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Monday, October 17, 2005

Words of one syllable about the Conference Call Cause Célèbre

In tomorrow's WSJ (hat-tip Orin Kerr at the VC), John Fund has this breathless report (boldface mine):

What followed [in a conference call about the Miers nomination on October 3rd], according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"

"Absolutely," said Judge Kinkeade.

"I agree with that," said Justice Hecht. "I concur."

Mr. Fund is far, far too good a reporter, however, to fail to include a paragraph somewhere in his story (the twelfth one) that includes the blindingly obvious observation about what his factual reporting does and does not reveal (boldface, again, mine):

The benign interpretation of the comments is that the two judges were speaking on behalf of themselves, not Ms. Miers or the White House, and they were therefore offering a prediction, not an assurance, about how she would come down on Roe v. Wade. But the people I interviewed who were on the call took the comments as an assurance, and at least one based his support for Ms. Miers on them.

Words of one syllable about that last sentence: If they took it that way, then each of them made a guess too. Duh.

It's unusual, but not unethical or improper, for sitting judges to make guesses about how someone else who might be confirmed to a different judgeship might possibly vote if a particular matter possibly comes up in the future. If these particular judges know Ms. Miers well, then their guesses might even graduate from the category of WAGs\*/ to the higher status of educated guesses. Neither man claims to have based his (at-best educated) guess on anything in particular that Ms. Miers has promised, or written, or said. Indeed, Justice Hecht has repeatedly denied having heard Ms. Miers make any promises or assertions or statements about how she might rule on abortion issues if she's confirmed, or even what she thinks of Roe as a precedent.

But except for the purpose of playing guessing games, this is basically meaningless information — even if it's written up by someone as diligent and articulate and well-connected as Mr. Fund. Even if it's in the Wall Street Journal. Even on a Monday.

I wish someone had asked one of these judges this (compound) question: "Hey, Judge, would documentary or testimonial evidence confirming your statements and that of the other judge on this conference call — even a videotape! — have been admissible under any theory of evidence in any court in the United States to prove anything whatsoever about Ms. Mier's actual intentions, or to prove what she's actually going to do?" 'Cause those questions could also have been answered in one word of one syllable, as to which no one would have to guess at all: 



\*/WAGs = "wild-ass guesses," a trial lawyer term of art used as well in some other professions, I'm told.

Posted by Beldar at 12:43 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Words of one syllable about the Conference Call Cause Célèbre and sent a trackback ping are listed here:


(1) Polaris made the following comment | Oct 17, 2005 12:55:10 AM | Permalink


How do we know John Fund didn't just make it up as he went along? The supposed converasion is completely unsubstantiated and he already admitted on Druge to "opening up his checkbook" to get dirt on Miers.

That puts Fund squarely in the category of the tabloid press.


(2) Beldar made the following comment | Oct 17, 2005 1:01:08 AM | Permalink

Oh, Polaris, I think much, much better of Mr. Fund and of the WSJ than that! And I really don't doubt that the phone call happened and that what he reports to have been said probably was said. I believe him; I have no fault to find whatsoever with his ethics. I just don't think this is news.

In legal terms, I'll waive my objections as to authenticity and hearsay. Let's presume it's not only on videotape, but it's on audiotape as well, the Pope was the videographer, Chief Justice Roberts was on the audio boards, everyone on the call has sworn to the same version of what was said, and the two judges have admitted under oath and continue to maintain that Mr. Fund's version is word-for-word accurate.

But if the issue is "what are her intentions?" or "what's she going to do?" then the objection that will be sustained, 99 times out of 100, is relevance/speculation. It's legally incompetent testimony to prove or disprove anything on those issues. (And that 100th time is gonna get reversed on appeal with that evidence thrown out on retrial.)

(3) Polaris made the following comment | Oct 17, 2005 1:22:12 AM | Permalink


You are certainly right that it's irrelevant, but that really wasn't my point. After John Fund's behavior these past two weeks including a promise of bombshell stories about Miers (lest we forget) AND an admission on Drudge that he was paying out of his personal checkbook for stories about Miers, makes me far less likely to accept his ethics.

