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Tuesday, October 04, 2005

Miers versus Roberts

I've read several comments elsewhere to the effect that there's simply "no comparison" between Supreme Court Associate Justice-nominee Harriet Miers and newly-confirmed Chief Justice John G. Roberts, Jr. — the stated or unstated inference being that he "blows her out of the water" in every respect.

But actually, a few comparisons do occur to me that I'd like to share. (As always, I invite my readers to fact-check me and correct in the comments any errors I've made.)

  • Harriet Miers now holds the office (Counsel to the POTUS) that Fred Fielding held in the Reagan Administration. John Roberts was Fred Fielding's subordinate. Were John Roberts to return to his first job in government, he'd now be Harriet Miers' subordinate. The position to which, during the Reagan Administration, John Roberts addressed all those eloquent memoranda on matters of policy — with which many skeptics of his nomination were justifiably impressed — is the same position that Harriet Miers now occupies.

  • Counsel to the POTUS has responsibilities distinct from — and on some topics, equal to or even greater than — those of the Attorney General or the Solicitor General. Counsel to the POTUS reports directly to the President, has no superior but him, and need not obtain the Senate's advice and consent before taking office. John Roberts' top government job before he was confirmed as Chief Justice was as Deputy Solicitor General, an impressive and responsible (but still subordinate) position.

  • Harriet Miers has now successfully vetted a Chief Justice of the United States and many other federal judicial nominees. John Roberts helped prepare some nominees for their Senate testimony in the Reagan Administration, but had little or no role in their selection.

  • Harriet Miers' experience at the trial court level in complicated civil litigation covers many years, and every pretrial, trial, and post-trial aspect of a wide variety and number of cases. With comparatively fewer years in private practice, John Roberts has absolutely no such trial court experience — he's never picked a jury, never tried a case, never even taken a deposition. (And now that he's Chief Justice, he almost certainly never will.)

  • Harriet Miers hasn't argued in the United States Supreme Court, but she's handled several appeals in the lower state and federal courts. It's fair to say she's done more of what Roberts mainly did in practice than he's done of what she mainly did. (If you can follow that grammar.)

  • Harriet Miers has experience inside the executive branches of both the federal government and one of the largest and most populous states. John Roberts' executive branch experience is exclusively federal.

  • Harriet Miers has likewise practiced extensively in both state and federal courts. Almost John Roberts' entire practice has been in federal court (albeit sometimes dealing with state-law issues there).

  • Harriet Miers has run for and served in public office. John Roberts hasn't.

  • John Roberts' service to the legal profession through voluntary and/or elected positions in bar organizations and the like has been significant and commendable, but vastly less than Harriet Miers' at either a local, state, or national level. Indeed, her service to the legal profession has been superior not only to John Roberts', but to that of every other SCOTUS nominee since the late Justice Lewis F. Powell (one of whose key qualifications during his confirmation was asserted to be his service as President of the American Bar Association, before it began to take partisan positions on political subjects).

  • Harriet Miers has met a payroll, had responsibility for over 1000 lawyers and staff in several cities, negotiated and implemented a major law firm merger, and managed the egos of a 400+ lawyer firm. John Roberts has been a partner in, but not the managing partner of, another major law firm. He had significant responsibility, but for much of his time there, he was not even the head of his small and narrowly-focused department.

  • John Roberts is energetic and hardworking, but still has a family life (wife and two small children), which may be a source both of strength and occasional distraction. Harriet Miers, by all accounts, works as long or longer an average day despite being older, and has sacrificed the opportunity for husband and children to her career. Both, happily (and as they would no doubt have it), can be predicted to work hard for their country in some capacity for, in all probability, the rest of their lives.


My regular readers will recognize that I'm not knocking John Roberts in these comparisons. I think he is absolutely fabulous, with other qualities that vastly overcome any gaps in his background and experience. But as it happens — and I don't think this is a coincidence — Harriet Miers' experience fills some of those gaps quite handily, and vice versa. I emphatically do not agree that Chief Justice Roberts' credentials, terrific though they be, are the only sort of credentials that can qualify a person for service on the Supreme Court. And I suspect he'd be among the first to agree with that proposition.

Posted by Beldar at 11:01 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Miers versus Roberts and sent a trackback ping are listed here:

» Coalition of the Chillin' from Musing Minds

Tracked on Oct 4, 2005 3:36:52 PM

» Count on Beldar.... from Media Lies

Tracked on Oct 4, 2005 8:18:15 PM

» Beldar Compares Miers With Roberts from Sue Bob's Diary

Tracked on Oct 4, 2005 8:32:21 PM

» Driving Miss Miers from Cafe Oregano

Tracked on Oct 4, 2005 8:50:07 PM

» Conservatives should give Miers a closer look from Judicious Asininity

Tracked on Oct 4, 2005 9:01:23 PM

» Cronyism debate - the wrong question? from blogs for industry

Tracked on Oct 5, 2005 2:44:51 AM

» Harriet Miers Nomination: Fish or Cut Bait from Searchlight Crusade

Tracked on Oct 5, 2005 3:49:37 PM


(1) Drugstore Cowgirl made the following comment | Oct 4, 2005 12:02:35 PM | Permalink

This has been an extremely helpful discussion. Just read Hindrockets concerns at Power Line and you have addressed them all. I'm feeling much more confident in this appointment.

