...it's not dark yet, but it's gettin' there...

October 26, 2005

Miers: My End-Game Opinion

Earlier, i posted my preliminary opinion on the Miers nomination. At the time i fully expected the controversy to die down, although i was mildly disappointed with the choice. Or rather, i was more disappointed with the fact that Bush had chosen not to nominate one of my preferred candidates, instead opting for another apparent stealth nominee.

Over three weeks have passed, and i've watched and listened as the controversy refused to die. This story has had "legs," in the news parlance of the day. And the more i learned about Miers, the less willing i have been to close my eyes and hope for the best. Now, i am ready to commit to a side in this debate. It shouldn't be a surprise, given my background as a conservative with a history degree, that i have decided to oppose the confirmation of Harriet Miers as Supreme Court justice. My reasons have little to do with ideology.

Many reasons to oppose her confirmation have been proffered by conservative pundits much more knowledgeable than i am. These reasons seem to fall into a few broad categories. One group is mad because she isn't a big name judge. These folks are mad because they expected Luttig or Brown or Pryor. i can understand this criticism. i wanted McConnell or Brown. i still don't understand why Kozinski's name wasn't batted around more often. But i could have lived with my disappointment if Miers had been a good choice, and i think most conservatives feel the same way.

Another group is mad because Miers lacks a clear "judicial philosophy." The most articulate spokesman for this point of view is Mark R. Levin, who's turned the phrase " . . . but what's her judicial philosophy?" into a kind of mantra. This criticism has a lot of merit, in my view. i think it's fair to suspect that a person who has shown no evidence of having a coherent underlying approach to constitutional issues probably does not have such an underlying approach. At age 60, it's a little late to expect Ms. Miers to start developing a useful judicial philosophy if she hasn't given much thought to it before now.

Still, i'd be willing to give Ms. Miers the benefit of the doubt on the judicial philosophy question if that were my only objection. It's quite possible that despite the scant evidence of any coherent philosophy, she might actually have one. The trouble is, we don't know what it is. Larry Tribe and Erwin Chemerinsky have coherent judicial philosophies, but woe unto us if they were ever placed on the court. At least Tribe's and Chemerinsky's viewpoints are well known, as are their towering intellects. Which brings me to my next point, which is the clincher.

i'm not saying that Harriet Miers is not smart. Her background, education and experience proves to me that she is. But the position of associate justice on today's Supreme Court is not a job for just any smart person. It's a highly specialized occupation, and those who say it's not a place for "on-the-job training" have it absolutely right.

i am certainly no expert on constitutional law, although i have studied it in more detail than most people my age, both as a law student and in undergrad and graduate history courses. i know enough to know what i don't know. It is perhaps the most difficult area of law, not because it surpasses the intricate detail of a subject like tax or securities law, but because it is so malleable and its standards can be so hard to define. Con law is the "big leagues" of the legal profession. And doing con law as a Supreme Court justice is like being in the World Series. You have to be on your game at all times. You have to be the best of the best to do it right, and if you're not, it will become painfully obvious to knowledgeable observers very quickly.

i think that is the problem when non-lawyers like President Bush try to make decisions concerning the legal world. Most non-lawyers i've met seem to think that all lawyers know everything about all fields of law. No one would think to ask a dermatologist questions about spinal surgery. Yet Miers supporters are quick to assume that a corporate lawyer could easily slip into the role of constitutional scholar overnight.

i don't care that Miers has been at the White House for almost five years. That's not the same thing as spending a lifetime thinking about constitutional issues and the development of precedent from year to year and case to case. That's what con law is all about. It's analyzing precedent, history, argument and policy, then trying to extrapolate the potential reverberating effects of a ruling on future transactions, often for generations to come. Con law is to regular legal practice as Chess is to checkers.

