, 2005 10:52:19 AM | Permalink

""The base" is angry because they rightly feel that they have had to carry the President's water since the election, especially on Katrina & Brown.

Now the President effectively says, "The media is right, I am a crony-lover," and breaks a knife off in the back of his erstwhile loyal supporters.

If I want a legal administrator, I'd call Miers. If I want a corporate shill who can work well with a filthbag like Eisner, I'd call Miers.

If I wanted a principled and talented jurist for the highest court in the land, I'd call on Janice Rogers Brown.
Ernest Brown"

Mr. Brown:

About the Ex-FEMA Director I think that it is amazing that he handled 4 hurricanes last year with only the minimal problems associated with a big bureaucracy but was totally unable to handle Katrina or was it such a foul up on a local & state level? About cronies at the executive level you see a lot of it, it is the way that most people fill positions with people that they trust and it is not necessarily a bad thing it is only when you have a person that can absolutely not do the job that you have problems and that is why the real reason for the Senate’s advise and consent function for Presidential appointments.

Sure I too would have liked to see Justice Rogers-Brown BUT, I am not the President and I do trust the person that I helped elect to that position.

I wonder what you reaction would be if he had nominated someone who had never been a lawyer at all?

(26) Mark L made the following comment | Oct 4, 2005 10:55:03 AM | Permalink

Don't both Souter and Ginsberg come from prestigious Ivy League law schools? Considering the miserable job both of them have done, I would really think twice about snarking that Miers "only" has a degree from SMU and "only" worked in Texas law firms. Perhaps the best aspect that I see about Miers (and I was disappointed by the pick) is that she has solid root *outside* the East and West Coast legal establisments.

(27) Ernest Brown made the following comment | Oct 4, 2005 10:55:49 AM | Permalink


That was my point. Bush's defenders were NOT helped by the WH in making a case for Brown on Katrina, and now this.

It was a total back-stab.

(28) the snob made the following comment | Oct 4, 2005 11:25:51 AM | Permalink

When discussing potential presidential candidates you'd often her the expression, "Has he at least run for dogcatcher?" Has Miers ever argued a Supreme Court case, even once? What makes Miers stink to high heaven in my estimation is that she's so clearly punching above her weight. I'm an entrepreneur myself and hate all lawyers (except mine who's a great guy) and cede to no one in my general distaste of effete intellectualism. But if a CEO appointed a regional branch manager to succeed him, the shareholders would throw a fit.

(29) AKB made the following comment | Oct 4, 2005 12:03:47 PM | Permalink

Hey, do you know how Ginsburg got in the SC? Her Husband was Bill's biggest contributor from NY. The biggest. He has said his reason was to have his wife being considered as a SC when anything opens up. I did not see any "Cronyism" then. Why now?

(30) Ernest Brown made the following comment | Oct 4, 2005 12:10:12 PM | Permalink


You're exactly right. I don't care what her religious beliefs are, I want a competent jurist.

(31) Beldar made the following comment | Oct 4, 2005 12:13:17 PM | Permalink

anon, I said in my original post that Fortas was talented. He was indeed a brilliant lawyer, capable of much good — viz, his successful pro bono efforts in Gideon v. Wainwright. But he was crooked, or if not crooked, insufficiently scrupulous. That powerhouse Washington law firm that he founded, and of which he was once a name partner, refused to take him back when he resigned in disgrace from the Court.

He's a genuinely tragic figure. We don't want tragic figures for the Court, do we?

(32) NickM made the following comment | Oct 4, 2005 12:23:44 PM | Permalink

Beldar - thank you for putting in the time to spell out why Barnett and others attacking Miers are simply wrong.

In response to the person asking whether any other GOP President would have chosen Miers for the Supreme Court, the odds are very good that under any other GOP President, she would have been already appointed to the Fifth Circuit or would have successfully run for the TX Supreme Court. In either of those cases, her name would probably have been popping up along Priscilla Owen's and a few other names of female judges who were being talked about widely in the blogosphere.


(33) big dirigible made the following comment | Oct 4, 2005 12:38:36 PM | Permalink

"If you put unserious and unqualified nominees on the Court, be prepared ... "

... for John Marshall?

Let's see; military man, House of Representatives, Secretary of State ... nary a judgeship nor professorship in sight, though.

The modern trend to go for profs and worn-out judges in the Supreme Court has lead inexorably to ... the Kelo decision, for one. Not such a great trend, perhaps.