(2) Simon Oliver Lockwood made the following comment | Oct 4, 2005 1:03:19 PM | Permalink


Very interesting set of points of comparison. But I don't understand why some of them are relevant to a seat on the Supreme Court.

Why is the experience of having run for and served on the City Council a positive?

Why would the skill set necessary to manage a 400 lawyer firm be of any connection to being a good Supreme Court justice?

Who cares if she was active in the Bar Association? Why should non-lawyers care about her service to the legal profession?

Thanks for posting about this issue.

(3) Simon (not Oliver Lockwood) made the following comment | Oct 4, 2005 1:17:35 PM | Permalink


In response to your points above:

1) The transitive property does not hold across a twenty-five year gap in time. John Roberts, had he been appointed to the GWB administration instead of to the bench, would clearly have come in no lower than SG, if not AG or White House counsel. Was Miers doing anything 25 years ago remotely similar to the work Roberts did for Fred Fielding?

2) You still have not explained how the responsibilities of WHC are “greater than” those of the AG or SG, especially relating to the sorts of issues faced by judges.

3) Re her work vetting other nominees: Rove did the same thing, I’m sure. Does that make him qualified to sit on the Supreme Court?

4) Point to Miers.

5) Although it is true that Miers has played more frequently on Roberts turf than he did on hers, the order of magnitude of their respective accomplishment on that turf brooks no comparison.

6) Point to Miers, if you think running the Texas Gambling Commission provides experience relevant to issues faced by the SCOTUS.

7) Point to Miers.

8) True, but so what? Two years on the Dallas City Council hardly counts for the sort of “public experience” that Justices Warren or Black had.

9) True, but so what?

10) True but irrelevant. If these sorts of issues were important we would find a way to appoint Jeff Immelt to the Court. The relationship between managing a firm (large by law standards but small in the “real world”) and judging is simply unclear to me.

11) This may be the first time I’ve ever seen someone of conservative persuasion criticize someone for having a family.

In sum: yes, it would be nice if Roberts would have had experience in state courts or with trials, or both, before he was appointed to the Bench. But otherwise I think your comparisons fail to hold on anything relevant, and in the case of your first one (dealing with White House counsel’s office), I think they are downright misleading.

(4) made the following comment | Oct 4, 2005 1:22:00 PM | Permalink

Re Roberts agreeing with you:

A partner at a top DC firm think a middling Texas firm's managing partner his equal in any sense? Ha.

An appellate lawyer think a trial lawyer as well qualified to be an appellate judge? Ha.

A Harvard man think that SMU appropriately qualifies one for the Supreme Court? Hahahahaha.

(5) Deborah made the following comment | Oct 4, 2005 1:25:09 PM | Permalink

Excellent post, Beldar. It's analysis like this and others that convince me you are an A++ trial lawyer. (That, and you never give up!)

I am a female and a lawyer who once practiced in a large law firm. I also have a family. One of the things I always doubted about Justice Sandra Day O'Connor was her repeated statement that family came first. I can tell you from personal experience, no way. The demands of a law firm practice take precedence, and the lawyer's family comes in second like the proverbial doctor's family.

So while I'm still not convinced that Harriet Miers was the best conservative candidate GWB could have nominated, I applaud her dedication to her legal career. The fact is, women can't have it all if "all" includes a high-powered career.

And to Simon Oliver Lockwood: I hope Beldar will answer your questions in detail, but in general I believe that Supreme Court Justices (and the opinions they issue) benefit from real world experience.

(6) Beldar made the following comment | Oct 4, 2005 1:50:14 PM | Permalink

Simon, the importance of the Counsel to the POTUS varies according to the issue and the circumstances. On separation of powers/checks and balances issues, just for example, that office holder is THE go-to guy (go-to person, I guess). But to get an idea of the kinds of issues that job deals with, John Roberts' memos to Fielding are useful. By no means all of those issues ended up coming before the Supreme Court. But as a position of responsibility within the federal government, it's a higher position than any that John Roberts ever held, or than most lawyers ever reach. Was it you or someone else who pointed out that Lloyd Cutler held that position not once, but twice? Cutler could have had a seat of the Court from any of the last three Democratic Presidents, and would have been confirmed unanimously.

Re the city council and bar service: These are considered indicia of good and responsible character, and the latter is a way, perhaps the key way, to demonstrate leadership within the profession. I again note that Justice Powell's ABA service was the key credential offered in support of his nomination, portrayed as being of greater significance even than his long and distinguished career as a practicing lawyer in a regionally prominent firm.

Re vetting: Rove isn't a lawyer, and whether he grasps more than just the political side, I dunno. But just as Dubya learned a lot about what kind of Veep Cheney would make from Cheney's vetting of Veep candidates, and Cheney thought and brainstormed a lot about the Veep position as a result of doing that vetting, I'd suggest that Ms. Miers' involvement in that process is likely to have been useful both to her and to Dubya.

