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Wednesday, October 05, 2005

Professoriat to Dubya: Shut up and do what we tell you, you're just the President

If you have any doubt that much of the opposition to the Miers nomination is generated by reflexive elitism, I humbly submit these comments by Randy Barnett, the Austin B. Fletcher Professor of Law at Boston University School of Law, whose anti-Miers WSJ op-ed I criticized on similar grounds earlier this week:

I do not expect any president to know enough about judicial philosophy to pick judges on his own. I expect him or her, however, to appoint advisers who do know about such matters and follow their advice.

Catch your breath, and then re-read that closely. "Any president," sez the good professor. I suppose that would include, for example, Duke Law grad Richard Nixon, Yale Law grad Jerry Ford, Yale Law grad Bill Clinton, and all of our 23 other lawyer-presidents (including that Lincoln fellow, who didn't go to law school at all!).

If you believe the world should be run by philosopher-kings, by experts, by PhDs and law professors (mere J.D. degrees don't qualify, it seems, and don't make me laugh by suggesting that a mere voter's opinion might count); if you believe that the rest of us are just too damn dumb to be trusted with pointy objects, puddles of water deeper than 1/2 inch, or judicial nominees — well then, this makes perfect sense.

However, if that's your view, then you ought to re-write the Constitution. Because it very specifically vests the appointment power in the President, whether he's a lawyer or a butcher or a baker or a candlestick maker. (A mere Harvard MBA, again, is presumptively incapable of managing to tie his shoes or pick a judge, never mind that Roberts fellow or any of Dubya's other nominations.) What's important, according to the constitutional scheme devised by the Founders, is that "We the People" pick a President, who then picks the Justices, who are then confirmed or not via the advice and consent of the Senate. But let's just do away with all that nonsense. How can the United States Senate compare to a faculty senate? How can the President of the United States think that sixty-two million votes in the last election give him a right to make this decision?

I continue to respect Prof. Barnett. But I reject — I mock and I ridicule without apology — his notion that only "experts" or "advisers who do know about such matters" have the ability or the authority to decide who ought to be appointed to the courts. I submit that that notion is profoundly anti-democratic, profoundly insulting to the American public and the office of the POTUS (whoever holds it), and profoundly contrary to both the history and intent of our constitutional structure under the rule of law. As I commented on Prof. Barnett's post, if he really believes that, he's "not just off into the elitist deep end now, [he's] drowned in it."

But it pretty well would explain the opposition to this pick, wouldn't it? As one of my readers wrote in a comment to another post, the headline should be:


Posted by Beldar at 09:03 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Professoriat to Dubya: Shut up and do what we tell you, you're just the President and sent a trackback ping are listed here:

» Miers Watch from Sierra Faith

Tracked on Oct 6, 2005 3:49:01 AM

» Do You Need an Ivy League Degree? from NathanNewman.org

Tracked on Oct 6, 2005 8:40:44 AM

» Yet more Miers blather from The Ministry of Minor Perfidy

Tracked on Oct 6, 2005 10:57:18 AM

» Anger Management: The Miers Edition from Wizbang

Tracked on Oct 6, 2005 1:36:49 PM

» Gee that sure worked well for them from blogs for industry

Tracked on Oct 6, 2005 10:20:06 PM

» Stop hurting my feelings, you snobby snob! from New World Man - it's got wires that vibrate

Tracked on Oct 7, 2005 10:50:36 PM


(1) KevinM made the following comment | Oct 5, 2005 9:37:12 PM | Permalink

People are all worked up because the courts are politicized, and the jurists are living in office a lot longer. So each pick has a gigantic effect. So each needs to be "perfect".

We ought to ammend the constitution to limit the justices to a single 18 year term, and have presidents pick one every odd year.

(2) Simon made the following comment | Oct 5, 2005 9:42:37 PM | Permalink


I confess I find your rant against expertise to be quite puzzling.

First, your objection seems to capture way too much. I would think that we would want -- even celebrate -- a world largely run by experts. I'm not interested in what you or anyone else (not an expert) has to say about surgery I might need. Nor in how to fix my car. Nor, even, in how to write my will, unless, of course, you have some skill or -- dare I say it -- expertise in trusts and estates. (I do care about who you think I should vote for in 2008, but more on that in a second.)