In short, given his recent behavior, I am not willing concede that Mr. Fund is an ethical journalist.


(4) MDP made the following comment | Oct 17, 2005 1:51:38 AM | Permalink

WSJ: Mr. Dobson says he was surprised the next day to learn that Justice Hecht and Judge Kinkeade were joining the Arlington Group call. He was asked to introduce the two of them, which he considered awkward given that he had never spoken with Justice Hecht and only once to Judge Kinkeade. According to the notes of the call, Mr. Dobson introduced them by saying, "Karl Rove suggested that we talk with these gentlemen because they can confirm specific reasons why Harriet Miers might be a better candidate than some of us think."

Are we to believe Rove wanted the two judges to vouch for Miers, but he didn't know what they would say when someone asked the obvious question about Roe? I think it's more plausible that Rove knew what they would say and wanted them to say it to this audience in particular.

(5) Polaris made the following comment | Oct 17, 2005 1:59:42 AM | Permalink


You are probably right (although I still see no proof that this conversation actually took place other than in Mr. Fund's imagination).

So what? People believe a lot of things about other people. That's not a guarantee.


(6) Ironman made the following comment | Oct 17, 2005 8:17:59 AM | Permalink

Isn;t the term here "hearsay"? The two judges have no actual statement they are relaying, and without it, they are attempting to testify as to Ms. Miers state of mind on an issue based on informed conjecture.

(7) Rob made the following comment | Oct 17, 2005 8:56:51 AM | Permalink

its 1. an out of court statement (obviously) and 2. its offered to prove the truth of the matter asserted, i.e that Miers supports overturning Roe - therefore its hearsay in legal terms

Nor is there any applicable hearsay exception

Since Miers herself may not know what she actually would do on Roe, its speculation overlayed on speculation

Reporters obviously are not required to follow any rules of evidence, so they can make a non-story a story no matter how irrelevant it is

(8) DC made the following comment | Oct 17, 2005 9:17:55 AM | Permalink


One of the continuing problems with the Miers proponents is that you wish to weave in and out of a make-believe courtroom to use the rules of evidence and vary the burden of proof to suit the situation.

Who cares if this evidence were admissible in a courtroom? We're talking the court of public opinion.

So ... are we to believe that, like Pres. Bush, Justice Hecht has never in his life discussed Roe with Miers and has no idea? Are you kidding me?

And ... if she is truly such a blank slate with friends over such a long period of time, then why should conservatives have any confidence at all that she will overrule Roe?

(9) Polaris made the following comment | Oct 17, 2005 9:31:51 AM | Permalink


Are you suggesting that we should sink to the level of tabloid journalism? This article reeks of "I know what I know and don't bother me with the facts."

As Beldar correctly noted, it doesn't pass the "so what" test. You have two friends of Miers giving their unsubstantiated opinion. Big deal. Everyone has an opinion.

*My* point should be taken as well. This is gutter journalism and if we sink to this kind of low, then we are no better than those we criticize.


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


My point is simply this ... all of these conversations and vouching by friends and colleagues is a bunch of garbage. If you like what the "character witnesses" say, you go with it. If not, it's just their unsubstantiated opinion. Yet, that's all we have on this nominee.

If you diagram the sentences of those involved, with all of their qualifications, caveats, and whatnot, at the end of the day, you get: "Sorry, I didn't mean any of that. I have no idea how she'll rule, but trust me, any way. She'll be good."

This is what you get with such a poor nominee, where we have no way to show the public what kind of justice she will be.

So, we get more leaks "she'll overturn Roe", followed by "that's just my opinion". What does it tell you? Exactly nothing.

Exactly my point.

Nothing. Which is what kind of assurance we can glean by looking at her record that she will be a conservative justice.

To top it all off, as an evangelical, I know exactly what is going on here. People are winking and trying to speak in code.

Why do this? Why lead with the nominee's faith when we just told the Demos that Roberts' faith was off-limits? Because the case can't be made for her on her record, that's why.

As Fund correctly points out, this is a "super-stealth" nominee. As a result, the President is asking for "super trust". It's not a reasonable request.

