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Utterly unqualified analysis of the Miers nomination

OK, now that all the professionals have had their say about Harriet Miers' nomination to the Supreme Court, it's time for a rank amateur to step up to the plate.

First, when I heard that she was unmarried, I immediately flashed back to the Clinton administration and such notables as Janet Reno and Donna Shalala. I wondered how long it would take the Left to start calling her a lesbian. (I wish I'd been as quick-witted as some I heard on the radio, who speculated that Bush had done it "to get a date for David Souter.")

Next, I heard Bush's news conference today. His main rationale in asking for support for her seemed to be "trust me."

Mr. President, I've supported you on a LOT of issues. I've taken my share of crap about it, and I've never complained. But there are a few places I won't stick up for you. The first is your abandonment of the issue of border security. The second is your spending our money like a drunken Kennedy (but I repeat myself). And the third one is your judgment of other people.

To cite three examples: appointing Michael Brown head of FEMA without discovering he had padded his resume'; naming and keeping Leon Panetta (Correction: Norm Minetta -- thanks, numerous readers) on as Secretary of Transportation; and your saying "you've looked into Vladimir Putin's soul" and trusting him. Sorry, sir, but three strikes and you're out. I don't feel I can rely solely on your sense of personal judgment about other people.

The only way I can see myself applauding Ms. Miers' nomination to the Supreme Court is if she turns out to be what Ann Coulter called a "Potemkin nominee," a concept I inadvertently plagiarized when I suggested Ms. Coulter herself be nominated to fill Justice O'Connor's robes.

The idea of Ms. Miers taking this amazing opportunity to, in the true Born-Again Christian sense, "testify" and "speak truth to power" warms the very cockles of my heart, and would most likely radically energize both parties -- the Right, for seeing someone finally stand up and denounce some of the most contemptible people in politics today ("Senator Bird, please pick up the Whites-Only Courtesy Phone -- Senator Kennedy seems to have misplaced his car again, and needs a dry set of clothing"), and the Left for seeing Bush toss all pretense of "civility" and "decorum" and "resort to gutter politics" on one of the most serious matters about our nation's future.

For the very reason I would love seeing it, though, I can pretty much count on that never happening.

So I'm gonna just sit back and let other people kick around the Miers nomination, much like I'm taking a "wait and see" attitude towards the Tom DeLay mess -- but with a slight academic fascination, unlike my utter disinterest in DeLay's travails.


Listed below are links to weblogs that reference Utterly unqualified analysis of the Miers nomination:

» Conservative Outpost linked with The Miers Chronicles: 10/5

» Conservative Outpost linked with The Miers Chronicles: 10/5

» the Spanktuary linked with Conservative Compromised?

» The LLama Butchers linked with Wizbang on Meirs

» The LLama Butchers linked with Yeouch

» Conservative Outpost linked with The Miers Chronicles: 10/5

» Pajama Pundits linked with Okay, fine: Miers linkfest

» Wilson Fu Weblog linked with Miers

» Myopic Zeal linked with Miers: Bush’s Well Played Card?

Comments (41)

Never mind all that - which... (Below threshold)

Never mind all that - which was the winning caption from last Friday?

Isn't Norm Mineta Secretary... (Below threshold)

Isn't Norm Mineta Secretary of Transportation?

The wrong questions are bei... (Below threshold)

The wrong questions are being asked. The correct question to ask is: "Is Ms. Meirs CONSTITUTIONALY qualified for the position?" According to the copy that I keep handy, Yes. That is all that the Senate needs to know about this nominee.

Hush, Sarge. Nobody cares ... (Below threshold)

Hush, Sarge. Nobody cares about the Constitution anymore. It's much more fun to watch the Senate turn into a bunch of poo-flinging monkeys.

Isn't Leon Panetta the Demo... (Below threshold)

Isn't Leon Panetta the Democrat congressman from California that served as Clinton's Chief of Staff, among his other duties in the Clinton administration.

Besides that, I think Bush should get alot of credit for the people he chose to help him in his administration.

You can nit pick all you want about this person or that person or what Bush said about Joe Whocares. Remember, Bush inherited an economy quickly going into recession, fought a "war on terror", confronted the ChiComs, Koreans, Iranians, Set out the road map for peace in the Middle east ...... I can go on like this for a while and we are only in his first term. To be as successful as he has been you must have good people around you. Not everyone is up to par for the likes of other people but you will have to get over it or run for office yourself!!!

I support the nomination of... (Below threshold)

I support the nomination of Harriet Miers mainly on the strength of the NYT latest article. Having been affiliated with the fellowship of Christian Churches, checking out Valley View Christian Churches statement of belief, and seeing the reports of her private life within the church; I am beginning to believe she is a stellar choice.

Of course the MSM will try to use this very information against her.

<a href="http://www.whiteho... (Below threshold)

Bush Press Conference (October 4, 2005):

Q:Thank you, Mr. President. Some conservatives have said that you did not pick someone like Scalia and Thomas because you shied away from a battle with the Democrats. Is there any truth to that? And are you worried about charges of cronyism?
THE PRESIDENT: ...I picked the best person I could find...