Second, I would suggest two modest propositions.

1) There are such things as good legal arguments and bad legal arguments, and there are people who possess strong legal reasoning skills and weak legal reasoning skills.

2) Non-lawyers are less likely than lawyers to evaluate well the strength or weakness of legal arguments, or of an individual's legal reasoning abilities.

From these, I think it quite appropriate to conclude that any president – lawyer or non-lawyer – who has not invested the time necessary to gain legal skills should rely (perhaps not exclusively, but in substantial part) on those who he or she trusts with such skills.

Third, there’s something a bit contradictory about your post. Traditionally we figure out how to evaluate claims of expertise set against democratic appeals by trying to carve subjects into “law” and “politics.” In dealing with questions of “law,” we should acknowledge and respect authentic claims of expertise. In politics – defined broadly – we don’t nearly as often acknowledge or respect claims of expertise – each person’s views are accorded equal respect, and ultimately the views of some relevant majority should control.

Do you see where I’m going? The more the Constitution is what conservatives generally claim it to be – a specific set of rules laid down subject to interpretation that provides definitive answers for those who interpret it properly – the more Professor Barnett is right; we should look for people who have particular expertise in identifying proper rules and correct interpretation. To the extent that law, including the Constitution, is indeterminate – more fused with the domain of politics – the greater the role that politics should play in the selection of justices.

To put it more simply: if good justices just need to “interpret” the law, then we should look at people who are good at interpreting legal documents, i.e., good at law. If good justices sometimes need to “make” the law, too, then we should look at people are good at politics, too.

In sum, a pox on both yours and Professor Barnett’s houses. (He says with a grin.) He wildly overstates his case, in part because he suggests that President Bush should substitute the views of his advisors for his own. But you go too far to the other side, I think, in your assertions that democratic norms somehow trump all professional expertise. Just because the President has the right to make an appointment without proper consultation does not mean that he is right to do so.

(3) David Walser made the following comment | Oct 5, 2005 9:45:35 PM | Permalink

Isn't part of our problem that the law is becoming too complicated? And isn't part of the reason for this excessive complication all the over-thought decisions being handed down by overly bright judges and justices? In an age of decisions that defy the plain meaning of the text of the law, that invents new rights at the drop of a hat or divines a "clock" that will cause other rights to expire in 25 years, perhaps we should put some people on the court who consider themselves to be a tad less brilliant than the current crop.

(4) hunter made the following comment | Oct 5, 2005 10:01:46 PM | Permalink

The heat that the reactionary wing of the conservative movement is having over the nomination of this woman falls apart with jsut about any slight touch of analysis. That the courst are now too high amd mighty for a non-judge to sit on raises far more concerns than it resolves. That this woman, who has provided leadership on a national basis and with great positive results for decades is considered too, too, too whatever, to be allowed the seat the President wants, is disturbing.
I frankly think there has been an anger brewing below the surface for sometime, a la Michael Savage; and nearly as incohate.
The nomination of Meiers was just the spark. I hope W and his team, along with people of good will, can put this out before it does real damage to us all.

(5) Beldar made the following comment | Oct 5, 2005 10:28:59 PM | Permalink

Simon: I'm not saying that Ms. Miers lacks legal ability or expertise. That's not the point of this post.

The point of this post is: Can only experts pick judges? You don't have to be a watchmaker to tell if a watch keeps good time. You don't have to be a constitutional scholar who'd graduated magna cum laude from Yale, clerked for Justice Scalia, and argued 200 cases in the Supreme Court to tell that there's been something badly broken with the Court over the last 30-40 years. You don't have to be John Roberts to recognize that John Roberts is likely going to improve that situation. Nor do you have to be John Roberts or Randy Barnett to recognize that Harriet Miers will, too — if you know her as well as Dubya does, and if you take the trouble to recognize that, yes indeed, she's amply qualified by the traditional objective criteria we've used for Supreme Court nominees thoughout the history of the Republic.

