I took exception to the way Harriet Miers was being treated after being nominated to the position of Associate Justice of the Supreme Court.
The email I wrote to the Conlawprofs listserv, with some of the earlier email on the subject is here:
***
Granted that conservatives and libertarians are getting a pig-in-a-poke,
probably because neither the president nor professional vetters have
questioned Miers on all the issues of interest to date; she could be
another Blackmun or Souter, which may help explain the silence from the
Dems or the left as they watch this nomination tear apart the right.
The one thing Miers has been smart enough to do is NOT to have left a
paper trail by which she can be torn up. The pap she submitted as Texas
Bar president is consistent with this. She had to write something and
not offend thousands of Texas lawyers, so she fed them pablum. If she'd
actually expressed herself on an issue, she'd have driven half off the
reservation. That's not the Bar president's job.
As far as expressing herself on a real issue as a prospective justice,
my guess is that Miers can probably do that without too much
difficulty. SC opinions are corporate products, which is why they look
better than what students write in blue books, or professors in the
manuscripts they hand in to lawbook publishers. Years ago, waiting for
bar results, I worked as a checker for the California C.E.B. (U.C.
Berkeley's lawbook publishing arm) where I had the dubious pleasure of
reviewing law professor submissions, which weren't pretty. They were
returned with innumerable post-it notes challenging this and that. The
editorial staff helped plenty. I doubt the Texas Bar letter she wrote
enjoyed such a process, or needed to. Miers' intent was probably to
offend no one by taking no side except what all could agree on, which
explains why she blunted every point. That kept her out of trouble in
Texas, but hurt when David Brooks held it up to ridicule.
Let me state, since it seems to be easy to mistake posters' positions on
a list, that I'm not a fan of either this administration or this
nominee. My position is that much of the criticism of this nominee
doesn't strike me as being particularly fair in any neutral or objective
sense. As political polemic for partisan purposes, one way or the
other, it may be telling, but hardly fair or impressive otherwise.
There seems to be a view that justices need to be cut of better cloth
than the rest of lawyerkind. I doubt that's true. Miers passed the bar
and practiced with some success; a lot in fact, as lawyers go. So, as
long as the gene pool for justices is restricted to lawyers, she seems
to meet the qualifications. As to what her general predisposition and
attitude are on the issues of the day, she's so in Bush's camp that it's
probably correct that he couldn't have found a better nominee for his
purposes than Miers.
Miers is being condemned for not having left a paper trail on which to
be hanged, whereas if she had made the political mistake of having left
such a trail, she'd be condemned for that, with much better reason. I
don't think the right or the left is entitled to have it both ways, to
condemn those who had the temerity to take positions, and to condemn
them for when they didn't. It seems the ultimate cheap shot, not
improved by dressing up the critics as national columnists, organization
leaders, or law professors. All either side is left with is the
hearings at which, as Chief Justice Roberts recently demonstrated, the
best position is to leave things as mysterious coming out as they were
going in; otherwise you don't get confirmed.
Which is it, left and right, damned if you do and damned if you don't?
No wonder the game playing in the hearing. First we force it, and then
we condemn the player for playing it.
I say the blame is on the observer, not the player in a rigged system
such as this.
People like Roberts and Miers then bear the brunt while others opt out
of the game entirely.
The rest of us have a choice. Given the lotto-like chances against ever
being in the position to have to appear before the SJC in the first
place, the choice is to use the FA to speak up on issues, and reveal
oneself as a person with views on issues, or to play the milktoast role
out of fear that if tapped, one will have self-disqualified by having
spoken out.
This is a helluva stacked game.
I'm not impressed by Miers, but I give her credit for having avoided
self-disqualification by ever having publicly taken a position on
anything other than being identified with GWB, which wasn't exactly an
unintelligent choice in terms of professional advancement.
rs
sfls
i.s. wrote:
I'm skeptical that Bush has over the years
discussed the full range of key con law issues with Miers and learned
her views on them. Just being vaguely conservative in overall ideology
is not necessarily enough. After all, that could be said of Blackmun,
Souter, etc. at the time they were nominated.
I don't agree that voting is all that's really important in the job
of Supreme Court justice. It also helps to be able to justify your
decision in a way that will constrain lower courts and create a
persuasive precedent.
But even with respect to voting, Miers' record raises troubling
questions for conservatives and libertarians, as others on this list
have detailed.
I.S.
Assistant Professor of Law
Subject: Re: Vetting process on Miers
i.s. wrote:
"...
We should not hold Bush's relative ignorance against him; a
president should not be expected to be an expert on con law. We
should, however, expect a president lacking such expertise to to
recognize this shortcoming and seek appropriate advice from those
with greater expertise (to avoid misunderstanding, I emphasize
that I don't necessarily mean academics). At least based on Fund's
evidence, it would seem that Bush failed to do so here. "
***
I don't quarrel with the point that Bush might've vetted further
by consulting experts in Con-Law. My question is, what would he
expect to learn? Is there a correct way to perform Con-Law at the
Supreme Court level? Wouldn't Bush be entitled to assume that if
he nominated a loyal supporter with whom he worked and and knew
well as a conservative in politics, religion, and law, a lawyer
with some familiarity with the issues that exercise the left and
right today, and have for the past thirty plus years, that she'd
vote the way he and his supporters think right most of the time?
Byron White used to say that it took about five years for a
justice to go once around the track. In five years, why wouldn't
an intelligent lawyer learn the ropes? After all, she's got all
these professors to tell her what she should do. She can read the
briefs, pick her outcome, and her reasons, and set them forth.
Between what she writes and the editing process, what will emerge
is something that looks like the general run of SC opinions. If
she doesn't write like Cardozo, Holmes, Brandeis, or Jackson, so
what? None of the others do either. All she has to do is vote,
not make it look pretty.
rs
sfls
Well-connected conservative WSJ columnist John Fund recounts the
severely flawed vetting process that led to Miers' nomination:
I don't know, obviously, whether Fund's account is accurate. But
if it is, I think it severely undermines claims that we should
"trust" Bush's judgment on Miers' qualifications and how she will
vote, as Miers was not apparently not vetted by anyone with
expertise in constitutional law or other major issues the Supreme
Court deals with. Instead, the decision was made primarily by Bush
and Andrew Card, based on personal acquiantance with Miers.
Whatever we might think of Bush's ability to judge character (and
given his remarks about the sterling qualities of ex-KGB honcho
Vladimir Putin, I wouldn't be too confident even here), he is not
an expert on constitutional law and is not qualified to assess
Miers' abilities in this area without at least some expert
assistance.
We should not hold Bush's relative ignorance against him; a
president should not be expected to be an expert on con law. We
should, however, expect a president lacking such expertise to to
recognize this shortcoming and seek appropriate advice from those
with greater expertise (to avoid misunderstanding, I emphasize
that I don't necessarily mean academics). At least based on Fund's
evidence, it would seem that Bush failed to do so here.
I.S.
Assistant Professor of Law