Saturday, October 8, 2005
my parents, my brother, and I arrived in the U.S. As you might gather, October 8 (and June 13, the day in 1975 that we left Russia) is a big day in the Volokh family year.
Here's my tentative thought, if you'll let me paint with a broad brush. As with any credential, the ultimate issue is the person, not their jobs. It's easy to read too much into any one experience: We naturally tend to assume that someone who has had a particular experience is "that type" of person. With that said, my instinct is that extensive experience as a law professor probably isn't very good training for service as a Supreme Court Justice.
Here's my thinking. As most practicing lawyers know, academia can be a little bit, well, quirky. Law professors generally are rewarded for being clever, or for catching a wave of fashionable ideas and writing a lot about them. Within the academy, it's frequently better to be gloriously wrong than modestly right.
In my opinion, the qualities of a good Justice are very different. I side with Learned Hand on this one: "The spirit of liberty is the spirit which is not too sure that it is right." Being fashionable, exceedingly clever, or gloriously wrong aren't assets for judges. The case of Yale Law professor William O. Douglas illustrates the problem. Douglas was brilliant, and a very successful academic as an important figure in the legal realist movement of the 1930s. But those qualities didn't translate well into being a good Justice. His opinions are bold, but also sloppy and frustrating; If you're trying to make sense of an area of law, you hope that the key decision in the field isn't a Douglas opinion.
That's my tentative reaction, anyway. As always, actual mileage may vary: As I said, what matters is the person rather than the credential. Some academics are influenced by this environment more than others, and some have made terrific judges and Justices. But as a rule, I'm not sure that lots of time in academia is the best credential for a Supreme Court Justice. (Oh, and for any law professors reading this, please understand that I think you would make a simply wonderful Justice. It's the other professors that make me worry.)
Sean Rushton, executive director of the Committee for Justice, said generating enthusiasm for Ms. Miers was proving difficult because "anytime we put out something positive about her it gets shot to pieces by all our allies and the blogs."The same article has an interesting discussion of Harriett Miers meeting with Senate Judiciary Committee Chairman Arlen Specter:
Several Republicans, including Mr. Specter, said they steered clear of asking Ms. Miers questions about constitutional law. Mr. Specter, who said the timing of the confirmation hearings would depend in part on when Ms. Miers feels ready, said he initiated a discussion of the shifting standards the Supreme Court has applied in interpreting the Commerce Clause of the Constitution, but only to illustrate to Ms. Miers the kinds of questions she would face during her hearings.
"I did not ask her about it because I don't think she's ready to face it at the moment," he said. "Look, the lady was White House counsel dealing with totally other subjects until Sunday night when the president offered her the job. And Monday she's sitting with me. I'm not going to ask her questions which she hasn't had a chance to study or reflect on."
. . . Too often, this Administration, prominent nominees, and even Federalist Society members nominated for important positions in government have treated the Society as if it were something out of "The DaVinci Code", or the ultra-secret gaggle of powerful reactionary Rasputins that some on the left imagine, or just a goofy band of train-spotters. In my view, this Administration and the conservative Senators, who owe the clear thinking and dedication to the rule of law of their best staffers, lawyers, and advisors in no small part to the Federalist Society, have an obligation to stop this silly "Federalist Society? Never heart of it!" pose, and forthrightly to endorse, defend, and praise the Society.
The Federalist Society has been — as many honest, left-leaning law professors would concede — an immense benefit to the intellectual culture and the jurisprudential debate in our law schools. It has supplied countless thoughtful, intelligent, conservative lawyers to the bench, the academy, the bar, and public service. It has provided an invaluable forum for a genuine exchange of ideas, and also some accountability for the American Bar Association and the American Association of Law Schools. Its events, debates and panels are always diverse and provocative. . . .
Just as important, the Federalist Society has provided, in no small part, the intellectual heft for a large part of today's conservative movement in politics. For an Administration that owes its existence to this movement to, time and again, treat the Society like a goofy yearbook photo or an embarasing secret is more than irritating — it is shameful. If the Federalist Society really were a politically useful but in fact weird and non-mainstream outfit, then perhaps the "Fed Soc? Who?" attitude would be understandable. But, if course, the Society and its ideas are — among informed and thinking people, anyway — entirely respectable and, while certainly conservative, entirely "mainstream."