Mr. Walser, you've put your finger on a difficult rhetorical balancing act, the "Hruska Dilemma." How do you argue against pointy-headedness without seeming to be arguing in favor of mediocrity?

My solution is, I hope, the correct one: There are many kinds of excellence that may qualify one for the Supreme Court, and the Court needs a variety of different skill-sets and types of expertise. The brilliance that makes one a successful courtroom lawyer, or managing partner of a major law firm, or state bar president, can contribute to the Court, but it's a different sort of brilliance than, for example, John Roberts has. (He'd be the first to acknowledge that, I believe; he's acutely aware that he's lived almost his whole professional life in something functionally indistinguishable from law school moot court competitions, which are fine but ... narrow.)

I don't fault Prof. Barnett or the others who are attacking this nomination for having their hearts in the wrong place — they're patriots, they're passionate for the right reasons, and yes these nominations are incredibly important.

But they're stuck in a rut. They think that only someone who's been (a) a law professor or (b) a court of appeals judge or (c) both, is (d) qualified for or (e) needed by the Supreme Court. That's a failure of imagination; that's a failure to perceive that part of the current Court's problem is its lack of common sense to supplement that academic brilliance.

(6) Xrlq made the following comment | Oct 5, 2005 10:50:06 PM | Permalink

Duke Law grad Richard Nixon...

I could have sworn he got his degree from Sh... um, I mean, Whittier. Learn something new every day.

(7) Beldar made the following comment | Oct 5, 2005 11:11:26 PM | Permalink

Xrlq, like LBJ, Nixon went to a less-than-prominent undergraduate institution, and was hypersensitive about it. He did indeed get his law degree from Duke, though, which is (as you know) a superb law school.

(8) kent made the following comment | Oct 5, 2005 11:53:04 PM | Permalink

Experts? Everyday I think Bill Buckley is wiser and wiser for saying that he would rather be governed by the first two hundred names in the Boston phone book than the Harvard faculty.

(9) David Nieporent made the following comment | Oct 6, 2005 1:01:21 AM | Permalink

Your other comments in support of Miers have been pretty well thought out, even if I don't think they've been very convincing.

But you're being frivolous here. The constitution vests the commander-in-chief job in the presidency also, but nobody would suggest that it's reasonable for the president to be giving orders to troops on the battlefield. Barnett didn't say that the president didn't have the _right_ to pick nominees. Nor did he say that no president would be qualified to do so. He said that he didn't expect any president to be qualified to do so.

I expect my clients to be able to judge whether I'm a good attorney; I don't expect my clients to be able to judge whether I'd be a good Supreme Court justice. The two are very different, as I'm sure you know. Judging whether an actual judge would be a good Supreme Court justice is hard enough; judging whether someone who has never done anything like judging would be one is much harder. So what if Bush knows her? I don't think Bush is an idiot, but I don't see any evidence that he's a deep thinker about issues of jurisprudence, either.

(10) brandon davis made the following comment | Oct 6, 2005 1:30:42 AM | Permalink

[Comment deleted, arbitrarily, by the host. Mr. Davis, opposing views are welcome. Comments that end with "Screw that and eff u all too than [sic], thank you very much" will be deleted as soon as I find them. Go post on some blog where vulgarisms and uncivil screeds are tolerated, or start your own. Repeat offenses will get your IP banned here. — Beldar]

(11) Beldar made the following comment | Oct 6, 2005 1:54:02 AM | Permalink

Mr. Nieporent, I take your point, and I hope Prof. Barnett didn't mean what he literally said. But I think my characterization of his words is both fair and consistent with his WSJ op-ed's tone. I'd be the first to applaud if he retracted or modified them.

Indeed, let me expand a bit on my point: Your clients (I assume you're a lawyer) or mine can usually judge, at least in a general sense, whether we're good attorneys. That doesn't mean they could step into our shoes, though. Likewise, I don't expect that Dubya, or for that matter our lawyer-presidents, could necessarily write a compelling proposed majority opinion that would draw enthusiastic concurrences from a formerly divided set of fellow Justices. I don't expect that any president is likely to be published in the next issue of the Harvard Law Review with a critique of last Term's SCOTUS decisions under legal realist, rationalist, originalist, textualist, or any other "-ist" school of constitutional interpretation.