(34) Brett made the following comment | Oct 4, 2005 12:50:51 PM | Permalink

Sorry, Beldar, but I think you're wrong, here. You write:

Moreover, the classic meaning of "cronyism" is selecting someone for a position that they're incapable of earning and totally unfit for on their own.

And that is precisely the case here. As to your first criterion, "incapable of earning": but for Ms. Miers' relationship with president Bush, it is absolutely inconceivable that she ever would have been seriously considered for a federal judgeship, let alone a position on the Supreme Court. As to your second criterion, "totally unfit for": there is absolutely nothing about this nominee to recommend her over any member of the stable of legal luminaries who the president could have chosen.

This is the very essence of cronyism. It's disgraceful, and it's disappointing to see you going to the mattresses to defend it.

(35) CGB made the following comment | Oct 4, 2005 12:51:47 PM | Permalink

The criticisms of the Meirs' pick are many:

1. The main criticisim of Meirs is not that she is a practicing lawyer, it is that she is *not* a practicing judge, especially one with constitutional experience.

2. Many conservatives worry mightily that she'll turn out to be another Souter, another stealth appointment made by a Bush president. I just can't bring myself to trust the President that she won't.

3. Shouldn't the Supreme Court be for the best and brightest? If she were a he, his nomination would be laughed at. If we need to practice diversity and appoint a female (why don't we just write into the constitution that this seat must go to a female), there are other, better qualified choices.

(36) Cassandra made the following comment | Oct 4, 2005 12:52:43 PM | Permalink

First of all, re: Kelo, big dirigible just made a point I've made in both posts and comments. The same point Beldar made very well here:

We in private practice tend to spend less time worrying about the meaning of life and the universe and how that guides and informs the evolution of substantive due process under the Constitution. But that's exactly the kind of — forgive, again, my bluntness — metaphysical crap you get in Supreme Court opinions written by lawyers who've spent most of their careers as academics.

I was beginning to think I was the only one willing to give this woman a fair shake. Thanks - great post.

(37) Ernest Brown made the following comment | Oct 4, 2005 12:56:06 PM | Permalink

Godfrey Daniel, the lack of reasoning just keeps coming!

Miers is just the type to vote FOR KELO as an ex-corporation lawyer. The Bush administration LOVED that decision.

(38) Ken Masugi made the following comment | Oct 4, 2005 1:44:47 PM | Permalink

Barnett's premise about Hamilton is wrong:

Barnett's quotation from Federalist 76 about the senate checking “a spirit of favoritism” applies not only to nomination of judges but to all presidential nominations. If author Alexander Hamilton meant this in the way Barnett wants to use it, to reject Miers, President Washington could not have nominated his close confidante for Secretary of Treasury.

See my post at: http://www.claremont.org/localliberty/archives/003882.html

(39) Jeff Durbin made the following comment | Oct 4, 2005 2:50:03 PM | Permalink

Beldar, many of your points are cr*p. Is Miers qualified for the post, 'yes' I suppose - probably as qualified as Clarence Thomas. He's turned out to be quite popular with us right-wingers.

I think the point we critics have is that she is not the most qualified [woman, Texan, candidate, etc. - pick your own]. As for Barnett's point, which you misunderstood, he is absolutely correct that if Miers had not had a close relationship with the President she would not have made it onto any short lists. The President even explicitly stated it himself when he said he has known her for a long time and he can assert that 20 years from now she will not be seduced by the dark side. THAT may be a very reassuring fact in her favor by the way but it doesn't refute the cronyism charge. None of us are saying she is UNQUALIFIED. We are saying that she is not SUFFICIENTLY qualified to be an ideal pick. I agree with the point you (and others) made that having a broader life experience will give her a more valuable perspective with which to decide cases. But that can be a two-edged sword as we saw with O'Connor.

I will not say it was a BAD choice. I will say it is a sub-optimal choice. Coming so soon after the Roberts pick just amplifies the nature of the variance between the two.

(40) Karen A. Wyle made the following comment | Oct 4, 2005 2:50:33 PM | Permalink

All the discussion about Harriet Miers as Bush's "crony" has reminded me of Jean Anouilh's play Becket. I discuss this at Looking Around -- but to summarize, in this play Henry II pushes his close adviser, friend and right-hand man into the post of Archbishop of Canterbury, with the goal of having "my man" in place to neutralize the church's power. He is disappointed in the result.