If Ms. Miers really does harbor the tiresome, skittish, establishmentarian, protect-the-guild wariness toward the society described in the accounts mentioned above — rather than respect for its work, admiration for the vision of David McIntosh, Steve Calabresi, Spence Abraham, and others who founded the Society more than 20 years ago, and gratitude for the dedication of hundreds of law students today who often take real hits in order to stand up for and strengthen the Society and its intellectual mission — then I am inclined to think that she has not earned (no matter what church she attends, no matter how good a person and impressive a lawyer she is, no matter how much she abhors abortion, no matter how loyal she is to this President, and no matter how Rehnquist-like her record turns out to be) conservatives' support.
Many of my students have worked very hard and sacrificed time for the Federalist Society. In so doing, they have improved their law school and the education of their classmates. (It's worth noting that left-leaning students benefit, too, from an exchange of views and from the competition and challenge that the Society provides). Having worked for, voted for, taken hits for, and defended this Administration and the legal and moral principles for which it purports to stand, these students deserve better than a nominee who appears to regard — again, if the accounts are accurate — them and their ideas as a source of irritation rather than a source of inspiration. (Of course, I hope the accounts of Ms. Miers's views about the Society are wrong). . . .
Clinton did not set out to nominate Ginsburg for the court. He set out to nominate Bruce Babbit, who, by all means, would have had the qualifications equivalent to Roberts. Instead, Orin Hatch told Clinton that Babbit would not be confirmed by the Senate, and gave a list of names which included Justices Breyer and Ginsburg.This raises the following issue that I know serious Democrats are now really pondering:
Do Democrats want to support (or only tepidly oppose) a weaker conservative appointee who will be less dangerous than a highly qualified nominee with the judicial abilities to execute a serious judicial philosophy? Do they put their concern for judicial philosophy ahead of their concern for competence? Indeed would they not affirmatively prefer a less competent conservative on the bench to a more competent one? If you were an influential Democrat, how would you counsel a Democratic senator on this decision?
Put another way, did Orin Hatch make a mistake when he warned President Clinton off Bruce Babbit? Would Republicans be better off today with Babbit and not Justice Ginsburg on the Court? Should this be the criterion that ultimately determines the vote of a senator?
If the answer to these questions seems obvious--that of course Democrats should prefer the weaker Republican nominee, then does this not turn the confirmation process on its head. Opponents of a president screening the best and the brightest from the Court (as has been the obvious strategy for appellate court nominees) by means of the confirmation process. And, if implemented by both parties, would this not create "a race for the bottom" when it comes to the judiciary?
I have been very impressed by the insightfulness of the comments on the various threads concerning the nomination process, on both sides. I am very interested in the views of our readers on this matter.
Update: I appreciate the comments attempting to get the facts straight with regard to Bruce Babbit. But that is a side issue to the questions I was trying to raise and get feedback on.
Given the defenses of the qualifications of Harriet Miers to which I linked below, who could a Democrat president nominate to the Supreme Court who would meet what may one day be called by Democrats the "Miers Standard" (like the "Ginsberg Standard" of confirmation hearing testimony now deployed by Republicans)? Here is another way to put the question: if Harriet Miers is accepted by Republicans as qualified to be on the Supreme Court, who are they estopped from opposing in the future on the basis their of "qualifications."
I do not mean to suggest that a Democrat president will actually appoint such persons as are on whatever list is generated here. To the contrary, our most recent experience with Democrat appointments to the Supreme Court were Justices Ginsburg and Breyer, who satisfy anyone's criteria of qualifications related to ability (as opposed to judicial philosophy about which supporters and opponents can reasonably differ).
I mean this as an entirely serious exercise, rather than an invitation for frivolity--tempting and amusing as that may be.
Related Posts (on one page):
- The Miers Standard:
- More Defenses of Miers:
- Ron Cass Defends Miers Nomination:
Beginning in the 1990s, Harriet Miers was regularly rated one of the top 100 lawyers in America, and one of the top 50 women lawyers in the country.A few days ago, Tim Grieve at Salon.com (free access) took a closer look at the evidence supporting this statement. I'm not sure if Grieve gives us the whole picture — if not, I hope to hear about it in the comments — but here is his take:
[T]here's a circular sort of logic in Bush's claim about Miers' rankings. When Bush referred to the "top 50" and "top 100" rankings, he seemed to have in mind the National Law Journal's occasional listings of the nation's "most influential" lawyers. Miers appears to have made the magazine's 100 most influential lawyers list in 1997 and 2000 and its 50 most influential women lawyers list in 1998.Does anyone know if there is another side to the story? Was Miers on any "top 100" or "top 50" lists beyond the ones Grieve mentions?