(11) craig mclaughlin made the following comment | Oct 17, 2005 10:33:18 AM | Permalink

A week or so ago Professor Barnett in a post at volokh tried to apply the doctrine of estoppel to opponents of opponents of Miers-- estoppel by commentary or punditry estoppel, I guess. I thought to comment at the time--but didn't-- that if I'm going to be estopped then I want the hearsay evidence rules applied. Put a hell of a lot of journalists out of work, but it will make for far fewer appeals...

(12) Polaris made the following comment | Oct 17, 2005 10:34:56 AM | Permalink


Given that on Drudge, Fund admitted to opening up his checkbook to get dirt on Miers, don't you think that his motives might be just a wee bit suspect?

I am not saying you should support her. I am merely saying that we should wait until the hearings...and then decide.


(13) Rob made the following comment | Oct 17, 2005 10:57:09 AM | Permalink



"Some participants in the Oct. 3 conference call fear that they will be called to testify at Ms. Miers's hearings. "If the call is as you describe it, an effort will be made to subpoena everyone on it," a Judiciary Committee staffer told me. It is possible that a tape or notes of the call are already in the hands of committee staffers. "Some people were on speaker phones allowing other people to listen in, and others could have been on extensions," one participant told me."

Lets get this straight, John Fund thinks its newsworthy that committee staffers want to bring into the hearings parties A and B to TESTIFY about what X and Y may have SPECULATED on what Miers PROSPECTIVELY may rule or not rule on Roe???

As James Bond said to Q about the ejection seat in the Aston Martin: "certainly you must be joking"


"Even if Ms. Miers avoids a filibuster, it's possible Democrats would join with dissident Republicans to defeat her outright."

Exactly what John Fund hopes to happen by this non-story smear job like this


"The verb to bork, meaning to savage a nominee and distort his record" entered the vocabulary"

That is true and its also obvious that John Fund, Laura Ingram, Ann Coulter, David Frumm and others the last 2 weeks have been doing a classic "borking" job on Ms Miers, even before she gets a hearing

(14) Paul made the following comment | Oct 17, 2005 11:05:58 AM | Permalink

"Hey, Judge, would documentary or testimonial evidence your statements and that of the other judge on this conference call — even a videotape! — have been admissible under any theory of evidence in any court in the United States to prove anything whatsoever about Ms. Mier's actual intentions, or to prove what she's actually going to do?"


That's nice. But of course we're not in a court of law. We're in the court of public opinion. And if the notion takes hold -- warranted or not -- that Ms. Miers is a committed vote to overrule Roe, she's toast.

(15) Richard Mahood made the following comment | Oct 17, 2005 11:39:44 AM | Permalink


I have really enjoyed your ananlysis of the Harriet Miers saga. I am dismayed by the Prateorian Guard of the "conservative cause" knowing better than the President Bush.

Has Laura Inghram or other Miers critics taken the time to talk with you?

Here in engineering/science world we use the term "SWAG."

Keep up the good work!

(16) Rob made the following comment | Oct 17, 2005 12:09:02 PM | Permalink

STRATEGY B - to setup Miers for attack by the left

a quote from David Frum's "diary" via NRO dated October 17th, 2005

"And John Fund's rather shocking story in today's Wall Street Journal may portend a coming reversal in Senate Democrats' early acceptance of the Miers nomination.

Fund reports that the White House arranged for surrogates to guarantee a group of prominent religious conservatives that Miers would vote to overturn Roe v. Wade."

This is being written by a graduate of the HARVARD LAW SCHOOL, (presumptively admitted, by definition then also an officer of the court) in a widely influential online publication....

stating that Fund "reports" that a "GUARANTEE" was given to certain parties that
that "Miers would vote to overturn Roe v. Wade."

Frum is not merely reporting about Fund's story, he is clearly fabricating a new side-story

On its face, Frum should be asking how does anyone guarantee a prospective vote on Roe? The word guarantee has meaning and David Frum understands the meaning of the word "guarantee" and David Frum is the person putting this word into play.