Q: The issue of cronyism?
THE PRESIDENT: I just answered, I picked the best person I could find.

AD: Not credible. Strike four!

Q: ...So it seems reasonable that over the course of the years you've known her, perhaps you have discussed the issue of abortion. Have you ever discussed with Harriet Miers abortion? Or have you gleaned from her comments her views on that subject?
Q: But she is not someone you interviewed for the job that you didn't know. You've known her a long time. Have you never discussed abortion with her?
THE PRESIDENT: In my interviews with any judge, I never ask their personal opinion on the subject of abortion.

Q: In your friendship with her, you've never discussed abortion?
THE PRESIDENT: Not to my recollection have I ever sat down with her -- what I have done is understand the type of person she is and the type of judge she will be.

AD: Again, not credible. There's a bit of parsing and misdirection there as he plays the psychic with his divining rod. Foul tip followed by strike five!

Q: ...What do you say to these critics, specifically, and how can you convince them that she is as conservative as Justices Scalia and Thomas?
THE PRESIDENT: ...I'm hopeful she'll get confirmed, and then they'll get to read her opinions. And what I believe, and what I know is important, is that she doesn't change over the course of time. And had I thought she would change, I wouldn't put her on there... I don't have to guess and speculate about Harriet. I know her character, I know her strength, I know her talent, and I know she's going to be a fine judge.

AD: Um, wasn't she kinda liberal and then, after finding the Lord, switched 180 degrees on one of the most divisive issues in the country? Any chance she loses her religion and switches back? And we are to believe that this candidate is not prone to a wild swing or two?

Not credible. Strike six!

Sorry Mr. Bush. Any umpire would have tossed you from the plate a long time ago. How stupid do you think your constituency is?

Silverbubble, Over twenty y... (Below threshold)

Silverbubble, Over twenty years ago, I swore an oath to support and defend the Constitution of the United States from all enemies, foreign and domestic. I have yet to be released from that oath. I care about the Constitution. If you don't, then you are an enemy. Foreign or domestic, I don't care.

The more I read comments fr... (Below threshold)

The more I read comments from folks who know this woman personally, I become more and more convinced that she is a decent, honest and hardworking individual who spends almost no time tooting her own horn. Maybe she would be very comfortable putting the written law above her own beliefs. As part of my vast ignorance in judicial matters, I remain convinced that interpreting the Constitution should not be that hard.

To cite three examples: ... (Below threshold)

To cite three examples: appointing Michael Brown head of FEMA without discovering he had padded his resume'; naming and keeping Leon Panetta (Correction: Norm Minetta -- thanks, numerous readers) on as Secretary of Transportation; and your saying "you've looked into Vladimir Putin's soul" and trusting him. Sorry, sir, but three strikes and you're out.

Let's not forget the worst one of all: His recent nomination of Julie Myers to the U.S. Immigration and Customs Enforcement. She's never held a law enforcement position. Michelle Malkin called it "boneheaded."

As soon as the squawking st... (Below threshold)

As soon as the squawking started, I was reminded of another Supreme Court nominee who was criticized for having no experience and being unqualified, other than as a "crony" of two successive administrations. His name was John Marshall and he turned out OK.

If the founders had intended for Justices to be experienced judges, widely published and dogmatically opinionated law professors, or even lawyers, they'd have said so. They didn't. To question whether this woman is "qualified" reflects great ignorance of the constitution and the legal profession. I'd rather have a judge who had actually represented paying clients and handled real cases than a career judicial appointee any day of the week, and twice on Sunday. And a law professor? Oh, God save us from the all-knowing law professors who've spent their life thinking about the law and have no real experience or knowledge of how it's applied. By the standards of a practicing attorney, this woman is tremendously qualified. Go look at some facts about her, instead of playing echo chamber and repeating the nonsense others are spewing. Both Bush nominees have something in common: experience in the real world of how the law is applied, how it effects people's lives. Anyone who thinks the woman is "not qualified" is ignorant of what constitutes qualification, constitutionally and pragmatically.

Now if the real reason you don't like her is because you think she's not conservative enough in her views, GROW UP! First, if you're trying to select judges on their personal views, you're applying the wrong standard. If you think the only acceptable nominee is one who proclaims from the housetops that they will strike down Roe v. Wade, you're a fool. First, no competent candidate can make that blanket statement, and anyone who does will NEVER be confirmed. The extreme right did not elect Bush by itself. (It did almost elect Gore by sitting on its butt, and it did contribute mightily to reelecting Clinton in the same way.) Bush does not "owe" the right wing a supreme court justice. If in your myopic single-issue extremism you choose not to participate in future elections (or throw your votes away on third party candidates like Pat Buchanan) because Republican candidates are not conservative "enough" for you, fine. Perhaps you'll manage to help Hillary or John Kerry get elected. That is your right.

But don't hide your personal bias (yes, gasp! the right is, at times, every bit as biased as the left) behind baseless arguments about "qualifications".