Now, one might suggest that there's a difference between a "top lawyer" — which in our mind suggests someone unusually brilliant and well schooled in the law — and a "most influential" lawyer: Larry Tribe or John Roberts might make the cut for the first list; Jack Abramoff would sit comfortably on the second.
But let's accept for the moment that "top lawyer" is a fair sort of shorthand for "most influential lawyer." And then let's ask, why did the National Law Journal consider Miers to be so "influential"? If the NLJ items posted at the pro-Miers site JusticeMiers.com are any indication, it wasn't because she had a keen legal mind or some other qualification for the Supreme Court. It was, in large part, because she was so well connected, even then, to somebody named George W. Bush.
. . . When the NLJ named Miers to its 100 most influential lawyers list in 2000, it began by saying she was Bush's personal attorney, that she had served as general counsel for Bush's gubernatorial transition team, that she "handled background research, looking for possible red flags, during [the] early days of [Bush's] 2000 presidential campaign," and that Texas newspapers have suggested that she might be named attorney general or get some other "key administration post" if Bush were elected president.
Here is a link (scroll down) to a transcript of a RNC/White House Conference Call on Harriet Miers (10/06/05) to conservative activists urging them to support the nomination.
At both links, you can listen to the audio if you prefer that to reading a transcript.
Related Posts (on one page):
- The Miers Standard:
- More Defenses of Miers:
- Ron Cass Defends Miers Nomination:
You really should read the whole piece (entitled, Stop Whining – Right Choices and the Courts) which includes responses to arguments I made on Tuesday in my Wall Street Journal op-ed, but here is how his defense ends:
Conservative critics should be especially ashamed. Conservatives have been insisting that judges should respect the Constitution and laws, secure that this is enough to ask. Conservatives also have been aware that the Constitution grants substantial discretion to the President in making appointments. It is his call. We have elections to determine who gets to make picks such as this, and President Bush – to the delight of conservatives across the nation – won. Now he has picked someone he knows well and believes shares his vision of modest and law-bound judging, someone who helped steer the President to select other judges in that mold. Judges like John Roberts.
It’s time for those who have made common cause with the President to give him exactly the presumption that the Constitution does and political alliance should – that he has the right to make appointments of anyone who has the competence and temperament for the job. The presumption is that he has done this.
Now it’s time to stop whining before the next turn of the political wheel gives conservatives something real to whine about.
Related Posts (on one page):
- The Miers Standard:
- More Defenses of Miers:
- Ron Cass Defends Miers Nomination:
In this case, three Texas residents tried to alter the outcome of the 2000 Presidential election on the theory that Dick Cheney was a Texan. Cheney was a Texan, they contended, because he had lived in Texas when he was the head of Halliburton. Texas electors could not vote for the combined Bush/Cheney ticket if Cheney was from Texas because the 12th Amendment states that "[t]he Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves[.]"
The trial court easily and properly rejected the plaintiffs' claim. First, the three Texas residents lacked Article III standing to sue:
Because plaintiffs have failed to demonstrate a specific and individualized injury from the impending alleged violation of the Twelfth Amendment and are unable to show personal injury through harm done to non-defendant candidates, the court holds that they do not have standing under Article III to bring this suit.Second, Cheney was an inhabitant of Wyoming, not Texas:
The record shows that Secretary Cheney has both a physical presence within the state of Wyoming and the intent that Wyoming be his place of habitation. It is undisputed that he was born, raised, educated, and married in Wyoming and represented the state as a Member of Congress for six terms. After additional public service, he eventually moved to Dallas, Texas to become the Chief Executive Officer of Halliburton Corporation ("Halliburton").The Fifth Circuit then heard a very quick appeal. The district court decision had come out on December 1, 2000, and the Fifth Circuit heard argument and entered a one-line affirmance on December 7th: "All requested relief is DENIED." The plaintiffs filed an emergency petition asking for more time to file a cert petition just a few days before the Texas electors were to meet, but the Supreme Court denied it. A cert petition was eventually filed — I'm not sure exactly when — but it was denied after the electors had met on December 18th.