The only thing "shocking" thing here is Frum's low interest in getting to the actual facts and his high interest in putting out additional misinformation

However Frum clearly has an agenda, to bring down the Miers nomination

(17) Weihsung made the following comment | Oct 17, 2005 1:27:47 PM | Permalink

Politics do make strange bed-fellows.

A little while ago, it seemed, that the anti-Miers voice was that she "lacked" conservative credential and should be opposed by true conservatives.

Now John Fund and Frum is hoping the democrats will *fear* her pro-life stance and perhaps even filibuster her.

Make me wonder, what is the beef that they have with this lady that they would risk all their reputation to sink down to this level.

(18) DC made the following comment | Oct 17, 2005 1:34:04 PM | Permalink


Re: Fund, I thought I made clear that I really don't care about these "he said-no he didn't say" meetings. Who cares re: Fund? The point I was making is that the "character witness" approach is all the Miers proponents have, and then they change the "rules of evidence" when they don't like how the meetings come out. There is nothing in Miers record that indicates she is the conservative voice to replace SDO and move the Court to the right.

Forget about Fund. There is a huge list of conservatives upset over this nomination. Perhaps it would do the Miers proponents good to realize the size and scope of the opposition and stop calling us "druids", "intellectual priests", the "Bos-Wash axis of elitism", "sexists", and "anti-evangelical".

Now, Miers might be the best thing in the world, assuming that she is not the same person that wrote those Bar Journal articles. Then again ...

Re: wait to the hearings, I would ask "why?" What will these hearings tell us? If they are like all other hearings, we will learn nothing. Additionally, forcing this nomination to a vote puts many Republicans and conservatives in a precarious spot.

Pres. Bush is not on the ballot any more. We need to look ahead, and we need to insist on a nominee that we can trust (but verify) is a conservative.

(19) Dwilkers made the following comment | Oct 17, 2005 2:36:52 PM | Permalink

"I just don't think this is news."

Hardly. You can bet it'll be on every news report about the nomination in the country over the next few days. As it should be. Hecht is reportedly a long time friend/boyfriend of Miers and one would think he has some insight into her thinking. Him saying she is a lock down anti-Roe vote isn't just news, it is BIG news. She's going to be confronted with it at the hearings.

Moreover my guess is this and other similar reports are going to corner Dems into filibustering the nomination.

And its a great example of how this nomination has been so botched.

(20) Polaris made the following comment | Oct 17, 2005 2:54:46 PM | Permalink


If the Dems were going to make an issue of it and treat it like big news, it would be all over AP and Reuters as we speak since they form the voice of the left.

It isn't.

This is getting all the coverage of a lead balloon.


(21) Weihsung made the following comment | Oct 17, 2005 4:02:23 PM | Permalink

"And its a great example of how this nomination has been so botched. "

This sounds eerily similar to people who think that the Iraq war has been botched.

If Iraqis vote in a new constitution, it is bad, because the sunnis don't get what they want. If they don't vote in a new constitution, it is bad, because the shiites don't get what they want. Either way, it is Bush's fault.

(22) hunter made the following comment | Oct 17, 2005 4:02:34 PM | Permalink

As I consider this more, I think what we are seeing in W is true leadership: He could have chosen the easy path, pleasing the conservative punditocracy, and lost....or he could go this route and put in someone who has been integral in shaping his very successful jduicial nomination process, but at some political risk.
I am also certain that W is hearing enough from the SC that he is reasonabley confident there will be other opportunties to replace some of the remaining 9 before too long.
W knows he is aproaching the last leg of his marathon in office. He knows how he wants the future to look, he has proven vision, and he is using his energy as carefully as he can.
I have appreciated the energy and thought you have poured into this nomination and the controversy around it, and look forward to more of the same.

(23) Weihsung made the following comment | Oct 17, 2005 4:42:59 PM | Permalink

Amen to Hunter

(24) Dwilkers made the following comment | Oct 17, 2005 5:06:49 PM | Permalink


Wrong. Its on the national news right now.