If you'd like some informed commentary on the issue from someone who knows what he's talking about, check out Beldar. (Sorry, I can't lay my finger on the link at the moment, but I'm willing to bet there are other readers here who can quickly supply that link)

DaveD, go read it for yours... (Below threshold)

DaveD, go read it for yourself. The full text is on-line. Google it.

Hmmmm.I'm opposed ... (Below threshold)


I'm opposed to Miers for a few reasons.

1. I'm absolutely opposed to ANY "stealth" candidate. My conservatism is NOT something to be ashamed of. It's not a radical violent agenda. It is not a disease where I have to cant endlessly "unclean. unclean".

If the Republican party thinks conservatism is unacceptable or fringe, then I have no use for the Republican party.

2. There are many suitable candidates who have stepped up over the years and done their best to advance conservatism as an ideal as well as an ideology. To promote someone over them tells me that not only is being a conservative not acceptable to the Republican party, but that being visibly so is even worse.

3. I don't believe Miers is an acceptable candidate. The entire purpose behind the "advise and consent" rule was specifically to NOT allow Presidents to appoint political hacks and cronies.

4. President Bush, and the GOP, has garnered huge sums of money, an enormous amount of activism and votes from conservatives. We were promised a lot of crap, and crap is what we've gotten.

I for one will never vote for or support anyone related to Bush. Two of the bastards have been two too many. Jeb Bush or Shemp Bush or Curly Bush can all go to hell.

Hmmmm."As soon as ... (Below threshold)


"As soon as the squawking started, I was reminded of another Supreme Court nominee who was criticized for having no experience and being unqualified, other than as a "crony" of two successive administrations. His name was John Marshall and he turned out OK."

Stevens, Kennedy, Souter and O'Connor.

My four useless twits of a kind beats your one.

The Republican party does NOT have a good track record on this subject.


Ok here's a way I can accept Miers. Any politician or pundit that supports Miers, and Roberts while we're at it, does so publically. Then when, or perhaps if, they go all liberal then these people will be held to account.

If they are politicians, then they must retire effective immediately.

If they are pundits, then they go off the air or stop writing immediately.

Because none of those bastards that shoved Stevens, Kennedy, Souter and O'Connor down our throats has ever had to account for that bullshit.

Here are links to a couple ... (Below threshold)

Here are links to a couple of recent posts by Beldar.

RE: GeoBandy's post (Octobe... (Below threshold)

RE: GeoBandy's post (October 5, 2005 01:38 PM)
First, if you're trying to select judges on their personal views, you're applying the wrong standard. If you think the only acceptable nominee is one who proclaims from the housetops that they will strike down Roe v. Wade, you're a fool... If in your myopic single-issue extremism...

But don't hide your personal bias...

Your single-issue extremism charge is an empty one for quite a few of us. You probably assumed from my previous post (for example) that I was lamenting the lack of a certain pro-life position from Miers. That would be incorrect.

What this "conservative" wants is the contraction of the Federal government into my life in as many ways as is possible. I'd prefer that the jurists focus on the duties explicitly stated in the Constitution and nothing more. Let State supercede more and the individual even more. I do not want Miers following Bush's ever-middling style of "conservatism".

Further, while it would be nice to say that interpreting the Constitution is easy and that anyone can do it, that is much too simplistic. Time and men have created a Rubik's Cube of code and it takes great minds to coalesce the vast history of jurisprudence and winnow out the kernel that is true to the original document. I am not convinced that Miers is such a brilliant mind, or that because we have permitted lesser choices in the past that we should continue the risk, or even mistake.

At this point I have seen no litany of documentation or history from Miers that would support my "single-issue" nor do I have faith that the Senate will scrutinize her adequately on such matters. The GOP will follow Bush's lead due to political expediency and the Democrats will put up only enough challenge to appear contrarian but not enough to derail the nomination.

The donkeys are doing backflips on this one. What does that tell you? I'm aware of the Metroplex personalities who support her based on her government work in Dallas - NO conservative would want endorsements from such a clan. It would be like Cheney getting C. Rangel's, H. Dean's, or Cynthia McKinney's support. But hey, she might be a great uniter in the mold of Bush. Yippee.

Meanwhile, blind trust is expected from past supporters because of Bush's innate skills are the order of the day. Ha! Trust but verify would be more conservative only there will be little verification. She has a thin dossier, the President will will not release the full dossier such as it is, she will follow the Ginsburg/Roberts model of the non-answer answer during Q&A, and the Democrats will present little challenge. That is a recipe for failure, or at least a nice mix of proactive selective ignorance. That is a desirable outcome?

Time to revisit third parties again. I've "thrown my vote away before" and I'll do it again. Remember we deserve the government we get, so if campaign promises remain promises only, then don't complain when you settle for status quo.

Sarge, Silverbubble was bei... (Below threshold)

Sarge, Silverbubble was being sarcastic.

[email protected] GeoBandy</... (Below threshold)


@ GeoBandy

"If you think the only acceptable nominee is one who proclaims from the housetops that they will strike down Roe v. Wade, you're a fool."