On or about July 21, 2000 Secretary Cheney declared his intent to return to his home state of Wyoming. On or after that date, and before today, he traveled to Wyoming and registered to vote there, requested withdrawal of his Texas voter registration, voted in Wyoming in two elections, obtained a Wyoming driver's license (which, in turn, resulted in the voiding of his Texas license), and sold his Texas house. He advised the United States Secret Service that his primary residence is his home in Jackson Hole, Wyoming, and he retired from employment with Halliburton.
Perhaps Beldar intends his post to be tongue-in-cheek, so maybe I'm just not getting the joke by looking at the merits. If so, my apologies. But I don't think the opinions in this case provide a lot of insight into Miers' skills in constitutional law. I haven't read the briefs, so maybe there was a lot more to the case than I can see from the opinions. (I tried, but can't get the briefs via my Westlaw subscription.) And to be clear, I have heard (and don't doubt) that Miers was a very solid litigator. But three random dudes were trying to overturn a Presidential election on the theory that Dick Cheney was a Texan, and it was pretty clear that Cheney just wasn't a Texan. If there were tricky legal issues in the case, they're not obvious to me; the lack of standing was pretty clear, and it's hard to imagine a legal definition of "inhabitant" under the Twelth Amendment that could have made Cheney a Texan given the factual record. Nor am I sure what legal issue could have been presented in a petition for certioriari, as the district court decision was pretty fact-specific.
Based on the opinions that were filed, at least, it seems to me that Miers' victory in Jones v. Bush doesn't give us a lot of insight one way or the other. Maybe I'm missing something, but that's my tentative sense of things.
Related Posts (on one page):
- A Closer Look at Jones v. Bush:
- Beldar Defends Miers' Litigation Skills.--
Friday, October 7, 2005
If great intellectual powerhouse is a qualification to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole.Thanks, Senator
Beldar has a long post defending Harriet Miers' career as a litigator, including her brief-writing skills. The last case he covers is a constitutional one, "Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001)."
It appears that Harriet Miers, on behalf of candidate and President-Elect George W. Bush, became one of the country's exceedingly few lawyers ever to handle a case involving the Twelfth Amendment. (How many Twelfth Amendment cases have John Roberts, Larry Tribe, and David Boies collectively handled? Why, I believe that number would be ... zero!)
Twelfth Amendment to what, you ask? It definitely looks like they're talking about the U.S. Constitution.
You remember that one, doncha? "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves[.]" Gosh, that might have been embarrassing! Win in the Supreme Court in Bush v. Gore, then have another federal court rule it was all for naught if both Bush and Cheney were held to be inhabitants of Texas? Ouch.
I wonder: Who was on the other side of Ms. Miers in that case? Who was trying to undo the 2000 election with this Twelfth Amendment argument? Hmmm — hey, I recognize this guy too: Sandy Levinson. He's only the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law. (Translation: heap big professor-guy.) "[A]uthor of over 200 articles in professional and more popular journals." Been a visiting prof at some other pretty good law schools: Harvard, Yale, New York University, and Boston University law schools. Co-author of a leading constitutional law casebook. I actually sorta know Prof. Levinson. Had him for a class, and I edited a book review he wrote for the Texas Law Review; I liked him a lot, and he's definitely one of the national stars on the UT-Law faculty. (I think he blogs some too!)
I suppose that would also make him one of those grand constitutional scholars who spends pretty much all of his time thinking about questions of great pith and moment. You know, the kind of superior, intellectually powerful, big-leagues lawyer that Harriet Miers ... obviously just isn't.
"So tell us, Beldar," you plead, "How'd that case turn out? Did Prof. Levinson save the day for either Al Gore or Joe Lieberman by keeping the Texas electors from voting for both Bush and Cheney?"
Well, the short answer, friends and neighbors, is that Harriet Miers just flat out kicked the distinguished Prof. Levinson's butt in court. On just about every issue, too. And she did it not once, not twice, but three times: federal district court, then again on appeal in the Fifth Circuit, and then again in the U.S. Supreme Court — another one of those "cert. denied" notations.
You ask breathlessly: "But is that 'cert. denied' really a win?" Why yes, friends, it surely is. Because, you see, when you've won in the lower courts, then your job as a lawyer is to persuade the Supreme Court not to take the case. Which is exactly what Harriet Miers did here — after first winning so convincingly in the federal district court that the Fifth Circuit, on the way up, didn't even bother to write an opinion of its own.