Think about a guy like Mike McConnell, for instance. i've spent many hours this semester dissecting his various Establishment Clause articles, most notably his William and Mary Law Review piece (44 Wm. & Mary L. Rev. 2105), which is heavily footnoted, dense and unquestionably essential reading no matter what side of the religious argument you are on. i'm nowhere close to getting a handle on the subject. Here's a guy who's thought about this shit for years. He likes thinking about this shit. You could say the same thing about Prof. Tribe, if you're a liberal. Is there any evidence that Ms. Miers is similarly up to speed on even one subject of constitutional law?

So what if she's not up to speed? Why does that matter? i'll tell you why. An effective Supreme Court justice must have the power of persuasion. If the other justices do not have confidence in her mastery of the subject matter, in her authority as an analyst of the case law in question, they will eat her alive. At this point, i see no evidence that Ms. Miers has the kind of background that will give her that kind of persuasive authority. In fact, i have seen discouraging murmurs that she lacks just that.

How many Supreme Court opinions has she read top to bottom, and understood? It's hard to believe, with her busy career, that she's had the time for that kind of recreational study. If she's confirmed, when is she going to find the time then? i remember my first month of law school. In my nightly reading, i came across so many unfamiliar words and concepts that i was constantly going into Black's Dictionary to look things up. It was a nightmare. i've since learned how to skim the cases just to get through the reading, but that's not something i want my Supreme Court justices doing.

Oh sure, she can have her clerks do the heavy lifting. But in this day and age, i don't want unaccountable idealistic twenty year olds who were basically the best ass-kissers in law school leading around the new justice by her nose. There are plenty of historical examples of Supreme Court justices who relied overly much on their law clerks, but that was never a good thing. And today, the scariest issues are much scarier than they ever were back in the day. Terrorists who can blow up entire cities, scientists who can condemn millions more unborn lives to death, those are just two examples. This is a game best left to the pros.

i'm planning to watch the confirmation hearings, assuming she doesn't withdraw before then. i'm willing to keep an open mind, but unfortunately Ms. Miers has an even tougher job than Justice Roberts had. She must be absolutely stellar at the hearings, because she has to change minds. i know the White House has been working hard to prepare her, but i'd be very surprised if she can pull it off. Very surprised.

Update: You're freakin kidding me?! i told you the president reads my blog.

Update 2: i heard Dick Durbin this morning say, "this was not about documents, it was about Dobson." What an ignoramus. Dobson was one of Miers's earliest supporters, you moron.

And Hewitt's afraid we might lose to these guys?!

Update 3: The Anchoress, who correctly predicted the Miers nomination ahead of time, now turns her clairvoyant powers toward Ted Olsen. i see one problem that should prevent an Olsen nomination: a little case for which he represented the president once upon a time. Bush v. Gore. An Olsen nomination would be spun as a belated quid pro quo, fairly or not. Who needs that aggravation on top of everything else?

Let me go on record now and reiterate that McConnell is my first choice, J.R. Brown my second.

[cross-posted at A Western Heart]

Posted by annika, Oct. 26, 2005 | TrackBack (1)
Rubric: annikapunditry


My dear, I must lead you by the hand back to the land of sanity. "I'd rather be ruled by the first 500 names in the Boston telephone directory, than the faculty of Harvard. Because given a choice, the faculty of Harvard will vote for utopia, and the pursuit of Utopia in the 20th century has led us to the death camps, and the gulag."

You're being taught the internecine quibbling of the legal guild. A justice should not need to be a lawyer. There is no hidden meaning to be devined in the constitution. If an ordinary citizen can't understand the law, it's time to hang the judges.

Posted by: Casca on Oct. 26, 2005

Sorry Annie, I have to agree with Casca. But I have to warn you both that I won't be happy until engineers rule the world.

Posted by: Mark W on Oct. 27, 2005

Actually, any reasonably well-read conservative will recognize the words as those of Chairman Bill, WFB, the Godfather of modern conservatism.

Poor Harriet, she was not Prince Hamlet,
nor was meant to be;
An attendant lord, one that will do
To swell a progress, start a scene or two,
Advise the prince; no doubt, an easy tool,
Deferential, glad to be of use,
Politic, cautious, and meticulous;
Full of high sentence, but a bit obtuse;
At times, indeed, almost ridiculous--
Almost, at times, the Fool.