I'm not criticizing anyone for having a family. But arguably, she's more professionally driven than he. (And he's awfully driven.)

I do indeed think that being counsel to the governor of a major state, plus cleaning out a scandal-ridden quasi-state agency upon which much of the state's public school financing depends, are both significant accomplishments. The Justice whom Ms. Miers has been nominated to replace had a similar breadth of state experience, and it was almost certainly relevant to her involvement in the federalism issues that came before her.

Jeff Immelt's company (GE) hired Harriet Miers' firm in the huge lender liability case I mentioned in another post. And if only to rebut charges by those who claim Ms. Miers would be "dazzled" by other Justices, it's useful to know that she's dealt with (and supervised) many lawyers with powerful egos, successfully and for a long time. Finally, to repeat a point I made yesterday: Law firms don't pick wimps to be managing partner. They pick the lawyer who has the most universal and deepest respect within the firm, the most clout, the best problem-solving and negotiating skills, the best business judgment, etc.

You presume that arguing cases before the Supreme Court is the highest and greatest goal of any practitioner. It's terrific, sure; and John Roberts has been involved in, what, 39 of them, was it, either for a party or as amicus? I don't know the exact numbers, obviously, but I'd make a well-educated estimate that Harriet Miers has probably handled several thousand significant litigation matters over the length of her career; some were routine, but many weren't. Nobody currently on the Court has that perspective; not many lawyers in America do.

(7) Beldar made the following comment | Oct 4, 2005 1:59:44 PM | Permalink

To my nameless commenter above: As a non-Ivy League Texas trial lawyer, I've had considerable dealings with lawyers from Washington or New York with credentials similar to Chief Justice Roberts. Some are jerks and bigots. My experience, however, has been that the best of them have wholly transcended such pettiness. My sense of Chief Justice Roberts in particular, after watching his entire confirmation hearing, is that at a minimum, he would certainly say he agrees with me. But I do genuinely think he'd agree privately and sincerely that his own credentials aren't the only ones that may be adequate. In particular, for instance, I noted his efforts (rather thin ones, but he made some) to broaden his own professional experience to include at least consultation on some of his firm's trial court matters, and the relish with which he described visiting his clients. I think he's got a very keen sense of his own worth, but that includes a keen sense of where the gaps are in his background. And there are some.

(8) Charles made the following comment | Oct 4, 2005 2:10:12 PM | Permalink


I can't believe you actually took the time to respond to the anon. poster, but, good word...

Thanks for your thoughts. They are measured and reasonable... something that's not exactly at surplus in all of this.

(9) ed made the following comment | Oct 4, 2005 2:11:18 PM | Permalink


And yet I don't see anything in that post that describes her as a conservative.

Sorry Beldar but I'm absolutely opposed to her nomination. She got nominated over the heads of far more qualified people who have been in the trenches, and this has happened again and again and again. And it must stop.

The Bush administration and the current GOP leadership has done nothing but *punish* people for being conservative.

Which means this conservative has stopped supporting Bush and the GOP. As far as I'm concerned, they can go to hell.

(10) cathyf made the following comment | Oct 4, 2005 2:11:48 PM | Permalink

My dad is an economist, and worked for many years for an oil company. Several times he has made the point that the lawyers in the oil company knew a whole lot of economics that they didn't even realize. My dad would look at some contract of some kind that the company had negotiated, and there would be some bit that stuck out as being kind of strange. So after awhile he found that he could go down the the legal department and find one of the lawyers who was involved, and get the story. And it would be some subtle and profound economic problem, and often the contract spec was a rather elegant solution to it. One of those things you'd never have thought about until somebody else brought it up.

I saw someone (Bainbridge perhaps?) make the point several months ago that one of the most glaring holes in the collective experience of the Supremes is with the nitty-gritty of business law, contracts and corporate governence. This seems to me to be a pretty big problem -- the political perspective tends to frame things as absolute struggles for power or authority, when in real life many of these struggles are about one party trying to get stuff from another party without paying for it, and everyone can be a winner if the correct sum of money flows the right way.

In the post-Kelo denouement it has become much more blatent that the whole case was about some private developers using their city government cronies to steal money from the Kelo property holders. All along I've been scratching my head trying to figure out why the Supremes couldn't see this pretty obvious fact. I see this as potentially Miers' biggest strength -- she's spent decades sorting out people who were going to get ripped off, or who got caught trying to rip off other people, or who just got blindsided by unforseen circumstances and were trying to sort out an equitable distribution of unexpected expenses or profits that the contract didn't specify.

Everybody who is making these snobby little digs about constitutional law and separation of powers and other naval-gazing intramural government fights is somehow missing that the big overarching goal of the constitution is to provide The Rule of Law. Which is the fundamental basis for our prosperity. If Miers is going to be the one person on the court who has lots of experience in this, well I think that's a Really Good Thing.

cathy :-)

(11) Lee Keller King made the following comment | Oct 4, 2005 2:30:37 PM | Permalink


As a sometimes trial attorney, I am happy to see that the new nominee is not another judge/academic. Considering Justice O'Connor's background, the nomination of Harriet Miers makes sense. Both had real-world experiences as a lawyer and as an elected official. The Supreme Court needs more people who have actually PRACTICED law, as opposed to those who have only written about it.