(25) Rob made the following comment | Oct 17, 2005 5:54:25 PM | Permalink


Jim Braude (lawyer/left wing talk host) WTKT 96.9 Boston radio broadcast powerhouse into New England market) just mentioned
a "most troubling" report today in the Wall Street Journal

He then set up the piece further reading selected bits of Fund's report, then Braude stated the following:


"When asked whether Ms Miers would overturn Roe vs Wade"

"Judge Hecht said" 'I guarantee it'


Note Braude spoke the words "I guarantee it" very slowly for emphasis

(26) CC made the following comment | Oct 17, 2005 7:23:34 PM | Permalink

I am for the nomination, but I believe that Fund's maliciously leaked report portends its doom.

The Dems cannot now afford not to defeat a perceived anti-Roe nominee. They will probably be joined by a few moderate and/or Miers-hostile Republicans. And standing against them will be nothing, because the Right is already fractured. Ergo, a conservative nominee will be defeated by our own side.

Ironically, the anti-Miers conservatives like Kristol will probably be deluded into thinking they've won a great victory. Maybe they will wake up when either Alberto Gonzales is nominated and confirmed (the Dems and moderate Republicans will offer token protests then gleefully enshrine him) or a "short-list" conservative is filibustered for months and probably defeated.

Someone tell me this won't happen. But I think I see the handwriting on the wall.

Nothing like snatching defeat from the jaws of victory.

(27) Carol Herman made the following comment | Oct 17, 2005 8:18:43 PM | Permalink

Amen to Hunter

(28) Ironman made the following comment | Oct 17, 2005 9:05:08 PM | Permalink

The delusional ConfirmThem posters think Luttig or JRB will replace Miers when he withdraws.


I try and explain Edith Clement is the MOST conservative possible replacement and get a whole lot of "we will have to be placated NOW!!!hmmph" arrogant responses.

They are all living in penumbra land

(29) DC made the following comment | Oct 17, 2005 9:51:38 PM | Permalink


You don't know that. We could very well get a confirmable conservative, such as Sykes or Williams ... or who knows.

(30) made the following comment | Oct 17, 2005 9:55:03 PM | Permalink

DC, I would be pleasantly surprised if that were to happen, but the "Overrule Griswold" fanatics over at CT think Dubya will let them pick the replacement,.... no chance in hades.

Dubya has had enough grief on this vacancy, he won't go looking for more.

(31) Polaris made the following comment | Oct 17, 2005 11:07:34 PM | Permalink

DC and others,

You are wrong. Naturally while Fund's article was of course mentioned, that has been no hue and cry on the left (or really much of anywhere except some conservative blogs) about his article.

If the Dems were going to sink her because of Roe, you'd see the Left attack dogs all over her on the AP, Reuters, Realclear politics, evening editorials, etc etc.

You are not seeing that. The Dems are giving Miers a pass. Fund failed in what he tried to do. Simple as that.


(32) Polaris made the following comment | Oct 17, 2005 11:11:00 PM | Permalink


In the extremely unlikely event that Miers is withdrawn (Bush would pull out of Iraq first), Williams will NEVER be the nominee for SCOTUS.

Williams committed a cardinal sin. She opened up her big trap when it Dobson said that some of the people on Bush's list did not want to go through the process.

That forever excludes her from consideration from *any* administration.


(33) Rob made the following comment | Oct 18, 2005 12:03:34 AM | Permalink

During a secret meeting held in the DC Metro subway yellow line late Monday afternoon, an unidentified party disguised as a homeless man, said John Fund should be given the "Jayson Blair Award for Irrelevancy in Journalism"

When told of this Judge Kinkeade said "Absolutely,"

"I agree with that" "I concur" said Justice Hecht."

"I will guarantee it" stated David Frum

(34) Ironman made the following comment | Oct 18, 2005 12:08:21 AM | Permalink

Please don;t defend the stupid leaks through Dobson. They were like Lidge's pitch to Pujols in effectiveness.

(35) James B. Shearer made the following comment | Oct 18, 2005 12:23:23 AM | Permalink

Beldar, it is highly annoying to laymen when lawyers attempt to invoke legal concepts such as "presumption of innocence" or "admissable evidence" in cases like this where they are meaningless.

(36) Carl Pham made the following comment | Oct 18, 2005 12:56:23 PM | Permalink

I find myself disturbed that so many people want to know exactly how Harriet Meiers will rule on one or more hypothetical cases, and dismiss as flimsy irrelevancy evidence as to her character.