The only fool here is you.

I frankly don't give a rat's ass about Roe v. Wade.

My concerns are simply stated, and have been repeated endlessly here on this blog so I won't repeat myself yet again. If you want to read them, search for them.

The simple fact is that even if you assume that Roberts and Miers are both solid constitutionalists, it still doesn't matter. At best it's still a 5-4 court with confirmed liberals in control of the court. In order for this to shift, one of the newest "conservative" members of the court is going to have to convince an established *liberal* member of the court to change his/her mind.

I don't see Roberts doing this.
I most definitely don't see Miers doing this.

So it really doesn't matter if Miers votes substantially conservative. Just as it didn't matter that Scalia or Thomas voted conservative. Because without a majority it's all bullshit.

And what happens if Roberts or Miers turns out to NOT be conservative or a strict constitutionalists? Well then we're right back into the shithole looking at another 30 frigging years of liberal domination of the Supreme Court.

Frankly if all you can do is repeat Beldar, then there's no point in discussing anything with you. If I want to read Beldar, and I often do, then I'll go read him.

ed:What concerns y... (Below threshold)


What concerns you about Roberts?


I agree with much of what you said. However, I remain concerned that Miers is not the MOST qualified candidate. Yes, she's been successful in private practice, and that is important to me. However, people with her degree of success are a dime a dozen.

She may turn out to be perfect, but we know little about her except for her resume. Her resume is above average for someone of her age, but far from exceptional. In fact, it's typical of every senior partner in every medium to large law firm in the US. In other words, she is one of tens of thousands just like her.

She went to a second tier law school and she was not at the top of her class. She did a judicial clerkship which is good. She did well in private practice, but her law firm was not the most prestigious and her practice was not the most sophisticated. She was a managing partner at the firm, which is a position usually taken by someone who is not a stellar lawyer, but has a temperment more suited to counting paper clips and negotiating for better rates in the firm's parking garage. It does not appear that she's argued before the Supreme Court.

The most impressive part of Mier's resume is that she got the gig representing the President of the United States. That is impressive, and is the only thing that seperates her from the rest. However, that's not necessarily a great endorsement of her abilities.

Miers ain't no Roberts; they're not even in the same league. She may be qualified, and she may do fine, but it's impossible to claim she's the MOST qualified until we know more.

For the thin-skinned out th... (Below threshold)

For the thin-skinned out there, if the shoe fits, wear it. If it doesn't, then I'm really not talking about YOU, am I?

There is no requirement that a President nominate the "best" the "most qualified" the "most experienced".

The Constitution obviously, by what it doesn't say, leaves the President free to pick anyone he wants. The only restriction is that it is someone the Senate approves of.

Maybe it's time for a President to try picking someone he actually KNOWS, instead of some Souter off a list who fits certain "qualifications" and does ok in an interview.

As to qualifications, let me say this: I'm not the least bit impressed by WHERE somebody went to school, or whether they wrote for law review, or any of that other academic crap. Some of the dumbest asses I've ever encountered had all kinds of those credentials. Law professors don't impress me, either. Lawrence Tribe and his ridiculous "tacit postulates" is what "top tier" law schools get you.

My point is, people claiming she's "unqualified" are full of crap, particularly those who are using the claim to hide the real reasons they're dissatisfied with the pick.

She is, from all appearances, at least as "qualified" as Marshall or Rehnquist.

IF you don't like the pick for whatever reason, say so, but don't keep throwing around "unqualified", because that simply is not true.

Hmmmm."There is no... (Below threshold)


"There is no requirement that a President nominate the "best" the "most qualified" the "most experienced"."

The Constitution of the United States of America doesn't require Bush to do anything.

I, the damn voter, DO.

There's a difference between the two which should be so apparent it shouldn't require me to outline it for you.

Hmmm."What concern... (Below threshold)


"What concerns you about Roberts?"

My issues with Roberts:

1. There is absolutely NOTHING in his background that informs me this guy is actually a conservative. For all I know, for all you know, he could be an out and out liberal that's been playing at being a conservative.

A rational analysis would show that the best possible way of becoming a Supreme Court justice is to clerk for a Republican judge, work for a Republican President and offer nothing that could be used against you in a nomination fight.

That's Roberts.

2. Roberts has done nothing in his life to promote conservative or constitutionalist ideals. All the various issues and items pointed to by supporters were done as a lawyer representing Republicans and/or conservatives. I.e., as Roberts himself testified, those labors were on behalf of a client and did not necessarily represent his own views.

3. Roberts has NEVER done any work voluntarily for or to support a conservative cause. If pro bono work is a possible example, then Roberts fails miserably since he has NEVER done any pro bono work for any conservative issue, group or cause.

4. Roberts HAS done pro bono work for many liberal groups and causes.

5. My conservatism is nothing to be ashamed of. I am damn well not going to walk around shouting out "unclean. unclean." like some damn political leper. As it is the Republican party, and this administration, treats confirmed conservatives as if they were lepers. Look at the confirmation process for those poor bastards stuck at the federal level.