But Prof. Barnett says more than that. He's not only saying the President can't do those things himself, he's saying that the President (whoever that may be) is unqualified to pick someone who could.

That, sir, is elitist tripe.

Whoever picks our federal court judges must engage in subjective judgments. There will always and forever be risks of surprise and disappointment. But the notion that only "experts" can make informed decisions, I reject. The notion that the President — specifically, the person temporarily occupying the office of President of the United States, with the legitimacy intrinsic and constitutionally imbued in that office — cannot make the choice among competing potential nominees, but must turn instead to some sort of board of wise men (presumably law professors) to make the choice for him, I reject.

(12) brandon davis made the following comment | Oct 6, 2005 1:57:20 AM | Permalink

The strength of my comment would not have been diminished by the - edited - deletion of the line you objected to.

I'm neither a DU'r nor a FR'er.

I do apologize for responding - with a mild expletive, rhetorically expressed - to what I regard as an in-kind response to most of the "attacks" that I've been reading, from too many people on the Right that I generally hold in regard (yourself, Hewitt, amongst others), this evening, to those of us objecting to Meirs, on comparative grounds, and on your blog.

However, I did NOT "end" with the comment ...it was preceded with, and followed by a - civil - statement of disagreement.

Regardless: my apologies.

(13) Beldar made the following comment | Oct 6, 2005 2:06:25 AM | Permalink

Apology gladly accepted, further civil comments welcomed.

(14) brandon davis made the following comment | Oct 6, 2005 2:13:20 AM | Permalink


I'm only good for one contentious rant per issue.

That was it (I didn't save it first, alas - not deeming it quite as offensive as it was consequently judged by the proprietor); lost to posterity now I'm afraid.

Good night sir.

(15) Beldar made the following comment | Oct 6, 2005 2:48:55 AM | Permalink

Mr. Davis: Not lost, and herewith reprinted. (I'm genuinely not trying to run an echo chamber; that would be awfully dull.) — Beldar


Why can't I be dismayed that the president chose a "crony" by ANY definition of the term, without being blasted by my siblings on the Right as being - somehow - a traitor to the conservative cause?

The president is NOT my king. I'm deeply offended that the argument has moved from questioning his choice, by comparison to others whose strengths are obvious and whom I'm familiar and comfortable with, to personal attacks on the questioners ...apparently, for merely disagreeing with the president.

Are you SERIOUSLY suggesting that Ms. Meirs (I've read enough to think she's not an ogre, nor stupid, nor incompetent, nor incapable), is of the stature of Judge Brown, to cite one comparison? Why? Why should I agree with you? What evidence or arguments do you present that suggest that your elevation of Miers to the stature of a Brown or a Luttig is convincing? - None, at least, that I've found convincing.

I'm not saying Miers "sucks". I'm very much saying The Mier's as CHOICE sucks.

I wanted the president to show that he's WORTHY of my - of our - continued trust ...and not to be damned by all and sundry because I was disappointed that the president's idea of trust AND RESPECT is a one way stream that only flows to him.

Screw that and eff u all too than, thank you very much.

I. Remain. Ticked.

And unapologetic for feeling - no - for BEING betrayed by a president and party that I grow increasingly suspicious of. And non-inclined to be supportive of.

I - finally - find your arguments, such as they are, thoroughly unpersuasive.

(16) Mark Alger made the following comment | Oct 6, 2005 7:48:16 AM | Permalink

I tend to think that elitists ought to be careful. People might notice how -- er -- how well the elites have served so far.

And the fact that the elites are always proven dead wrong in the long run. That's how progress happens.

I'm not sure they want attention called to that.