Further, though Beldar doesn't mention it specifically, in some cases Miers was the only lawyer in her firm listed as the counsel of record, so her involvement would have been central.
Related Posts (on one page):
- A Closer Look at Jones v. Bush:
- Beldar Defends Miers' Litigation Skills.--
MIERS VOTED FOR REAGAN IN '84Well, there goes the Walter Mondale Fan Club vote.
Fri Oct 07 2005 17:24:18 ET
**Exclusive**
The DRUDGE REPORT has learned from a senior official on Harriet Miers’ confirmation team that her political evolution began in 1984 during the Reagan revolution when she voted to reelect President Ronald Reagan.
California version of Megan's Law orders the California Department of Justice to put on the Web information about sex offenders; but Cal. Penal Code § 290.46(j) says:
(1) A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.The California Justice Department's Megan's Law FAQ plausibly interprets this as barring people from telling others about what they learned from the Web site, as a form of "use" of the information:(2) Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business establishment.
. . .(4) (A) Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) or in violation of paragraph (2) shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney's fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of misuse of the information available via the Internet Web site in violation of paragraph (2), the Attorney General, any district attorney, or city attorney, or any person aggrieved by the misuse is authorized to bring a civil action in the appropriate court requesting preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern or practice of misuse. The foregoing remedies shall be independent of any other remedies or procedures that may be available to an aggrieved party under other provisions of law, including Part 2 (commencing with Section 43) of Division 1 of the Civil Code.
I want to share with others the information I found on the Attorney General's Megan's Law Website. Does the law prohibit me in any way from sharing this information?A person may use the information disclosed on the Attorney General's Web site only to protect a person at risk. It is a crime to use the information disclosed on the Attorney General's Internet Web site to commit a misdemeanor or felony. Unless the information is used to protect a person at risk, it is also prohibited to use any information that is disclosed pursuant to this Internet Web site for a purpose relating to health insurance, insurance, loans, credit, employment, education, scholarships, fellowships, housing, accommodations, or benefits, privileges, or services provided by any business. Misuse of the information may make the user liable for money damages or an injunction against the misuse. Before using the information disclosed on this Web site, you may want to consult with an attorney or merely suggest to others that they view the Web site for themselves.
So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one's purpose is "only to protect a person at risk." If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people -- not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person -- one risks damages liability or an injunction.
Seems like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it's unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I'd think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record. But it seems that California weighs the privacy of public-record information about sex criminals more heavily than its law-abiding citizens' constitutionally protected free speech.
Thanks to Cathy Seipp for the pointer.
34 percent of women hired as assistant professors in the humanities and social sciences eventually gain tenure, compared to 27 percent of men. The difference is due to the significantly higher number of women in the social sciences who receive tenure: 42 percent of women compared to just 23 percent of men. The humanities were more evenly divided, with 33 percent of men and 30 percent of women receiving tenure.It's a surprising result, I think. I wonder if the same is true at other universities, to the extent there is any data on this question. Any thoughts?
UPDATE: Note that the AALS has some data on such questions in the context of law schools, available here.
A colloquy quoted in Judge Kozinski's powerful dissent in In re Complaint of Judicial Misconduct reminded me of a line from one of Juvenal's Satires:
| MR. KATZ: And the motion to lift the stay is denied? THE COURT: Denied; that’s right. MR. KATZ: May I ask the reasons, your Honor? THE COURT: Just because I said it, Counsel. | I wish it, I command it. Let my will take the place of a reason. |
Juvenal had his own axe to grind, and a rather different sort of decisionmaker that he was condemning; likewise Martin Luther, who liked to use the line to condemn the Pope. But it seems to me the line is more broadly applicable, including apparently to some federal courtrooms.
or Nobel Prize economist, or Pulitzer-Prize winning author, or, who knows: Natalie Ilana Bernstein, born October 6, 2005, six pounds, eight ounces. Father is especially proud of mother, who resolved to labor naturally, and did so despite a forty-two hour labor and a posterior baby.
Related Posts (on one page):
- Justice Bernstein:
- A Future Supreme Court Justice,
William Shakespeare and Miguel de Cervantes, the two great authors of their age, both died on April 23, 1616. Yet, as with yesterday's post, this coincidence would have been largely ignored by a hypothetical Seventeenth Century international newspaper. Why?