Posted by: Casca on Oct. 27, 2005

"i'm nowhere close to getting a handle on the subject."

Nor will you. Establishment Clause jurisprudence is a total MESS.

Posted by: Mark on Oct. 27, 2005

Looks like you don't have to worry about it after all...

Now we just have to wonder who Bush will put up next, hopefully someone good this time.

Posted by: Rob on Oct. 27, 2005

The reason Scalia is the model is that he best is able to simplify and impart his strict constructionist view of the Constitution.

We need someone who can likewise enunciate and has a record of following that clear and unabiguous approach to the Constitution.

We don't need any more liberal Justies telling us what they think ought to have been included as "rights".

The Framers included a method by which the Constitution could be amended, in fact, two alternate methods.

They did not include the method of Judicial Legislation as a third way.

Posted by: shelly on Oct. 27, 2005

I maintain that she was always a stalking horse sent out to disarm the opposition. Even dear Annie has bit on the "qualifications" red herring. My money is on Luttig. After all... he is "qualified", hehehehe.

Posted by: Casca on Oct. 27, 2005

I side with the Godfather, and further say this: The Constitution was written by smart Americans from all different vocations, and it can be understood by smart Americans from all different vocations. It only requires extreme training to understand the logical physics of creating rights out of thin air. When a smart layperson cannot understand Constitutional law, its time to overthrow the government, burn the legal document, and start over(can you tell I don't have a law degree?!) I also believe its not optimal to create a nine person band which is all horns. A piano would positively impact the sound. And some drums.

Second: That Ms. Miers did not make it through confirmation is empirical proof that she was not outstandingly competent. This is where I draw my line for a non-judge SCOTUS Candidate: elitely competent - no; well and solidly competent - no; outstandingly competent - yes.

Bill Parcells says this: "You are what you are. If you have a 6-10 record, you are a 6-10 team." If Miers' was an outstanding intellect, quick on her feet, with at least SOME excellent speeches and writings in her background, I believe she would've successfully made it through contentious, ugly, Clarence Thomas type hearings(begin porno jokes now). That she did not is a comment on her competence: solid, but not outstanding. I wasn't distraught over Miers nomination, because I had confidence it would play out as it ought to, either way.

Accordingly, I'm happy with this outcome. President Bush probably erred on the side of hubris, and conservatives reminded him of his proper responsibilities. A very good thing.

Posted by: gcotharn on Oct. 27, 2005

i wasn't really clear above. i agree that the constitution is plain enough to be understood by the average layperson. i'm not saying i wanted a judge who was a con law scholar because i want someone to take the simple document and make it more complex. i want the opposite. But you need someone who is a scholar to do that. Really you need two things, an originalist who is a scholar. Mike McConnell is my first choice. Someone who can back up his or her originalist philosphy with argument based on history. Someone who knows the territory, because the libs on the court are smart enough to construct counter-arguments for their expansionist points of view. if we're to have any chance of rolling back the mess that the recent courts have made of things, we need a strong player on the court. Miers was not that player. It's not enough to know where you want to take the court (and i'm not sure Miers even knew that), you have to have the intellectual tools to get four other justices to go along with you. If our goal as conservatives was to preserve the status quo of expansionism, we could easily live with a go-along and get-along kind of justice. What we want is fundamental change, and we need a scholar for that.

Posted by: annika on Oct. 27, 2005

Luttig and McConnell lack an essential part that will be important in this next battle; because it most certainly will be a battle, there will have to be big stakes, and that means political capital will be on the line.

The way to do that is be sure that the nominee and the fight will result in increases to the party of the President and decreases to those opposing.

Thus, the nominee better have a vagina or be a person of color to raise the stakes.

I'm praying it isn't Gonzalez; he's way too squishy, but maybe one of the Ediths or Collins of Texas.