(17) Simon made the following comment | Oct 6, 2005 8:06:18 AM | Permalink


Sorry, but I just don't buy it. The topics that the Supreme Court regularly engages -- not just constitutional law, but interpretation of all sorts of statutes, not to mention treaties or the remnants of federal common law -- aren't fit to be answered on a postcard. Cases that get to the Supreme Court (except maybe those where it is correcting egregious errors by the 9th Circuit) get that far not because they are easy or have clear-cut answers, but because they are hard. Very hard. Hard enough that pretty smart judges across the US will disagree on what the correct answers are, i.e., the circuit splits that comprise the majority of SCOTUS's work.

Someone who isn't a lawyer -- or even a lawyer who hasn't spent time on these issues -- might recognize at some intuitive level that Supreme Court decisions are "wrong" (although why we should credit such gut instincts as substitutes for the legal analysis that goes on has always remained somewhat of a mystery to me). But just because a president recognizes that the decisions announced are "wrong," does not imply that he or she will recognize what the "right" decisions are, or even who the "right" decisionmaker might be.

As I've said ad naseum, I agree that the Court needs a better variety of skills, a good courtroom lawyer, &tc. But I remain to be convinced that the President has any special insight into what makes a good courtroom lawyer, or a good managing partner, or a good state bar leader.

In fact, I would suspect it is quite the opposite. As an example: after spending a couple years clerking in a federal district court, one of the things that surprised me most was that non-lawyers (or even lawyers, like me, who had not spent time in a courtroom before) always misapprehended the sort of person who was successful in front of a judge or a jury. Call it the LA Law effect, or whatever, but outsiders, in my experience, just don't have a good handle on what counts as "good" and "bad" experience.

(18) capitano made the following comment | Oct 6, 2005 8:25:12 AM | Permalink

If you believe the world should be run by philosopher-kings, by experts, by PhDs and law professors (mere J.D. degrees don't qualify, it seems, and don't make me laugh by suggesting that a mere voter's opinion might count);
What does the most trusted man in America think about the ability of voters?
We're an ignorant nation right now. We're not really capable I do not think the majority of our people of making the decisions that have to be made at election time and particularly in the selection of their legislatures and their Congress and the presidency of course. I don't think we're bright enough to do the job that would preserve our democracy, our republic. I think we're in serious danger.
Elitist thinking is not limited to academia.

(19) Patrick R. Sullivan made the following comment | Oct 6, 2005 10:04:40 AM | Permalink

'The constitution vests the commander-in-chief job in the presidency also, but nobody would suggest that it's reasonable for the president to be giving orders to troops on the battlefield.'

That's an exceptionally poor analogy. The President gets to choose the commanders who do give the orders. As well as choose the Justices who get to decide cases.

(20) Alan H made the following comment | Oct 6, 2005 10:56:15 AM | Permalink


While recognizing that those cases that the Supreme Court hears are hard, I think it is also important to recognize that there are real work implications to their decisions. Unfortunately, too many of our Justices (and our academics) are far removed from those real world implications to understand how their decisions affect people. One of the positives about Miers is that she has led a huge law firm and has worked and consulted on probably more cases than any of the current justices. That, I believe, is an important fact in bringing some semblance of reality to the Court.

Second, the fact that people need more than a "postcard" to decide the case often has little to do with the complexity of the case. In my experience with philosophy (BA U of Chicago), I found that the longest and most complex arguments were often a cover for the writer not having anything tangible to support what he "believed". Similarly, even the justices that we might agree with on an ideological basis, can get caught in the trap of writing for the sake of the elegant argument instead of deciding the law based on the constitution. Sometimes it really doesn't need much more than a post card.

(21) Jonathan made the following comment | Oct 6, 2005 2:02:20 PM | Permalink


I believe that you are being a bit too sensitive to some of Prof. Barnett's words that you claim are elitist. In this hypersensitiviy, in my opinion, you're misunderstanding the point he is trying to make when he discusses whether "any president" knowing about judicial philosophy. I read the quoted passage as demonstrating his lenience in his attitude of who can be President. I believe his comment could be best rephrased like this:

"I do not hold such high expectations of the office of the Presidency that whomever holds that office must posess a sufficient understanding of judicial philosophy that he can pick judges on his own. I do expect him, however, to at least have advisers who do possess such knowledge."