As for the supposed superiority of Ivy League lawyers that some have mentioned (or at least, inferred), I think it is bullXXXX. The fact that you got into Harvard or Yale, and graduated, does not make you a good, much less great, attorney. Anyone who has actually tried cases knows that where you went to school has less to do with your qualifications as an attorney than who you are and what you've done since. (Personally, I like opposing counsel to think they were better than me. I prefer to be UNDERestimated by my opponents).

(South Texas Grad, for what its worth)

(12) ech made the following comment | Oct 4, 2005 2:49:25 PM | Permalink

IANAL, but I'll take a crack at these from the perspective of someone in the engineering field who has had deep discussions of the law with someone admitted to the Supreme Court bar:
"Why is the experience of having run for and served on the City Council a positive?"

It's experience with the Legislative branch of government. Many of the issues that come before the SCOTUS are governmental disputes and a sense of what the legislative branch actually does (as opposed to civics book teachings) and how it operates gives insight. Combined with her Executive branch service at the state and federal level, she's got a good breadth of practical experience in governing. As an aside, the Dallas City Council is about as fractious a group as you can get.

"Why would the skill set necessary to manage a 400 lawyer firm be of any connection to being a good Supreme Court justice?"

Again, it's experience in dealing with the issues that come up before the court in areas such as: employment, EEOC/ADA concerns, contracts, etc. Also, it shows she has the skills to mediate among a bunch of strong egos.

"Who cares if she was active in the Bar Association? Why should non-lawyers care about her service to the legal profession?"

It shows she cares about her profession as more than a meal ticket. My father was active in his (medical) speciality society. It was a thankless, costly excercise that he was very proud of. I estimate that it easily cost him 20-30% of his income during his peak earning years.

(13) Beldar made the following comment | Oct 4, 2005 2:49:25 PM | Permalink

Another comparison that occurs to me, which again highlights the complementary nature of Ms. Miers' credentials:

  • Harriet Miers spent two years working as a law clerk to a federal trial judge, during which she presumably gained important insights into the fundamental level of the federal judiciary — a sort of clerkship exposure that no current member of the Supreme Court has ever had. John Roberts presumably gained comparable insights from his one-year clerkships with Judge Friendly on the Second Circuit and (then-)Justice Rehnquist on the Supreme Court, but other members already on the Court had already brought with them their own experiences from those same two clerkship levels.

One can't dispute that a Supreme Court clerkship is a meaningful qualification for a nominee to have. Many will say "pish posh!" to my suggestion that a district court clerkship is as valuable or more valuable, and in the abstract, I'd probably agree with them.

But in the real world as it now exists, nobody on the Court has that district court experience: not as a judge, not as a clerk, not much even as a lawyer. If you took a poll of the federal judiciary, my strong hunch is that the federal trial judges — who are, numerically, the backbone of the system — would very much like to see one of their own on the Supreme Court bench, and failing that, would be glad to see someone with a federal district court clerkship in her past join the Justices who clerked for the Supreme Court as young lawyers. If you'd taken that poll shortly after the Supremes turned the entirety of sentencing law on its ear recently, you might even have gotten a unanimous result; I know a lot of federal district judges were some kind of steamed about how the Court went about that, and thought it the classic example of the "Cloud Coo-Coo Land" problem that afflicts the current Court.

(14) hunter made the following comment | Oct 4, 2005 3:49:10 PM | Permalink

The subtle wisdom of nominating a woman with real world experience, not an academician or theorist, but someone who is actually running a large law firm and trying real cases is profound. We have an ACLU muscle, specializing in imposing their agenda on us, we have some people out of the 'real world' for decades, we have Roberts, who only operated at the pristine level of appeals. With the emotional blowout going on right now, as the drumbeat against W seems to be setting the context for every decision he makes, it seems that someone who can getby without a record easily attacked is a very wise choice.
She promises to strictly apply the constitution and to not legislate from the bench.
Would she actually toss out the execerable Roe v Wade and let the states deal with it as they should?
Will she vote to properly limit property condemnation?
I don't know. But if we want more Scalia's we need more Republicans in Congress.
And we need to stay loyal to our President. He is clearly deserving of it and has been loyal to us.

(15) Dave B. Rowzey made the following comment | Oct 4, 2005 4:34:04 PM | Permalink

Most conservatives don't want "people who do things" on the high court. Said another way, conservatives don't want activist justices.

Experts of every stripe today constantly point out how much Miers is a "do-er." In seems she was an activist Assistant Chief of Staff or activist chief counsel to POTUS.

It is great in those jobs to be activist. But can she change?

The Supreme Court doe not need someone who likes to do things. It needs someone who likes to think things out.

Is Meirs the best in the country in thinking through a legal problem?