Conservatism is a popular and growing movement in America. Conservatism isn't a radical violent movement looking to kill people. Yet conservatives are getting treated as if we were jihadists. Something to be swept under the rug and hopefully forgotten.

6. Bush promised conservatives he'd appoint strict constitutionalists. He has not provably done so. For all we know Roberts is a closet Souter. We just don't know. But there are plenty of people whose judicial views are EXTREMELY well know and who are not ciphers. Any one of them would have been suitable had Bush had the inclination and the GOP thought a conservative worth fighting for.

But neither Bush nor the GOP do think conservatives are worth fighting for.


I've lived through many numerous empty promises. Souter. Kennedy. O'Connor. Stevens.

The Republican party and Bush don't get my trust because they have NOT been worthy of that trust in the past. And if they're wrong, yet again, then we're stuck for another 30 years.

I.e. I'll be dead before anybody has a chance at reforming the court again.

GeoBandy,You're ri... (Below threshold)


You're right; the Constitution does not require the "best." But do we need a consitution to tell us we should always strive to pick the most qualified? That's kinda silly, in my opinion. Before you flame me, "best" should be based on the totality of the circumstances and not purely academic by any means.

I agree that we don't want professors, and I agree that some of the dumbest asses I've encountered have all the right law school and law review credentials. Also, some of the brightest I've encounted have those credentials as well. Some of the brightest don't have those credentials, too.

I'm just saying that all we have at this point is a resume. Based solely on that, she is no star. She may turn out to be a star based on information unknown to us at this point.

Whether the Constitution requires it or not, I would like to see a star on the court. Who in their right mind would want anything less?

ed:Do you make a d... (Below threshold)


Do you make a distinction between judicial conservatism and political conservatism? In other words, are you seeking a judge with political, economic and socially conservative personal values, or are you seeking a judge who is conservative in the sense that he will stricly construe the constitution while also harboring a healthy respect for stare decisis? I'm just asking because a judicial conservative will often stand in the way of socio-politically conservative results.

Your concerns about his pro-bono work are possibly misplaced. By its very nature, pro bono work tends to be very liberal in nature. Regardless of how conservative a lawyer is, he or she cannot rise to his stature without a healthy diet of liberal pro bono work. His feelings that those of us who can help ought to help are unlikely to be translated into unsound rulings.

In my view, Roberts seems pretty conservative. Perhaps not as conservative as you would like, but he's on our side nonetheless. I am comforted by his brilliance and his discipline, and I think he's the perfect choice to be the Chief. I could be wrong, but it is too soon to know that.

RE: GeoBandy's post (Octobe... (Below threshold)

RE: GeoBandy's post (October 5, 2005 04:13 PM)
There is no requirement that a President nominate the "best" the "most qualified" the "most experienced".

Heh. While true, is that the standard to which one should aspire? I can hear it now. "I'm appointing a ho-hum nominee because I can. So, pffft to all of you."

The Constitution obviously, by what it doesn't say, leaves the President free to pick anyone he wants. The only restriction is that it is someone the Senate approves of.

Yes. The nomination process is, so far, Constitutionally valid and will reach a conclusion. I just kinda hoped it would be populated with the best this country had to offer.

My point is, people claiming she's "unqualified" are full of crap, particularly those who are using the claim to hide the real reasons they're dissatisfied with the pick.
She is, from all appearances, at least as "qualified" as Marshall or Rehnquist.

Let's qualify the qualifications. Biographies of selected supremes pre-Supreme Court:
Marshall - Pedigree of activist heritage; helped draft the constitutions of African nations; multiple Supreme Court challenges to state-sponsored discrimination; U.S. Court of Appeals for the Second Circuit with zero majority decisions reversed by the Supreme Court; U.S. Solicitor General; represented and won more cases before the United States Supreme Court than any other American.

Rehnquist - Master's from Stanford and Harvard; Valedictorian of Stanford Law School (ahead of O'Conner); clerk for Justice Robert H. Jackson; private practice for 16 years; Assistant Attorney General of the Office of Legal Counsel.

I do not consider Miers an equivalent peer based on common metrics of evaluation. Now, if you want to change the traditional scales, then she may be brilliant. I understand cronyism is in vogue so some might proffer that one.

IF you don't like the pick for whatever reason, say so, but don't keep throwing around "unqualified", because that simply is not true.

I have. I do not like this nomination for many reasons, the most egregious I mentioned earlier. She is qualified inasmuch as she is a human, and a very decent one at that, who knows the President, who keeps a very low profile to the point of having a minimalist paper trail, who thinks Bush is the most brilliant man she has ever met, and who underwent a dramatic philosophical shift in the not too distant past. Color me unimpressed despite my full-of-crappedness.

AD,Good post, but ... (Below threshold)


Good post, but I think GeoBandy was talking about JOHN Marshall, not Thurgood Marshall.

Of course, the world was a little different back in the late 1700's, so John Marshall could not have earned even Mier's resume before his nomination. After all, there are far more law schools and judges in Los Angeles today than there were in all the colonies/states combined during Marshall's time.