His comment is not, I don't think, attacking Bush's knowledge or that of previous presidents. I think he's just explaining that whether a President is smart enough on his own or not, he ought to have advisers on judges who do not let him pick a so-so candidate like Miers.

(22) Corrie made the following comment | Oct 6, 2005 2:23:13 PM | Permalink

Without intending to, Simon makes a case FOR Miers:

From these, I think it quite appropriate to conclude that any president – lawyer or non-lawyer – who has not invested the time necessary to gain legal skills should rely (perhaps not exclusively, but in substantial part) on those who he or she trusts with such skills.

The person with those skills whom the president has trusted to vet his outstanding appellate nominees, not to mention Roberts, is Harriet Miers.

(23) stan made the following comment | Oct 6, 2005 3:42:37 PM | Permalink

I don't know anthing about medicine. But I am smarter than most doctors and I certainly think I know how to select a great surgeon, if the need arises.

Deciding cases at the Supreme Court level is a whole lot easier in terms of the intellect required.

I have not read a single post, column or article since the nomination which has presented the slightest bit of evidence that Harriet Miers is not capable of handling the job of justice. I have read quite a bit about her which indicates to me that she can.

Other than people stamping their feet and whining that she isn't their first choice, I haven't heard anything from the opponents about why she can't be a great justice.

(24) stan made the following comment | Oct 6, 2005 4:23:44 PM | Permalink

Stuart Buck points out the answer to Randy Barnett -- the advisor to W who selected Miers was a former Notre Dame law professor and former clerk for Ken Starr and Justice Scalia.

Isn't that what Barnett demands?

(25) Jim made the following comment | Oct 6, 2005 4:39:34 PM | Permalink

"The person with those skills whom the president has trusted to vet his outstanding appellate nominees, not to mention Roberts, is Harriet Miers. "

This begs the question:

Did Miers vet Miers?

(26) Crank made the following comment | Oct 6, 2005 5:42:03 PM | Permalink

Beldar - I'm with David Nieporent on this one. Personally, as a lawyer and a lifelong conservative Republican, I've been pretty depressed about this nomination, but I've appreciated the work you've been doing trying to rein in some of the more overwrought critiques of Miers. And I definitely agree with you that someone with experience as a practicing trial-level litigator and/or a trial judge brings a crucial experiential credential to the Court and can help the Court avoid the kinds of errors that arise from an insufficient understanding of the realities of litigation.

But I still think that this post is off base, and that you are giving short shrift to the fact that making persuasive legal arguments is a distinctive skill set, one not always understood or appreciated by even the brightest of non-lawyers, presidents included. More to the point, a big part of a Supreme Court Justice's job is persuasion - persuading other Justices, persuading lower courts (who will decide how broadly or narrowly to read an opinion), persuading future Justices deciding to extend or overrule precedents. And I just don't feel like we have much in the way of evidence that Miers has that skill set, and the burden remains on her and on the White House to prove otherwise.

I'm not bothered by the fact that Miers didn't go to an elite law school or clerk for a prestigious judge. I'm not bothered by the fact that Miers has never been a judge herself. I'm not bothered by the fact that Miers has never written or said anything persuasive in public about the Constitution. I'm not bothered by the fact that Miers has, as far as I can tell, spent the vast majority of her time over the past decade away from the courtroom, doing things besides litigation.

But I am bothered by all of those facts when taken together, and it's hard to think of too many examples of good Justices about whom all of those things were true.

(27) Simon made the following comment | Oct 6, 2005 8:29:57 PM | Permalink


You’re just wrong, I’m sorry to say, on a number of levels.

First, you’re wrong on the facts. Miers has only been counsel – or even in the counsel’s office – for a year, which suggests that she was not, in fact, the person trusted to vet most of the president’s “outstanding” nominees.

Second, you’re wrong that my argument implies any support for Miers at all. That is true only if you accept the proposition that a person vetting a job is ipso facto qualified to perform that job, a proposition that is true only for jobs where George W Bush does the selecting. To put it differently: I would argue that the probative value of vetting experience as applied to Supreme Court work is vanishingly small.