My choice? Janice Rogers Brown, who meets both criteria and who is unabashadly a conservative. And, she writes well and gets along well with her peers.

That'll make Chuck Shumer's eyes pop out of his head and Leahy go into conniptions. Let'm filibuster. We can win this one, and win big points across the board.

P.S. What kind of man says "hehehe"?

Posted by: shelly on Oct. 27, 2005

true, shelly. JRB would be my second choice. i wonder however, since her female-minority background makes her such a strong choice, why Bush didn't name her instead of Miers? Is there something we don't know? Or is it really that Bush didn't want a fight with Democrats, as i suspect.

Posted by: annika on Oct. 27, 2005

Luttig has an outstanding qualification. He's buds with Roberts. I can see them now, the four horsemen of the Supreme Court; Scalia, Thomas, Roberts, & Luttig. The left will have a shit hemorrage for at least a decade.

P.S. I will not stoop to bandy insults with a racist, sexist, santa monican.

Posted by: Casca on Oct. 27, 2005

On the one hand, Bush is free to forget about an affirmative action/gender nomination, which is refreshing.

OTOH, it would be brilliant politics to bait the Dems into an all-out attack against JRB. I would LOVE to see those images. You could revise "How She Sat There" to reflect JRB sitting poised and self-contained in the Judiciary Committee, with moonbat furies swirling all around her.

I live in Texas. I know lots of people who are very decent in almost all respects, yet, for some reason, they cannot be comfortable with the idea of mixed race marriages. Yet these very people generally rever Condi Rice, and Tiger Woods, and Colin Powell. Pre HIV, they loved Magic Johnson like their own son. They love Michael Jordan, Jerry Rice, and Oprah. It would take these people 2 seconds to see the image of JRB, ascertain that she was being picked on, and rally completely to her side.

If JRB is as sharp as I think/hope she is, and as poised and as dignified, her nomination might be nuclear good. I love the idea of McConnell. His nomination would make me ecstatic. But JRB is brilliant political jujitsu.

Posted by: gcotharn on Oct. 27, 2005

I can't help it. Everytime I look at JRB, I see Wanda Sykes! That COULD be a good thing.

Posted by: Casca on Oct. 27, 2005

CASCA, I have come over to your way of thinking, She was a stalking horse.
ANNIKA, The Supreams might spend many years of their life thinking about constitutional issues but it sure does not show. Any idiot with half an education can see that McCain-Fiengold was an a priori imposition upon political speach, the very type of speach most protected by the constitution, yet five of them still got it wrong. I wanted to slap them (and the president) and yell "What part of congress shall make no law do you not understand!".

Posted by: Kyle N on Oct. 27, 2005


How she sat there,
the time right inside a (formerly liberal) place
so wrong it was ready.

That trim name with
its dream of a bench
to rest on. Her sensible robe.

Doing nothing was the doing:
the clean flame of her gaze
carved by a camera flash.

How she stood out
when they bent down to retrieve
their dignity. That courtesy.

Posted by: gcotharn on Oct. 27, 2005

Let's nominate Olsen and rear the head of 9/11 once more.

As far as gcotharn's comments, they cannot be comfortable with the idea of mixed race marriages

I like to think Texas is changing, but since I've moved here anytime I've gone out with a black girl I've definitely felt that vibe, and it is specifically reserved for black people. And I'm in dallas, so I hate to think what it is like out in the countryside, though I've heard stories. Still it is quite often just a vibe, people don't say anything beyond non-descript politeness.

Posted by: Scof on Oct. 27, 2005

Annika, yes at least one of his staffers may very well read you. Nothing gives a truer picture of the real opinions of Americans than their own words. The "wheat" in the blogosphere is pretty thin compared to the "chaff", and it doesn't take much more than a regular dose of solid thinking/writing to rise above the chaff.

Hi Karl!

Posted by: Desert Cat on Oct. 27, 2005

SCOF, I live in Houston and see mixed rqace couples all the time. It's no big deal here.