Check out this bio of John ... (Below threshold)

Check out this bio of John Marshall:


People used to spend their time thinking and writing back then. Both were lost arts for far too long, but I've gotta credit the Internet and blogs for sucking people back into both disciplines. Seriously, who thought about issues outside their school or work, and spent any time crystalizing them in writing before email and blogs hit the scene? Very few.

Mark,Thanks for th... (Below threshold)


Thanks for the clarification and the link to the other Marshall. John Marshall never occurred to me. I agree with your point about historical perspective. Comparing a justice and the educational system/professional prep of the last 50 years to that which existed 200 years ago is quite different indeed. Comparisons between justices should be considered within the context of their contemporaneous peers.

The lost arts to which you refer have indeed been given a boost - by blogs particularly. The opportunity for such endeavors is infinitely more available whether we use that opportunity wisely or not. The fact that we even have time to entertain such a luxury is a tribute to modern civilization and the success of our democratic model.

Conservatives all in a snit... (Below threshold)

Conservatives all in a snit. Tsk Tsk. We have been saying that Democrats should support the president's nominees, barring some compelling reason not to (such as unethical conduct), because they are his choices and reflect his presidential prerogatives. Ideology should not matter. This is the Ginsburg model.

But now that the President has nominated someone that many conservatives do not trust ideologically, they are not even willing to practice what they preach. It is hypocrisy, pure and simple. The president's choice should be supported on principle. Miers is well qualified and fits the mold of many previous justices. There is no reason not to support her.

Jeff B.:I agree wi... (Below threshold)

Jeff B.:

I agree with you insofar as POLITICAL ideology should not matter. And, I agree that the right of center are being hypocritical, especially in light of all we've been spouting about the moronic wing of Dems who voted down Roberts.

However, I think some reassurance that the candidate is 1) bright enough, and 2) subscribes to some mainstream tenets of constitutional construction, are in order. I'm pretty confident that both will be satisfied, but there is no objective evidence to corroborate that. YET.

Dim or activist judges (they tend to overlap) are rotten, regardless of whether they're conservatives or liberals. One problem with my side of center is many conservatives think only liberal judges are activists, and the Constitution-bending conservatives are "strict constructionists." In reality, what many conservatives really want are activists, but they don't have sufficient familiarity with constitutional law to know that's what they're asking for. There is a difference between judical conservatives and political conservatives.

Obviously this is my opinion only, and I don't pretend to speak for conservatives as a whole. Considering this is Wizbang, I'm sure to get flamed by all the e[E]ds, etc. Oh well.

[email protected] Mark... (Below threshold)


@ Mark

"Considering this is Wizbang, I'm sure to get flamed by all the e[E]ds, etc. Oh well."

Condemned even before I get a chance to reply?

You're not worth my time.

Ah ed, you're the good one ... (Below threshold)

Ah ed, you're the good one (as opposed to "Ed").

But be honest. Don't you have a problem with some of the stuff I said above? You must.

I am still curious as to your thoughts on the distinction between judicial conservatism and political conservatism.

Jeff Blogworthy:Ra... (Below threshold)

Jeff Blogworthy:

Rather, the reality is that SOME conservatives are all in a snit, not conservatives in general, as in, all of us. Just some of them.

It's called human differences among individuals.

Until some horrid issue comes along about Harriet Miers, I can't see rushing to denigrate the woman based upon personal and possibly imagined fears.

I also don't see anything about her nomination as indicative of Miers as a "crony" other than she is someone well known to Bush in a professional capacity. However, she does have a degree in law so it isn't accurate to suggest about Miers that she's nominated as a crony (suggesting she's not qualified otherwise, beyond a social connection with her nominator). In which case, I'd prefer Bush nominate someone he knows well rather than someone he knows not well, or not at all.

There IS, to my view, a lot of elitism at play here in the negatives as to Miers, most of it all based upon a variation of the same theme and that is that Miers isn't grand or grandiose or illustrious or "big" enough to qualify for the Supreme Court, that a nominee be someone so big in their personality that they'd be able to manipulate and forcefully influence existing S.C. judges of the liberal kind as to future decisions.

In which case, who is to say that Miers' dutiful, humble and moreorless quietly resolved nature will NOT be influential? I mean, the assumption about her that she isn't going to be or is not now forceful or influential enough to qualify is not sensible to my view, and more than that, it isn't even Constitutional.

If I was going to be positive about the naysaying conservatives about Miers, I'd think that perhaps they're attempting some sort of counter influence on the Democrats in the Senate. By appearing as if Miers is a problem to conservatives, that that might therefore suggest to liberals in the Senate that they should approve her nomination to the S.C. if to rankle conservatives, that by some conservatives disagreing with her nomination, the Democrats should go ahead and confirm her (whatever conservatives oppose, is the point here, the Senate Democrats will use as their barometer of what they should endorse).