Of course not.

Like Jimmy Carter before him, George Bush did not come through when confronted with the plea: "Why not the best?"

He had a change to swing for the fences. GW put down a bunt instead.

(16) Mike made the following comment | Oct 4, 2005 4:34:26 PM | Permalink

At the end of the day, Bush still picked his personal attorney as a SCOTUS justice. He and his staff sifted through all the candidates, culled from all the lawyers in America, and settled upon . . . his personal attorney.

(17) Mike made the following comment | Oct 4, 2005 5:00:25 PM | Permalink

Hi Beldar,

I am comforted by what you have said about Ms. Miers. Still, I recall a Vonnegut book in which Kilgore Trout runs after Vonnegut begging him to make him young. I certainly hope that she has been out running with Bush, and has a similar resting pulse rate. I probably read it here, but it appears that she has good genes (an old mother). Maybe her age isn't the issue that I thought that it was. I suppose that lawyers are like witches in Oz; some are good, and some need a house dropped on them! Thanks for being a useful "good" witch. :) At least I did not advocate killing all lawyers. I would miss you, Hugh, and the Powerline guys for sure. No really! :)


P.S. OK, this is more like something I would post at the Ace of Spades. Still, it seems that people are a bit too tense about this nomination. Hopefully lame jokes are good enough to lighten the mood. :)

P.P.S. I am never a pick-up-the-ball-and-leave sort. I do not believe in such self-destructive behavior. When allowed as an independent to vote in a primary, I may try sending a message; but when the real vote rolls around, I take my voting franchise very seriously.

P.P.P.S. I still think that we left a lot of conservative judicial talent on the table. I asked in a previous post whether Bush will get another chance. Anyone know if that is likely? I am not looking to start a dead pool, just wondering if some of the older justices might be looking to retire. I suppose that if we defeat Hillary (speaking of lawyers and witches :) ), some of the older lefties might throw in the towel. I am just wondering how likely this will be Bush's last chance to nominate a person for the Supreme Court.

(18) zt made the following comment | Oct 4, 2005 5:12:55 PM | Permalink

I don't know who's right about Miers. But I do know that if I ever need a lawyer in Texas, Beldar's my first choice.

(19) ppaul made the following comment | Oct 4, 2005 5:20:33 PM | Permalink

What do you know that the rest of us don't re:

"Harriet Miers...has sacrificed the opportunity for husband and children to her career...." ?

Not all women want a husband and children...it might have been the most natural thing in the world to her to go about her life sans husband and kids.

(20) molly bloom made the following comment | Oct 4, 2005 5:29:52 PM | Permalink

RE: Kelo/ eminent domain. I'm not real thrilled with what happened in Kelo (the city, not the case) and would be voting those responsible out of office.

That said, I think you will find that the Court knew perfectly well what may have been going on in the Kelo case (certainly J. Stevens has stated as much in a recent speech). However, to subsitute the court's judgment for the elected factfinding body would be what is known as JUDICIAL ACTIVISM (which I assume is frowned upon in these here blog parts). The court correctly pointed out that proper forum was the ballot box. The courts (even the Supreme Court) are not set up to make economic fact finding determinations, nor should they. That is something which legislatures, who must face voters after their decisions, are better equiped to do. Otherwise the court would be simply subsituting its economic judgment for the legislature. Who know where that might lead? It certainly would be undemocratic. Don't like the result in Kelo? Call your legislator and demand they pass a law against using eminint domain for private purposes (course, I seem to recall a fairly famous case in Arlington Texas about a ball park and the surrounding land being condmened for private development where the developes turned out to be the partners in the baseball team, but that's was different, I 'm sure).

Also, someone stated something upthread about private developers using their city government cronies to steal money from the Kelo property holders.. What was taken was property and there is and was a requirement for just compensation for the taking of that propety. So "Stealing" is not technically correct. Just compensation does require an evidentary hearing as to the just value of the property taken and both sides get to put on evidence in open court.

(21) made the following comment | Oct 4, 2005 5:41:26 PM | Permalink

Beldar, generally insightful comments. A couple responses:

1. Where she went to school: At Miers' stage of the game, I do not believe it is a a very significant indicator of her abilities. I went to a regional law school 12 years ago and have practiced as a commercial litigator since. I have often been opposed by lawyers who attended "national" schools. On average, they have not impressed me as any better than others I've litigated against who went to lesser known schools. In fact, I often get an attitude of false security that proves to be a disadvantage to them. At 60 years old, what you've done since law school has a much more significant bearing on your abilities as a lawyer and potential judge. (Regardless, my understanding is that SMU is a very competent law school.)

2. One factor you omitted that I do think is important: Whether she has studied the Constitution and constitutional jurisprudence. I do think a good working knowledge of the contents, structure, and philosophical underpinnings of the Constitution and our system of government, as well as the major cases decided by the Court, is important for the job. Don't know whether she has this knowledge. She may have picked some of it up as White House Counsel, but that alone may not be solid enough.