This is bizarre. If that's the priority, why not just place a computer program on the Supreme Court? Then you can be absolutely sure it will rule the way you want, as measured by polls at the time, on each and every case. There'll be no independent human judgment at all, with all its imponderables and regrettable quirks -- or moments of humanity and profound insight hailed half a century later as before its time.

Geez, Louise, given that we cannot predict the future, we cannot know the precise outline of the cases that will come before the Court, and that people are not automata, and that we prefer to be governed by men (or women) and not machines, I would think evidence of character and nature is actually exceedingly important. Furthermore I suggest evidence of intentions with respect to particular hypotheticals is almost worthless. Hell, if you ask me whether I intend to eat right, exercise, and get to bed on time all next week, I'll say absolutely yes. But tune in ten days from now, and what actually happens might be a wee bit different. And if that's not serious enough a situation, ask yourself whether anyone gets married and has children without intending to stay married. And yet half of them don't.

In short, the evidence of the nature of human beings says no one, not even Harriet Meiers herself, can accurately guess how she will rule on whatever turns up on the Supreme Court's docket for the 2020 term. So it actually makes quite a lot of sense to instead be asking: is she a decent, moral, hard-working, sensible, humane, thoughtful woman?

Indeed, if only we stuck to those questions for other nominees, instead of chasing the fool's gold of prognostication of specific rulings, we might have better Justices all around.

(37) Ironman made the following comment | Oct 18, 2005 6:17:49 PM | Permalink

Well, Carl, the other guys demand a blood oath to uphold Roe prior to being considered for the nomination to the Supreme Court

(38) Carl Pham made the following comment | Oct 19, 2005 2:51:04 AM | Permalink

Yeah, I read that.

Only...do you suppose they're better chess players than we think? Maybe the point of floating all this Roe litmus garbage is to gull the conservative side into submitting to an issue-by-issue proctological exam. Then when the shoe's on the other foot, there's just a wink and a nod 'cause any conservative litmus test would be ideological out of the mainstream madness, naturally (cf. Ginsburg, Ruth B., confirmation of).

You know, maybe it's like when you argue with your teenagers, and the little lawyerly fiends (sorry Beldar) demand a point-by-incremental-point fully footnoted exposition of your position...and you begin to suspect half an hour in that their real design is to distract you from your goal by forcing you to cross t's and dot i's until you go mad. The Soviets had this down to an art form during Cold War "negotiations."

Brrr. Paranoia acting up again today, I guess.

(39) bill made the following comment | Oct 19, 2005 8:50:16 AM | Permalink

This explanation doesn't pass the laugh test. Ok, last week Bush "defended" Miers by saying her religion is REALLY important. I wonder why her membership in a very anti abortion church would matter? Then Dobson claims he knows something he shouldn't know that puts him at ease. Then Fund writes of the conference call where two judges sent by the White House essentially guarantee a no vote on Roe. It is simply closing your eyes to reality to believe that none of this means anything. Why else would Bush talk up her religion (and thereby invalidate the 20 year old conservative argument, last used with Roberts, that a nominee's religious views were irrelevant)? What else would Dobson have learned? And as to the call, we are to believe that these two judges were simply giving their guess that Miers would absolutely overturn Roe??? Even if the WH didn't send them out, that is, all due respect, just silly. Why would a bunch of preachers care what 2 tx judges believe about what Miers believes? Why would that satisfy Dobson? Is he that stupid, that easy to get to fall in line? Please, people. The President has nominated someone who should not have been nominated, and to curry favor with conservatives he has told them, in code and otherwise, Roe is toast. And attacking Fund as an unethical reporter because you don't want to believe the call happened? A play right out of the Clinton playbook and one not worthy of conservatives. Has any of the call members come out and said it did not happen? If not, why not. You defenders of Miers are grasping at straws.

(40) Jeremy made the following comment | Nov 19, 2005 6:40:16 PM | Permalink

Now that she's has withdrawn its amazing to see how Bush turning on his base has affected his approval rating. ouch...

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