At least, it's a theory. Because, after reading the comments by some who are ardent Miers' oppositionists (Grover Norquist, for starters), they aren't making any sense beyond an elitist demand for some sort of "pay back" by Bush in this nomination. I can't see that he hasn't done that, is something to consider, but Norquist's opposition to Miers suggests to me a higher degree of emotionalism about this that makes any objective sense. It's shocking.

I rather like Miers' "ordinary person" qualities and unless she is revealed to have a substandard I.Q. or something else similarly limiting her ability to perceive and reason, she's at least worth considering first before she's dismissed.

I do agree that the S.C. membership SO FAR has had the ability to make liberal those who are conservative going into the membership and there certainly is something to be said about THEIR form of elitism, in which case, nominating and confirming yet another elitist to the existing group would only make the problem worse. At least Miers isn't that. So, I still say that it's best to see how she does in the Hearing process and take it from there.

Only the first part of abov... (Below threshold)

Only the first part of above comments (^^) are in any relationship to anything Jeff Blogworthy wrote earlier. The largest portion of the comments are about the Miers' nomination, in general.

Another thing to consider h... (Below threshold)

Another thing to consider here is that Ginsberg is not long for the S.C., given her age and emerging loss of vitality (in appearance, I can't speak as to her medical record), along with another who'se not looking to possess too much vitality for too longer.

So there's very likely to be another TWO replacements for the S.C. soon, after Miers' (or the seat that Miers has been nominated for).

Hmmmm."But be hone... (Below threshold)


"But be honest. Don't you have a problem with some of the stuff I said above? You must."

Here's the deal.

I'm not a single issue person. If I had a single issue it would either be fiscal responsibility by the government, personal responsibility by individuals or gun rights/2nd Amendment. But I don't. I don't have an oar in the Roe v. Wade fight. I don't care for abortion, particularly since I'm one of those out-of-wedlock kids that tend to be aborted frequently, but I'm not willing to turn back the clock to side alley abortionists. Anyone who thinks eliminating Roe v. Wade will result in pretty ponies dancing in the moonbeams, has got a screw loose.

What do I want in a Supreme Court justice?

I want someone who will rule on the Constitution and not some lame brained interpretation of it. I want someone who won't go to another country's legal system to justify a ruling here. America is bound by the US Constitution and it should not be bound by some jackass interpretation that's convenient for an activist judge. I want a judge that is capable of standing up for the Constitution against all comers. Who can stare down anyone and who can offer the necessary arguments to prop up the Constitution against all of those endless assaults.

Anybody remember the Michigan Law School case? Justice O'Connor had the swing vote and acknowledged that diversity rules are in fact unconstitutional, but that since they offset an old wrong they were ok for a little while longer. WTF? And O'Connor was appointed by Reagan! And we're seeing the same damn shit happening now that we saw happen then. The same lame ass pundits are telling us NOW that she's wonderful.

I'm not white, I'm Asian. Born in South Korea, adopted at age 6 and immigrated to New Hampshire unable to speak a word of english. I believe in America because it works. I've accomplished a lot in my life and enjoyed almost every single minute of it. I know, as an Amer-Asian child, that my life would have been utter shit in South Korea had I been left there. And it really fucking pisses me off when people screw with my goddamn Constitution.

I don't expect every ruling to be what I want. It's not about what I want. It's about the Constitution. And I am utterly unconvinced that Bush knows his ass from his elbow. Not once has Bush been right when he's asked us, explicitly or implicitly, to trust him. Just name me one f-ing time when Bush has been right when he's asked his base to support him? Just one!

And this isn't some stupid budget. This is for the next thirty years or more. Even if another justice or two steps down in the next few years, there's no guarantee that the GOP will be in power. There's no guarantee that the NEXT Republican President won't do the same damn thing.

I don't necessarily care if Miers is conservative or not. I want a conservative because at least then I'll know that this person will rule from a basis of reality rather than wishful thinking. But we don't know a goddamn thing about her. We still don't know a damn thing about Roberts. He may work out. She may work out. But we've got 30-40 YEARS to go and if one of them changes, then we're all fucked all over again.

I've lived through so many freaking Supreme Court nominations and they've all been utter crap. The Republican party does not have a good track record. Certainly not good enough for me to "trust" them. I've supported Republicans for abotu twenty-five years now and I've got nothing to show for it. Conservatives like to mock African-American voters as being "captured" by the Democrats. Well they've certainly gotten a helluva lot more out of the Democrats than conservatives have out of the GOP.

Does that answer your question?

Could Miers work out? Sure. Could Roberts work out? Sure. Could the Easter Bunny exist in a happy land of rainbows? Sure. Anything is possible. But without a long paper trail there's no way to know.

And this crap is too damn important to not know.

ed,Thanks for the ... (Below threshold)


Thanks for the response! I agree with most of what you said, but I'm not as angry/fed up with the Republicans as you are (yet). I certainly have a much better feel for where you're coming from now, and I'm glad you took the time to explain it.

"I want someone who will rule on the Constitution and not some lame brained interpretation of it."