(41) Chuck Green made the following comment | Oct 4, 2005 3:27:19 PM | Permalink

Suffering siatica! I am astonished that so many conservatives are whining like Democrats. I understand many are disappointed the nominee isn't a pedigreed strict constructionist conservative who would take on the Dems and turn the judiciary hearings into an Armagedon. But there is no reason to turn that disappointment into a trashing of a fine lady who, like it or not, will probably be on the Supreme Court for the next twenty years. I know it is not very soothing to hear this, but be patient and you will see that Meirs will be a fine conservative justice and part of a court that will swing right. At this point, what other option do you have? If you trash her and somehow get Bush's pick defeated, just how much better do you think the next pick would be? Would Bush then give you what you want, or would you be more likely to get the next Anthony Kennedy?

(42) Ernest Brown made the following comment | Oct 4, 2005 6:07:15 PM | Permalink


He already has, that's exactly the point at issue.

(43) Ernest Brown made the following comment | Oct 4, 2005 6:16:27 PM | Permalink

A) It is -precisely- the committment to proper legal principles that is needed in order to overturn garbage like KELO, not a little corporate shill who LOVES the idea of big government takings.

B) Without the moral courage to stick to one's beliefs in the face of general opposition, you can write off any reversal of ROE V. WADE. Moral courage is different from bossing around underlings and being a hatchet-woman.

Thomas might have been splungy, but I think that his confirmation hearings were a "Come to Jesus" moment that revealed the filthy nature of the kind of creeps that Souter & Co. like to suck up to. Any inclination that Thomas might have had to compromise with those Morlocks died with the "high tech lynching."

I don't see Miers that way, especially if the Bush "Abortion is our Real Sacrament" Women supported her for the office. I suspect that they and Reid know the real score.

(44) NCC made the following comment | Oct 4, 2005 6:31:13 PM | Permalink

I have waited all day to get home from work so I could respond to this. First of all, cronyism is not limited to "selecting someone for a position that they're incapable of earning and totally unfit for on their own." It's showing paritiality to your friends in the workplace, regardless of their qualitifications. The reality is that Bush chose to reward his friend over any number of more highly qualified candidates. That is cronyism.

Secondly, your invocation of Lewis Powell is curious on two grounds. First of all, it skips over the history behind his nomination. Nixon promised the South a Supreme Court nominee, and Powell was the fulfillment of that pledge. And, to be sure, he had been a private practitioner. (In addition, by the way, to helping to decipher the German code during WWII.) But Powell was not the first choice. Nixon turned to him only after the failed nominations of two earlier selections, each of whom had judicial experience.

Secondly, are you suggesting that Powell turned out to be a good judge? Pro-Roe, the father of the confused Bakke standard, supposedly regretful of his vote in the Bowers case after his retirement? He seems to me to be the judicial anscestor of O'Connor.

Bush had many better choices than Miers, and failed to make them out of cronyism, cowardice and -- perhaps -- a surrender to quotas. I don't care if Harry Reid, Laura Bush and Karl Rove are happy. Bush betrayed many of us who voted for him.

(45) GregD made the following comment | Oct 4, 2005 7:43:11 PM | Permalink

Ernest Brown,

You are going so over the top you're destroying your own position.

This woman fought as part of the ABA to get them to reverse the edict from the top that the ABA would be pro-Roe, and instead put it to a vote of the members.

Claiming she has no moral courage just shows your own ignorance.

(46) retrofuturistic made the following comment | Oct 4, 2005 7:45:05 PM | Permalink

Two words: Life. Tenure.

This is the one of 9 positions at the top of one of three branches of our government. This is not the place for unqualified crony who is, apparently, a nice person. This one is bad. And the fact that Hugh Hewitt is peeing himself glee over this pick -- as he has done with everything W has ever done -- is of no comfort to me.

Beldar takes Prof. Barnett to task for comparing Miers to Abe Fortas. He then compares her to Lewis Powell. She's even an inferior Lewis Powell. Powell as president of the ABA; Miers was president of a rinky-dink state bar. Powell managed Hunton & Williams, the major firm in the Commonwealth of Virginia. Miers managed a second or third tier Dallas firm.

Why are some of us attacking her for cronyism and ignoring her other "sterling" credentials. Because she's got none! All's she got is the cronyism. It's a thin resume that would (barely) be enough for a circuit judgeship. Just like we can take a chance with a Senator based on the "feeling" that the person will grow into the job, we can do that with a circuit judgeship. Why? Because there's a frickin' Supreme Court sitting over top of the circuit court, there to correct egregious Ninth Circuit-ian erros. This is the Supremes. There's no one over top of them. There is no margin for error.