Finally, it’s worth noting that my argument even implies some modest probative value. It doesn’t even show that much. All my argument suggests is that the advisor should know more about the topic than the appointer, and that the appointer is right to rely on the advisor in such circumstances. In this case, a whole host of lawyers could have adequately vetted other judicial nominees without transforming themselves into potential Supreme Court nominees. Unless, of course, it’s turtles all the way down and Mr. Kelly is due to receive the next nomination.)


I have several quibbles with you as well. Keep in mind, as I have admitted again and again, I am in favor of more “practical” experience on the Court.

1. Locke Liddell is hardly a “huge” law firm. It’s not among the top 100 in terms of revenue or lawyers in the country, and it’s 2004 annual revenue wouldn’t even show up among the top 1000 businesses (per Fortune) or the top 500 privately-held businesses (per Forbes). And I still want someone to explain to me why it is that such management experience is relevant to a Supreme Court justice’s job. It isn’t as though managing a law firm is enough like managing a regular corporation to give someone real “business” experience.

2. Handling lots of cases is nice. I wish the other justices had handled more (esp. when they write on civil procedure and evidence issues). But my friend the public defender has handled tens of thousands of more cases – many of them raising issues of the sort the Court must deal with annually – than Miers ever did. Does that make him qualified? Why not?

3. Regarding legal complexity: to decide any particular case or set of facts the Court may (on rare occasions) not need more than a postcard. Although they often do, not because they are willfully obscure but because they have a lot of evidence and arguments to weigh. But of course the Court does more than announce the result in a particular case: it creates rules that the rest of the courts have to live by. And as much as I share Justice Scalia’s fetish for bright-line rules, the truth is that such rules are hard to come by. Most are nuanced, and need much explanation (not to mention the arguments about whether a particular rule is correct or not).

This really all does make sense given the complexity of the economy and society we expect the law to govern.


(28) Beldar made the following comment | Oct 6, 2005 9:53:10 PM | Permalink

Crank, I agree with you that persuasive skills are important. Disney and Microsoft were sufficiently impressed with hers that they hired her when they could have hired any other lawyer in Texas. Judges before whom she's appeared say she's an effective advocate. Her partners elevated her to their head because she'd persuaded them that she could persuade those of their ranks who were butting heads and having the hissy fits that big-ego lawyers predictably fall into like clockwork. I will grant you that this is a different sort of evidence of persuasive power than John Roberts' track record with his Supreme Court arguments, but it's neither trivial nor unimpressive evidence.

Simon: If you can't grasp how running a business might give one insights and skills that would be useful on the Court, then you're very much like all the existing Supreme Court Justices, aren't you? (I don't mean that as a compliment, as much as I do love you.)

Jim: Dubya has lots of advisers and touched lots of bases. This pitch -- that she somehow must have manipulated her own nomination -- reminds me of the people who simultaneously contend that Dubya is a moron-chimp and an evil genius. Is she a mediocre non-entity at the same time she's Rasputin?

Jonathan: Prof. Barnett no doubt wishes he'd written what you've re-written his prose into. But even you write that a President "ought to have advisers on judges who do not let him [sic] pick a so-so candidate like Miers." Pardon me, but I want a President who makes the final decision and then accepts responsibility for it. God save us from becoming a Nation ruled by focus groups, opinion polls, and "experts."

(29) Simon made the following comment | Oct 7, 2005 5:50:25 AM | Permalink


Of course running a business may give some insight, and that insight would be valuable. But let's not make Ms. Miers into a captain of industry -- or even someone with serious business management experience. Unless Locke Liddell is unique among law firms -- and if it is I will gladly stand corrected -- running it was probably more akin to a political job than a managerial one. Professional service firms are notoriously difficult to manage, law firms especially, and those who attempt to do so usually face many obstacles. I just question whether those problems are widely shared.

If we're looking for true managerial experience, I bet we would have to start looking at in house counsels, esp. those who have cycled in and out of operational roles. I don't think that would be a bad thing at all, but I also don't think that is what is going on here.