(22) Tom Grey - Liberty Dad made the following comment | Oct 4, 2005 6:07:23 PM | Permalink

Great job.
On my blog I copy you a bit:

"Common Sense and Goodness, not a Pointy Head".

I like Marvin Olasky's links about Miers long time church service.

Yes on Harriet.

(23) bill made the following comment | Oct 4, 2005 7:21:40 PM | Permalink

From a lay perspective I see in Miers neither the presence of command nor the force of argument -- she will just sit in the corner and write stuff. At best she will write conservative stuff, at worst, no one will care what she writes.

(24) Simon made the following comment | Oct 4, 2005 7:55:17 PM | Permalink


I've tried to sort this into sections.

1. White House Counsels

Your reference to Cutler is instructive. He could have been appointed by any number of presidents, and would have cruised to confirmation. Can you say the same thing about Miers? Hardly. No other president – not even this president’s father – would have considered her. (In fairness to Miers, I think that Cutler and Mikva are probably the only two White House counsels worthy of such confidence.)

As for Miers advantage over Roberts – do you think that he would have accepted the job? Are you suggesting that he is somehow unqualified to hold it?

And I continue to fail to see the relevance of vetting someone to ultimate ability to serve the job being filled. After all, the idea that the person heading the search process inevitably ends up as the one most qualified for the position is a relatively recent invention of G.W. Bush. Besides, aren’t we consistently told by both the nominees and the Administration that substantive legal issues aren’t discussed? I know that if I want to get a sense of a lawyer’s talent I don’t ask him or her about abstractions like “strict construction” or “constitutional fidelity” or “originalism” or “constitutional interpretation” (even though I’m quite confident of my ability to evaluate someone’s answers to such issues). Instead, I ask about a particular case or set of cases. Something the Administration professes not to do.

2. Other Service
Don’t get me wrong – I’d welcome nominees with executive and legislative branch experiences, up to and including elected office. So to some extent, I’m quite happy Miers served on the city council, &tc. But her experience is hardly extensive (two years on the city council, six years, essentially part-time, at the commission, 5 years in the White House).

3. Misc. Professional
With all respect, a $125MM case, while significant, is hardly “bet the company” sort of litigation for a company GE’s size. And while I agree that law firms usually (not always – sometimes it goes to the person with the biggest book) picks a formidable lawyer as managing partner, that service really doesn’t distinguish her from the hundreds of other lawyers who have held similar positions at firms of equal or greater complexity. So, too, with your claim that she warrants appointment because she’s handled several thousand complex litigation matters. I could make that same statement about a thousand other lawyers. What makes her different?

4. General Conclusion
As I said, or tried to say, in one of my original comments, I think diversity on the Court is a good thing. I wish we the justices had more experience in practice, more experience at the district court level, more experience among elected officials, and even more experience in or with state courts.

By their nature such categories are filled with a larger number and variety of people than the traditional federal circuit path. All the more reason, though, for nominees from those categories to enjoy a strong and broad reputation[1] -- like, what I had suggested before, the possibility of appointment from different presidents. The burden of proof is higher for nominees from these backgrounds, especially those with little or no public profile (no previous confirmations, &tc).

Ultimately, when I think of practioners worthy of direct appointment to the Court I think of people like Bob Fiske and Lloyd Cutler. (Or, for the Texans in the group, perhaps Bob Strauss.) From what I’ve learned about her thus far, Miers just doesn’t measure up.

[1] The proof of this is in the puddin’, so to speak. If Miers truly enjoyed the sort of reputation that a nominee to the Court ought to, then the outcry we’ve seen – coming mostly from persons you would have thought supportive, like David Frum and George Will -- over the last 36 hours never would have happened.

(25) Deborah made the following comment | Oct 4, 2005 8:45:49 PM | Permalink

I want to be supportive of the nominee and GWB, I really do, but it's hard. I've seen too many politically connected lawyers get plum judicial positions while the truly qualified, hard-working, in the trenches lawyers aren't even considered because they've been too busy working to make those political connections. Maybe Harriet Miers is an "in the trenches" lawyer that is finally getting a shot at a judgeship, but it seems like another case of political connections to me. The selection of now Chief Justice John Roberts, on the other hand, seemed to be based on merit.

(26) Peggy made the following comment | Oct 4, 2005 9:08:57 PM | Permalink

Belder, Your posts on Miers are an island of sanity in a sea of perplexing hysteria.

Thank you!

(27) Sydney Carton made the following comment | Oct 4, 2005 9:15:25 PM | Permalink

None of your points has any relevance whatsoever. The true test is in WRITING, which is the means by which Supreme Court justices communicate to the People their interpretation of the Constitution.

We knew that Roberts was a strong writer, especially since he was Rhenquist's clerk and apprentice.

There is no evidence that Miers can write at all. Moreover, there is no evidence that, 5 years after Bush is out of office, she will not stray and begin to meander in her interpretation of the Constitution, because she has FAILED TO ENGAGE THE CONSTITUTION AT ALL in her professional life, and to build up the talent and the training to have a consistent, originalist foundation in jurisprudence.