On this point, we have a different perspective. Of course I don't want "lame brained" interpretations, but some interpretation is inevitable. The Constitution was drafted with intentionally open ended and undefined terms and phrases so it can adapt to changing times. The role of the court is to fill in the blanks based on its interpretation in light of the times. Terms like "due process" cannot be dealt with by looking only at the four corners of the constitution. Similarly, "equal protection." There are hundreds of vague, ambiguous, and compeletely undefined terms in the Constitution that comprise a huge segment of constitutional law. Without some good, healthy interpretations, these terms would be completely meaningless. I'm sure you are fully aware of this, but from the writings of others it appears many are not.

I think the real issue is not interpretation versus no interpretation, but how far justices are willing to torture their interpretations to suit a political agenda. I feel comfortable with Roberts on this. Time could prove me wrong, but I hope not.

I don't know jack about Miers, but I'm beginning to suspect she's one of those who might torture her interpretation to suit a very socially conservative political agenda. If what we're hearing about her being a born again Christian, born again conservative, etc. is true, and if she's not the sharpest legal knife in the drawer, then we could see some conservative activism. I hope that's not the case. I want NO activism, whether to the left or right.

I doubt we'll ever know anything about Miers. All her work for Bush is protected by the attorney/client privilege. Like Roberts, she'll rightly say that her entire body of work in private practice was done in the context of advocating her client's position, and not her own personal views.

Hmmm."I want NO ac... (Below threshold)


"I want NO activism, whether to the left or right."

Absolutely correct.

Anyone who can rationalise being an activist on one issue can also be an activist on other issues. In politicians and regular folks, this isn't a negative. In a Supreme Court justice, this is abhorrent. My real fear is that Miers is a single issue conservative. That she's conservative when it comes to abortion, but liberal on every other issue. To work so hard, to come so far and yet to seemingly fail at this juncture. It's aggravating beyond measure.

As for interpreting the Constitution. I agree it must be interpreted to be useful. However what we've seen is a gradual shifting of the Constitution's intent by a culminating series of interpretations. Each successive interpretation shifts the Constitutional viewpoint by a fraction. And yet those fractions add up and in the end results in a perversion of that very document.

I do not believe in this president. I do not believe in the GOP. I do not believe that any sort of judicial reform has happened, or will happen.

RE: Mark's post (October 6,... (Below threshold)

RE: Mark's post (October 6, 2005 11:21 AM)
I doubt we'll ever know anything about Miers. All her work for Bush is protected by the attorney/client privilege. Like Roberts, she'll rightly say that her entire body of work in private practice was done in the context of advocating her client's position, and not her own personal views.

And doesn't this spook the heck out of you? I don't believe that she will be adequately vetted in front of a demanding public because, well, not enough regular folk are demanding or pay attention to such things. It's inside ball where too many feel detached and have the every day with which to deal. Furthermore, the MSM will likely perpetuate only the Roe-vs-Wade meme and, for all intents and purposes, ignore the zillions of other issues with greater impact on our lives. Worse still, I suspect the Senators are wholly driven by politics and decide their vote before asking a single question. The Q&A is just a show to reinforce through well parsed and designed questions a particular, preconceived ideology. Remeber, they are by and large lawyers who are used to setting questions up while already knowing the answer. I guess the one consolation is that Miers is such a question mark that maybe they will have to think on their feet.

Nevertheless, knowing that any truly insightful questions of specific pertinence will be met with muted retort will not shed any light. Files, briefs, and memos will be minimally presented under the guise of priviledged info. Her most impactful advice is wholly attributed to ONE client, Mr. Bush, who has the most extensive clout to protect his legal work. I am not encouraged.

Roberts did follow the Ginsberg model (the precedent that will persisit for the rest of time it would seem) and limited his exposure. I understand the rationale and accept it to some degree. The difference, however, with Roberts which I do not expect from Miers is the amazing grasp of law. Without knowing the ideology of Roberts, I am unflinchingly respectful and cognizant of his legal skill and temperament. He reminded me of a Rumsfeld with manners and deference... a scholar with infinite grasp of law, even to the minutiae, unending patience, calm demeanor, and the wherewithall to explain a position clearly and concisely. His presentation was the most impressive I have ever seen. Even if our ideologies fall on different sides of the aisle, I'll know that he is more correct in Constitutional matters than me. That is comforting despite any misgivings I might have to philosophy. If Miers is half as capable in her presentation, it will be a triumph.

ed:I don't think I... (Below threshold)


I don't think I'm as pessimistic as your last sentence suggests you are, but I definitely hear where you're coming from. The burning question in my mind is this: What are our alternatives? I shudder to think where we'd be if Kerry took Ohio.


Yeah it spooks the heck outta me!

I agree with your post, and I love the paragraph about Roberts. Well put!

Since the writers in this t... (Below threshold)
grumpy old fart:

Since the writers in this thread seem to feel Iraq is going swimingly, that enormous deficits are ducky and that torture is a great American value, I can't see their concern over another unqualified crony being put in power. I mean, she is "born again", so I imagine she'll just listen to the voices in her head and do what God tells her, no?






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