Posted by: Kyle N on Oct. 27, 2005

I wish I hadn't brought up race. I was thinking/writing fast on a deadline. My opinion: mixed couples are just fine with the large majority of Texans. I do find it odd, though, when an occasional person who I consider wonderful in every respect, and who I just know would run into a burning car to save a black child, will express discomfort with mixed couples.

Posted by: gcotharn on Oct. 27, 2005

Yeah I've seen more and more here too Kyle, but I still hold out poor hope for people's private opinions. Like I said, I ain't seen much whenever I've been in an applicable situation, but still...

Posted by: Scof on Oct. 27, 2005

There's all this talk about the Republican base and the conservative base of the Republican Party, and the conservative base of the president and how it's important to play to the base and please the base and fawn over the base.

And look what it gets President Bush: It just gets him a kick in the rear. That's what they've done to him, and they've done it to him at a time when he's vulnerable, and they've done it at the expense of a perfectly fine human being.

The extremist nature of modern Republicanism laid bare for all to see.

Posted by: Ghost Dansing on Oct. 27, 2005

Aw shit GD, can't you get anything right? We kicked him in the nutz! And he had it commin'. Just as Clint observed in "Unforgiven", "We all got it commin' kid."

OMG, if there is anyone more unassailable than a black woman, it is the surviving spouse of Barbara Olsen! OMG, the humanity!! Rend the curtain and let his story be told!!!

Posted by: Casca on Oct. 27, 2005

Guys like durbin dont give a fuck that his wife died on 9/11. He'll probably say she was the 20th hijacker.

Posted by: annika on Oct. 27, 2005

I know! It will once again unmask them, like that lying fucktard's funeral in Minnesotta. It's the only thing that gets through to the "undecided vote". God DOES have a sense of humor, Mwahahahaha.

Posted by: Casca on Oct. 27, 2005

If being a pragmatist makes one a racist and a sexist, I guess I am one. Funny, I never thought of that myself.

Nah, the truth is that if he puts JRB up, it is in the face of the Shumer/Leahy/Kennedy death squad. I think he's spoiking for a fight now, and he may do it.

They take her down, they lose the midterms across the board, maybe we get to 60. They'll have to filibuster to do it. What will the 7 from the gang of 14 do? Stay tuned.

More accurately, I am a Palisadian, although my address may be Santa Monica, it is because the US Post Office does not observe city boundaries and insists on my address being that, despite the fact that I live in the Pacific Palisades and know how to laugh like a man.

Posted by: shelly on Oct. 28, 2005

OK, I've been thinking about Ted Olson.

He is one smart guy. Early in my career I had some interplay with him when he was in Los Angeles, and he is right on the money most of the time.

No one can doubt his deep steeping in the Constitution; Hell, Bush v. Gore ran the gamut all by itself, not to mention the tons of cases he's argued as Solicitor General.

But, I think he's about 65 or so, maybe too old to waste the seat on.

And there's the sexist, racist stuff; no danger to the Dem's to take him on and lose some constituency.

I'd be surprised to seee Bush go with him, but surely not disappointed.

I'm still hoping for JRB and the fight, but guessing one of the Ediths or some other possessor of the magic part.

Posted by: shelly on Oct. 28, 2005

Well, since you started out by whining like a beatch, it's hard to tell.

There is no cause and effect relationship between blacks in government, and the 90% black democrat voting block. Nobody votes 90% for one party or candidate. That's the product of the real voter fraud going on in this country, and will be overturned by the law which takes hold in January that requires all voter records to be computerized.

Posted by: Casca on Oct. 28, 2005

Can we talk about something really important? What do you think about the 30pt spread Wazoo is getting this weekend? They've got a shitty record, but have been in the hunt until the last snap all season.

Posted by: Casca on Oct. 28, 2005

Annika, perhaps a Supreme Court haiku contest is in order, lol.

Posted by: Mark on Oct. 28, 2005

And yet: "Not Prudent". Oh Dad!
DNA echoes.