This really shakes my faith in the President. How he could get something so important so freakin' wrong is just frightening. This is a culmination of a series of really bad decisions in the second term: the highway bill, the Katrina fuding giveaway, Julie What's-Her-Name at the Department Formerly Known as the INS, failing to even try to sell the public on the rightness of the War on Iraq. W's lost it. Miers certainly isn't the reason. But Miers is the worst symptom of the underlying condition thus far.

(47) Cassandra made the following comment | Oct 4, 2005 8:48:35 PM | Permalink

OK, maybe this is a hijack but you just hit a huge nerve.

failing to even try to sell the public on the rightness of the War on Iraq???

Just how do you propose he should do this, when he can hardly get the major networks to break for a major Presidential address?

Please do tell, because I'm just dying to know. And then as soon as he's done, CNN, ABC, and NBC will be on the air telling us he lied to us and what he really "meant" to say and the next morning the papers will edit out anything of value and twist the message.

Just how do you "sell" the public on war when the press is still lying, 3 years later, about your first attempt to "sell" them? (the imminent threat meme). When they lie every day about Wilson and the results of the SSCI investigation in the papers and on TV?

I'm married to a career Marine and I'm sick and tired of the press lying about what we're trying to do over there and about what the President has to say. Once you figure out how he can force a free press to stop distorting what he says, reporting only bad news from Iraq and Afghanistan, and refusing to carry the bulk of the speeches he *does* give all the time to persuade us we're on the right course, maybe I'll be more sympathetic to your argument.

And maybe sometime you can come by a military base and watch the looks on our guys' faces when he walks in the room and listen to the thunderous applause. And then watch the press lie about that the next morning in the paper.

(48) Cedarford made the following comment | Oct 4, 2005 9:42:36 PM | Permalink

Had Harriet been born with a penis and/or hadn't known Dubya, would her odds be any better than finding life on Venus?

60+. Less qualified than hundreds of distinguished female elected officials, jurists, academics, and trial attorneys. Not even exceptional at a 3rd tier law school, and sorry, Beldar, that is not "elitism" but fact - since several tens of thousands of female attorneys have better scholastic records.

Oh, and that is before we get into qualified males with records far superior to Miers.

And ducks the issue of Bush signing on to the idea of accepting the permanent female Goyim seat, 2 gender-split Jewish seats, the black seat, the swarthy Catholic seat, and the lifelong bachelor NE seat.

Cronyism, legal mediocrity, lack of judicial experience, corporate pimping, inc. undistinguished service as a Microsoft "gun for hire".

Ernest Brown writes:

But a hard-working law firm manager, a decent litigator, a tough cookie who gets results--these are not the credentials for our highest court. Nor should it be merely dogged loyalty to a President. What matters is serious intellectual depth, profound understanding of constitutional law, potential greatness. She fails on all three counts. And, with all due respect to a successful private sector attorney, I have to say rather dismally."


BTW, who are Hillary's personal lawyers? The ones that have won her trust and have no paper trail? The next SCOTUS nominees if Ginzburg and Stevens outlive Dubya?

I can hear the ghost of Alexander Hamilton retching at how DC has become the home of cronyism, nepotism despite his best efforts. I can see smilin' Abe retching too. "Vat! You 'tink I was LBJ's crony, but you give a pass to this spinster old shiksta!!" Ms. Myers for ICE, anyone? How about "Brownie", able attorney he was with the Presidents full trust - before he blew his SCOTUS shot with Katrina?

(49) Ernest Brown made the following comment | Oct 4, 2005 10:20:23 PM | Permalink


Thanks, but that was Greg Djerejian's take on it at Belgravia Dispatch:


(50) anon made the following comment | Oct 4, 2005 11:34:55 PM | Permalink

The jury is still out for me on this nomination. However, it does occur to me, with all this talk about "cronyism," that to some extent that's always what it's about, isn't it? Insisting that every Justice have attended one of three specific law schools can be a kind of institutional cronyism -- and, while a person's law school may be one good indicator of competence, it is not the ONLY way to assure excellence (unless your somewhat circular definition of excellence is "attended Yale Law" -- and maybe it blinds us to other possibilities, other sources of excellence. I'm not saying I'm convinced Ms. Meirs is the best choice and I have no idea whether she has a well developed perspective on how to construe the Constitution; however, the preoccupation with ONE particular set of credentials as a measurement (Ivy League law school, Law Review, Supreme Court clerkship) and the tiny crowd that holds them is, it seems to me, a rather cramped view of (and depressing commentary on) human potential. Just one person's fleeting thoughts.

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