The arguments seem to run like this:
If you're right of center and support the nomination: You should approve of the Miers nomination because 1) the President has picked Miers, and you can trust him; 2) several prominent conservatives like James Dobson and Leonard Leo support the nomination, and they must know something you don't; and 3) the loudest conservative critics of the Miers nominations are the annoying ivory tower elites, and if they don't like her it's probably a sign that you should.
If you're right of center and oppose the nomination: You should oppose Miers because 1) Democrats like Harry Reid recommended her to Bush, and seem to be pretty happy with the choice; 2) the Alliance for Justice and PFAW haven't attacked Miers; and 3) lots of solid conservatives are upset about the Miers nomination.
If you're left of center and support the nominaton: You should support the nomination because 1) Democrats like Harry Reid recommended her, and seem to be pretty happy with the pick; 2) many conservative activists oppose it, and that's probably a sign that Miers is as good as it gets.
Finally, if you're left of center and oppose the nomination: You should oppose the nomination because 1) George W. Bush picked Miers, and having promised another Scalia or Thomas he surely will deliver; 2) prominent conservatives like James Dobson and Leonard Leo are in favor of the nomination, and their enthusiasm means that Miers must be bad news.
Something for everyone, it seems.
The Duke Law Journal will be holding a symposium on administrative law issues raised by Hurricanes Katrina and Rita, and it occurred to them (and me) that some readers of this blog might be interested in submitting.
From the Call for Papers: "[The hurricanes] have also brought a number of important administrative law issues into sharp relief. For example, important questions remain to be answered about federalism, including the legal limits on federal involvement and the proper resolution of conflicts between federal and state agencies in crisis scenarios; the intertwined history of domestic crises and the growth of the administrative state; judicial review of administrative decisions made under crisis conditions; governmental liability for pre-crisis administrative failings or post-crisis responses; emergency powers in times of domestic emergency; and the role of race and class in administrative responses to catastrophe."
The full Call for Papers is available here.
Orin quotes from the Washington Post on Harriet Miers' favorite Justice:
In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" — which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.
I find this story disturbing on many levels. Perhaps Miers couldn't think of anyone appropriate off the top of her head and thought that Leahy would like it if she said Earl Warren, but then caught herself when she realized that (rightly or wrongly) he was the poster boy for judicial activism. It would be odd to refer to Chief Justice Burger simply as "Warren." So perhaps the question was too difficult for her to answer without stumbling (of course, we all stumble in answering questions some time).
A second possibility is that she really does admire Earl Warren the most, but was unwilling to admit it to Leahy. That would seem a reasonable choice for a Democratic nominee, but not for a Republican. Further, to try to hide her choice from Leahy would show both cravenness and a lack of candor.
The third possibility is that she genuinely admires Chief Justice Warren Burger more than any other Justice that she could think of. If so, one wonders about the quality of Miers' judgment or whether she has read enough Supreme Court cases to form a reasonable opinion.
Burger was reputed to have done a good job running the federal court system, but is usually viewed as an indifferent or poor justice. I have never met anyone (conservative or liberal) who said that they really admired him, but I expect that many of his former clerks do.
Of the justices whom I have met in my life, the least impressive by far was Burger (the most impressive and most gracious was John Paul Stevens). I once spent a couple hours listening and talking to Burger around a table in the faculty lounge at the University of Virginia, where I was a visiting professor from 1985 to 1987. Burger had an impressive white mane, but struck me as sort of a Ted Baxter character (from the Mary Tyler Moore show). He looked like a Supreme Court Justice sent from central casting, but when he opened his mouth, he came off (to me) as crude and vain. (I expect to get many tributes to Burger's fine qualities in the comments--and I welcome them because they may make me more sanguine about Harriet Miers' judgment.)
Yet on that day in the mid-1980s, Burger spoke at length about an African American woman on the Court staff who had filed a claim of race discrimination against him (or perhaps it was against the Court administration). Burger did not try to conceal his glee that she lost. Why he would even bring it up for discussion was beyond me (it was very odd), and he repeatedly and pointedly called her a "Negro" when that term had become much less commonly used in educated society (though it was sometimes still used in Court opinions).
Second, Burger went on for over a half hour about how embarrassing it was when Justices went to parties in Washington (especially embassy parties) and they did not have chauffeurs, how he was trying to get drivers for Justices, and how much he enjoyed the royal treatment he received when he visited other countries. With great pride, he detailed the lavish welcome that he had received when he visited Canada.