Brave Bush. Protective.
Called to big issues, by God.
All else pragmatic.

Posted by: gcotharn on Oct. 28, 2005

What SC needed was a reality check; they got it this week with the (BCS Bullshit Computer System)ranking Texas ahead by a pubic hair.

Watch for them to blow Washington out of the Coliseum tomorrow. They are pissed, and they've moved some guys to corner to help out. Pete's been redesigning the D backfield strategy, due to the picking on thing.

I'm laying the points (I took them last week and gotlucky)this week.

Is OSU still playing football?

Posted by: shelly on Oct. 28, 2005

Let's see, WaZoo lost their last three games by a total of 10 pts to UCLA, Stanford, and Cal. They are easily better than their 0&4 record. I don't see your heros beating them by 30. They put 30 on the board against Cal in one half last week.

Upset of the week? Georgia over FL, bet the moneyline.

Posted by: Casca on Oct. 28, 2005

I rarely hear people talking about pac10 football out here in dallas, so I had to drop in my 2 cents about Arizona football: please please win some more. That is all.

Posted by: Scof on Oct. 28, 2005

BTW, I hope someone talks to Harriet about that eyeliner.

She was a couple of weeks early for Halloween.

Posted by: shelly on Oct. 28, 2005

NOW, you go for the ad hominum!

And she's ugly too.

Posted by: Casca on Oct. 28, 2005


Fifteen yards for piling on (and redundancy).

Posted by: shelly on Oct. 29, 2005

"I don't see your heros beating them by 30. They put 30 on the board against Cal in one half last week."

Whoops. Covered in the first half. Ten yards for being dense.

"Upset of the week? Georgia over FL, bet the moneyline."

Whoops. Wrong again, Henry. Fifteen more yards for inappropriate selection.

Better stick to SCOTUS picking.

Posted by: shelly on Oct. 30, 2005

Samuel A. Alito Jr., J. Michael Luttig, Priscilla R. Owen, Alice M. Batchelder, Janice Rogers Brown, Edith Brown Clement, Edith Hollan Jones, Larry D. Thompson, J. Harvie Wilkinison, Theodore B. Olson, John Cornyn, Alberto Gonzales, Emilio Garza. What a bench!

Just to throw in a favorite son, how about Ronald George of California, our Chief Justice?

Luttig is the closest to John Roberts as a candidate; Alito is the safest bet for the conservative base.

Brown, Clement and Jones are women.

Thompson and Brown are black, Garza and Gonzales are brown.

Ron George and Ted Olson are longshots, but possible. Both are confirmable.

I'm hoping for Luttig or Alito. Alito is the closest to Scalia. He's my man.

I have backtracked from the vagina/color theory. Now, we just need a fight we can win and and a good solid thinker who can move the rest of the court in the right (no pun intended) direction.

Alito will be named tomorrow by POTUS.

Shumer will whine, Leahy will threaten, Kennedy will burp and bloviate. Too bad Daschle is gone; he would have been sad, sad, sad. Reid will try to be Daschle.

Alito will be confirmed with about the same amount of votes as was Roberts. The court will take a step to the right.

The President's numbers will start to climb back, and will be bolstered by the confirmation and then the election in Iraq.

Posted by: shelly on Oct. 30, 2005

nice pick, Shelly. Who do you like in tonight's game?

Posted by: annika on Oct. 31, 2005

Sorry Annie:

I'm not following pro football, except the Raiders. My favorite team is whoever they are playing that week.

Tonight I was trick or treating with some grandkids, and had no time for Steelers or Colts, both of whom appear to suck. 11 1/2 doesn't look too good right now.

Don't know why Casca would laugh, but at least it isn't a teeheehee thing.

Posted by: shelly on Oct. 31, 2005

Fucker, another year of trick or treating without a mask eh? hehehhehe

Posted by: Casca on Oct. 31, 2005

I've long suspected that Casca was a girl, the clues are all there. The Annika's Bitch thing, the laugh, ...

Posted by: shelly on Nov. 1, 2005