Miers should be defeated or withdrawn. Her nomination is a disaster and a slap in the face to every conservative who worked hard to elect a majority of Republicans and the President precisely so outspoken conservative judges would be appointed. This is an insult to every conservative in this country who should rightly be outraged as such an egregious pick.

(28) Beldar made the following comment | Oct 4, 2005 9:20:38 PM | Permalink

Deborah, I definitely hear where you're coming from. I, too, am well acquainted with the species lawyerus politico. A good example, who's also a heckuva smart guy and a fine lawyer, is Houston Mayor Bill White, who was a year ahead of me on the TLR. Susman Godfrey, Deputy Sec'y of Energy for Clinton, now Mayor, someday a candidate for governor or senator I'm sure. I have profound respect and considerable personal affection for him; I've dined in his home and he once tried to hire me. I voted for him for Mayor and I support him in that office. But I'd fight until my voice was broken and my fingernails were ragged and bloody to keep him off the Supreme Court! (And that's another appointed office he might well be considered for the next time there's a Democratic President!)

If Ms. Miers' role had been as counsel for the RNC, for example, or for Bush-Cheney04; if she were involved in counting convention delegates and Congressional votes and lobbying on the Hill; if she were handing out pork and making threats to keep wandering party members in line — I'd be concerned that her appointment was indeed a case of "political connections." All Presidents make some of those, and Dubya has too.

But I don't think he's made any judicial nominations of that sort, neither as President nor as Governor of Texas. And Ms. Miers has been in the trenches, by all reports from 5:00 a.m. to 11:00 p.m. on a fairly regular basis. I don't think she's been dashing around in Air Force 2, eating shrimp cocktails and chatting up campaign contributions. The POTUS -- whoever's in that office -- needs a lawyer, not in his personal capacity, but in his official one. You know the old "work-horse" versus "show-horse" distinction, I'm sure; it's one that's politically incorrect to ever make when women are involved, I guess. But the press conference announcing her nomination was the first "show-horse session" Harriet Miers has had in all the time she's worked with Dubya! What does that tell ya?

Simon, you're a great debater, but I'm running out of steam. But briefly (for me): (1) Of course Roberts would have made a fine White House Counsel. Given that he was a Bush-41 nominee to the DC Circuit, though, and probably also his personal preferences and ambitions, I suspect he's always been seen for a judicial role. (2) You've gotta look at the whole package: neither the practicing courtroom lawyer, managing partner, bar leadership, nor public service by itself would be so remarkable. But all of them? Remarkable; unique. (3) You've gotta look at what she brings that's lacking now: trial court experience, knowledge of business and commercial law, a life lived outside the Beltway, etc. (And no, that case wasn't bet the company, but I know for a fact that it had Jack Welch's personal attention, along with the then-CEOs of Pru and NEM. It was far and away the biggest litigation case any of them had going on in Texas for at least several years. Wish I could say more, great war stories from that case.) (4) I think a lot of the outcry is from folks who aren't acquainted with the true facts (e.g., those on the Corner yesterday who believed in good faith that she was a "3rd rate lawyer" from an "undistinguished firm") and/or don't yet have their minds wrapped around the concept of a nominee coming from a career path that's mainly been in private practice. They keep moaning "But where are the law review articles?" They'll get over that.

(29) Beldar made the following comment | Oct 4, 2005 9:23:27 PM | Permalink

Sydney, your criteria would have excluded about 4/5ths of the Justices and Chief Justices who've served on the Court during the history of the Republic.

I give you high marks for passion. But try to be more imaginative. Practicing lawyers aren't retarded; academics sometimes have fleas.

(30) David Walser made the following comment | Oct 4, 2005 10:19:22 PM | Permalink

Sydney - Very few of the current Justices are great writers. How many memorable opinions were penned by Rehnquist?

Miers was the articles editor of her schools top law review -- which indicates that she could write in college. As a lawyer, Miers passed the true and toughest test of a writer: Her briefs were found persuasive by the courts. While it would be nice if every opinion handed down from the courts were clearly written. It's far more important (for the client) that their lawyer's brief is persuasive. She could not have been a successful trial/appellate attorney without being a good, competent, writer.

(31) Joan made the following comment | Oct 4, 2005 11:31:15 PM | Permalink

IANAL, either, but I was just going to jump in here and make the point that David just made: there's no way Miers could've had the successful career she has had without being an excellent writer. It's weird that people don't understand that lawyers spend most of their time writing.

(32) Sydney Carton made the following comment | Oct 4, 2005 11:38:03 PM | Permalink


My criteria is effective writing with an originalist perspective on jurisprudence. Are you suggesting that 4/5ths of the Justices have never had that? For nearly 150 years, the Court was originalist. The best justices, like Learned Hand, Cardozo and Scalia, write succintly and well. Miers, if she is truly in the mold of Scalia, would have similar qualities.


Just because Miers might have won for her clients doesn't mean she can write. Judges are supposed to properly apply the law irrespective if a lawyer submits a bad brief. I don't know if her briefs were stellar or not, but in any event they probably do not evidence what George Will properly calls a "talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest" regarding Constitutional jurisprudence.