Third, when an Australian judge or professor (also visiting at Virginia) mentioned to Burger that one of the leading judges in Australia would be coming to Washington and asked Burger whether he was scheduled to meet the Australian jurist, Burger replied that he couldn't meet every judge who came to Washington from minor countries. I wasn't the only one who was stunned by this statement.
I can't figure out why Harriet Miers would say that "Warren" was her favorite Justice. It could be that the question was too hard for her at that moment (a simple "brainfreeze"); it could be that her favorite was Earl Warren; or it could be that she really admires Warren Burger more than all the other Justices. In any event, her answer does not instill confidence.
UPDATE: I see that Jason Sorens, from whom Orin got the tip for the Washington Post quote, saw somewhat the same problems as I did with Miers' awkward answer.
2D UPDATE: Over at Bench Memos, Kathryn Lopez has a completely different version of the exchange between Leahy and Miers:
This is what I'm told happened:
"Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren — interrupted by Senator Leahy — Burger for his administrative skills.
Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn't express admiration for his jurisprudence."
[Mier's] relatively thin paper trail adds greater importance to her personal meetings with senators and to the committee hearing that is expected to begin in about three weeks. While generally well received, Miers has had a few awkward moments, including one during her Wednesday session with Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee.Hat tip: Jason Sorens.
In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" — which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.
UPDATE: This scoop by Stephen Henderson is also interesting, via another commenter:
In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure.
In the same testimony, Miers, then a member of the council, said she believed that the city should divest its South African financial holdings and work to boost economic development in poor and minority areas. She also said she "wouldn't belong to the Federalist Society" or other "politically charged" groups because they "seem to color your view one way or another."
Thursday, October 6, 2005
[N]ominating a constitutional tabula rasa to sit on what is America's constitutional court is an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom. The only advance we've made since then is that Supreme Court dukedoms are not hereditary.Hat tip: Simon Dodd.
. . .
There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.
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- The Harriet Miers Oeuvre.--
- More on Miers, Intellectuals, and Evangelicals:...
- Harriett Miers?:
- Miers Nomination--Well, My Prediction Was Right:
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The University of Michigan has helpfully put online much of Harriet Miers' published wrtiting (scroll down to "Articles by Miers").
I have read about a half dozen of Miers' pieces so far--nothing particularly good or bad about any of them. They are pretty standard practitioner fare, apparently fully competent, but seemingly no better or worse than a thousand lawyers at good firms in Chicago would do. There is none of the flair that showed in many of Roberts' memos in the Reagan Administration. I've read nothing intellectually substantial by Miers so far, but then I've just started working through the list. If she has any sharp analytical skills, they are not apparent in the pieces I've read. Given Miers' genuine success in practice, I suspect that she is a better advisor and negotiator than writer.
One thing stands out: most of Miers' published writing that I've read is stimulated by her close ties to the ABA.
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My colleague Professor Bainbridge writes, in a post entitled "On Becoming a Problem Child,"
John Dickerson makes a point about the Harriet Miers nomination that rings true for me:
The White House listens to these outraged voices but considers them more a nuisance than genuine problem.
I have the distinct impression that the Democratic Party sees the liberal blogosphere as being inside the tent, while the Republican Party views the conservative blogosphere as being somewhere between an irrelevance and a minor nuisance. Maybe this is true, at least in part, because many prominent "conservative" bloggers (Andrew Sullivan, Glenn Reynolds, Stephen Green, and Eugene Volokh spring to mind) are not exactly stalwart Republican party loyalists but rather libertarians (or whatever) who put routinely put their principles ahead of party interests. Alternatively, maybe the Democrats have just decided to follow Lyndon Johnson's advice about keeping your critics inside the tent peeing out rather than outside the tent peeing in.
In any event, all of this raises the question of how those of us in the conservative blogosphere can elevate ourselves into the category of genuine problem as opposed to mere nuisances. I'm open to suggestions.
I have no opinion on the factual question of how the Republican Party views bloggers, and I don't want to speak in this post about what people should do about the Harriet Miers nomination. But as a matter of principle, I surely sympathize with any man who wants to be a problem.