(30) Knemon made the following comment | Oct 7, 2005 11:24:56 AM | Permalink

"I would think that we would want -- even celebrate -- a world largely run by experts."

Not I.

(31) brandon davis made the following comment | Oct 8, 2005 1:31:35 PM | Permalink

Beldar? - I guess I do have another point here, late though it is for this thread.

You say "Disney and Microsoft were sufficiently impressed with hers that they hired her when they could have hired any other lawyer in Texas."

That's baloney, and a moment's reflection would have caused you to reconsider it.

You've been in Law long enough to understand that "local talent" can go a LONG way to determining who is hired in any given specific case.

What does a national client get when they go with the "local talent"? MAYBE they get legal "talent".

But - if you've done your OWN personal "due diligence", than you'll be ASSURED that you're hiring someone who knows the particular court, knows the judges, knows EVERYTHING about the venue ...and plays golf with all on sundry on the weekends. And sees them at dinner "after work" and tosses off the occasional adult beverage on those social occasion which all the local players must - and do - attend. In short, someone with IMPORTANT - personal - relationships ...that YOU hope to exploit and use in your case.

And so, re: your point about her being "chosen" by Disney? - It don't follow that this wasn't a brilliant move by Disney to choose her ...but that don't necessarily mean they did it because she was the best legal scholar for the case in that venue: it does mean that their due diligence indicated that she - and her firm - just might win REGARDLESS of her legal acumen.

Shame on you. You KNOW better!

...and. Just because I happen to disagree with you here on this, and have been - and continue to be; and indeed, with increasing alarm over this nomination - unconvinced as to the wisdom or adequacy of the president's choice, does not mean that I don't continue to respect what you have to say on the subject. Nor recognize that such a display of loyalty isn't an admirable quality ...but in this time, for this position, it's not enough.

You're just wrong this time, is all. Just Like The President.

Meir's wasn't chosen for any reason other than the very definition of what cronyism is: she's the president's friend ...and I read in my Hamilton that the Senatorial "advice & consent" rule was specifically to limit this sort of thing.

I can only hope they do. And you should too.

(32) Beldar made the following comment | Oct 9, 2005 6:07:27 AM | Permalink

Mr. Davis, I've been running behind on reviewing some of my comments, and just came upon yours on this thread.

I will say this: You haven't got the foggiest idea what you're talking about with respect to sophisticated corporate clients and how they go about hiring lawyers.

The fraud case against Disney that I discussed in this post was pending in Laredo. Check your atlas, then tell me how likely you think it is that a Dallas lawyer plays golf with the judges in Laredo.

But actually, no, don't tell me. It is clear we're not engaging in any kind of productive dialog. You've apparently find yourself unable to comply with my request that you keep your disagreements civil, at least as measured by my subjective and perhaps arbitrary standards. I am out of patience with you, sir. Please — go elsewhere to make your arguments, make them on your own blog. Let the marketplace of ideas flourish, but use your own bandwidth. You've repeatedly been rude here, both to me and to my other readers who've left comments. Yours are no longer welcome here, and I can still count on one hand the number of commenters I've had to come to that conclusion about in over two years of blogging.

(33) David made the following comment | Oct 9, 2005 2:48:21 PM | Permalink

Beldar: I'm surprised at your batience with BD. I generally ban subliterates a tad quicker. (I am tolerant of vituperative speech and vicious argumentation—even name-calling, but people who cannot spell, cannot use proper word choices and cannot think rationally don't get two chances with me. Life's too short.)

Oh, on topic: I don't think it matters a lot who is appointed to any judgeship/justice position (as long as they are literate, competent and rational). What is more important in today's society is that legislative and executive brances (at federal and state levels) yield far too quickly to judicial fiat. Judges aren't always right, and sometimes we need an (apocryphal?) Andrew Jacksonian pronouncement as: "John Marshall has his decision; let him enforce it."

Until we have legislatures and executives who will do their duty and put the justice system in its proper place, we will continue to have over-reaching courts. When legislatures and executives perform their duties, perhaps judges will confine themselves to applying the law and not creating it, as has been too often the case. (Well, IMO, once is actually "too often". heh)

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