(33) Deborah made the following comment | Oct 5, 2005 12:07:18 AM | Permalink

No one has worked harder or more admirably in support of GWB's nomination of Harriet Miers than you, Beldar. You have convinced me that she is an acceptable nominee, but I cannot accept that Miers' nomination was a good move on GWB's part.

I believe that one of the fundamental differences between Democrats and Republicans is how willing they are to set forth their agendas for public consumption. In general, Democrats want the American public to "trust us to take care of you", while Republicans set forth their beliefs and hope the public will agree and support them. (I understand that both groups play political games, but on the big issues, Democrats are the party that promise to take care of us, and Republicans are the party that want us to take care of ourselves.) To me, Supreme Court nominations are big issues and I expect a Republican President to boldly nominate a person whose conservative beliefs are clear. From a political standpoint, we risk being Borked or Thomased and we may lose the battle. But when we set forth a clear statement of what we believe in as conservatives, we increase the chance that we will win the war of public opinion.

I think it was time to offer a nominee with exemplary qualifications who clearly embraced conservative principles. This was important not only for the Republican base but also for the public at large. It was an opportunity to say what Republicans believe in, but apparently the best we can do is to say "trust us".

(34) Jeffrey Lee Tatum made the following comment | Oct 5, 2005 10:19:45 AM | Permalink

The only way Democrats think they win a fight is if the other person comes out Bloody. It will be hard the bleed this Lady as she has no paper trail. You don't have to be a Guinness to interpret the law. Harriet Miers is much smarter than anyone on this Blog. Not real hard to do.
What about Bush's legacy? I don't think he really cares about his legacy. Abraham Lincoln was one of the most hated living Presidents ever. What is his legacy? Bill Clinton is worried about his legacy. He should be. The only living EX-President to be impeached. That's why you see him anytime someone will put a camera in his face. Plus he still has his eye on the Big Prize. Getting Hillary in the White House. Well, not her him and then he can fly around and do just what he used to do. Not much. George W. Bush will disappear in the sunset and doesn't really care what any of you think of him. Don't get me wrong. He hopes you like him, but if not O' well. See ya'll on the ranch. I will promise you one thing he will not be a Jimmy Carter and condemn a sitting President. Even if it's Hillary. "God forbid."
There are no credentials to be on the "SUPREME COURT". You don't even have to be a Lawyer. Bush is looking Dumb again. Well, should I say Sly as a Fox. I think it's funny that every Lib think Bush is a the village idiot, but always seems to get just what he wants. Hell I'm glad she's not a Ivy League Lawyer. We need people on the courts to interpret the Law. Not to think what should I do on "This Case." Read the Damn Law and do your job. Read the case, read the Law and make the right decision. The only credentials you need to be on the "SUPREME COURT" common since.
Ruth Bader Ginsburg thinks 12 years old is old enough to consent to Sex. Zero common since in my opinion. I think she's sick, but only 3 Senator voted nay on her nomination. God forbid we have another Christian on the court. Harriet Miers is a Born Again Christian and I think that's just what the court needs. Here's Bush again "Sly as a Fox." Hard to throw a Bomb at nothing. Have a nice day!

(35) David Walser made the following comment | Oct 5, 2005 7:00:38 PM | Permalink

Simon - You are right, judges are supposed to properly apply the law despite any short comings in the briefs provided by the litigants. That's not to say the quality of the briefs don't matter, is it? A good attorney wins more than his or her fair share of close decisions. Much of that has to do with the quality of the argument used to persuade the court. Meirs has a record of winning more than her fair share of close cases. Either she has just been lucky, or she's been effective in persuading the courts by what she's written.

This does not mean what she writes is fun or enjoyable to read. Indeed, her writing may be dry as dust. Her success says, dry or not, her writing gets the job done. We cannot ask more of a nominee (from a writing standpoint). The nominee can either communicate complex legal concepts in writing or he or she cannot. Meirs could not have succeeded this far without an ability to write that should suffice for service on the court. She's not being nominated for novelist in chief.

(36) Ed Nutter made the following comment | Oct 5, 2005 10:45:07 PM | Permalink

Note to Mike who wrote:
"At the end of the day, Bush still picked his personal attorney as a SCOTUS justice. He and his staff sifted through all the candidates, culled from all the lawyers in America, and settled upon . . . his personal attorney."

President Bush had his staff sift through all the candidates, culled from all the lawyers in America, and settled upon Harriet Miers as his personal attorney.

At the end of the day...having worked with her for five years, he has decided she's the best person to replace Sandra O'Conner.

(37) rds made the following comment | Oct 7, 2005 2:38:12 PM | Permalink

You are doing a marvelous job of defending Miers as a potential justice. I think her selection is indefensible given the alternatives, but I have hope at her hearings she'll demonstrate a deep understanding of Constitutional law and a coherent and correct approach to the Constitution, and that she'll be a good, competent justice who might persuade somebody of something someday. Keep it up -- don't get discouraged by others' incurable dispondency.

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