Sure, people like Perkins and Santorum have hedged their bets, taken a wait and see attitude, maybe even expressed some reservations or concerns. Even James Dobson has backed off his early enthusiasm for Miers a bit. What these people haven't done is make a principled case against Miers, which means they can still be persuaded to support her--and, I suspect, they probably will once they see more evidence of her political and social conservatism.I think Scheiber is confusing two different questions. The first question is whether Bush made the right call when he nominated Miers; the second question is whether Miers should be confirmed by the Senate. What Scheiber presents as a divide between intellectuals and religious conservatives is really a divide between conservatives debating the first question and conservatives debating the second question.
On the other hand, a principled case against Miers is exactly what conservative intellectuals like George Will, David Frum, and Bill Kristol have made.
Dobson and Santorum have been focused on the bottom line of whether they support the confirmation of Miers (and in Santorum's case, whether he will vote up or down). In contrast, Will, Frum, and Kristol have harshly criticized the President for having nominated Miers in the first place; to my knowledge, none of them have taken the position that that Miers should be defeated in the Senate. George Will comes the closest when he says that "it might be very important" that Miers is not confirmed, but I don't think that's quite enough.
In sum, the two groups aren't disagreeing, but rather answering different questions. The commentators are ruminating on process, while the politicans and political leaders are focusing on the bottom line vote.
UPDATE: In response to a comment below, I should have been explicit that the two sets of positions aren't inconsistent. Lots of conservatives feel that Bush made a poor choice, given the options, and they feel conflicted about whether the Senate should now vote to confirm Miers. The commentators are focusing on the former, the political leaders on the latter.
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- The Harriet Miers Oeuvre.--
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- Harriett Miers?:
- Miers Nomination--Well, My Prediction Was Right:
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Stanley Kurtz (National Review Online's The Corner) writes:
Although I would have chosen differently, I’ve tried to give the president the benefit of the doubt on the Miers nomination. Having said that, I note a worrisome report in today’s Chronicle of Higher Education. It seems that Miers was a key figure behind the establishment of a lecture series in women’s studies at SMU. Here is the critical excerpt from today’s Chronicle story:
In the late 1990s, as a member of the advisory board for Southern Methodist University's law school, Ms. Miers pushed for the creation of an endowed lecture series in women's studies named for Louise B. Raggio, one of the first women to rise to prominence in the Texas legal community. A strong advocate for women, Ms. Raggio helped persuade state lawmakers to revise Texas laws to give women new rights over property and in the event of divorce.
1. Ms. Miers, whom President Bush announced on Monday as his choice to fill the Supreme Court seat being vacated by Justice Sandra Day O'Connor, not only advocated for the lecture series, but also gave money and solicited donations to help get it off the ground.
A feminist icon, Gloria Steinem, delivered the series's first lecture, in 1998. In the following two years, the speakers were Patricia S. Schroeder, the former Democratic congresswoman widely associated with women's causes, and Susan Faludi, the author of Backlash: The Undeclared War Against American Women (1991). Ann W. Richards, the Democrat whom George W. Bush unseated as governor of Texas in 1994, delivered the lecture in 2003.
Now I don’t think this necessarily establishes Miers as a closet feminist. Unfortunately, the pattern here is repeated continually by conservatives everywhere. Wealthy conservative donors to universities typically seek to share in the prestige of these institutions–or as in this case, to honor their friends and loved ones and encourage young students in the paths they have trod. In doing so, they give money to a school who’s own purposes may be very different from their own. . . .
I would think that it would be hard to establish Harriet Miers as a closet feminist, because it seems to me that she's an out-of-the-closet feminist, in the traditional sense (though I realize that it's not the only possible sense) of one who believes in the social, political, and economic equality of the sexes. I don't know how much she's talked about it, but she's lived it — her career is that of a woman who believes that women should have the same opportunities that men do. My guesses as to other feminists: Condoleezza Rice; Sandra Day O'Connor; Clarence Thomas's wife Virginia Thomas; perhaps Clarence Thomas himself, judging by his choice of wife, and assuming that he likely admires and respects her career choices; Chief Justice Rehnquist's daughter Janet; the list could go on much further. In fact, the striking feature of this traditional "equity feminism" is how much it has prevailed in the lived experience of the conservative elites, as well as liberal elites. If it hadn't prevailed, it would be hard to find any women judges, since equity feminism was in large measure a repudiation of the view that women shouldn't become judges.
Now this is something of an aside in Stanley Kurtz's post, and later he goes on to disapprove of "left-leaning feminists." Perhaps that's what he meant to write in the material I quote as well, and didn't mean to disparage feminism of the yes-I'll-be-a-lawyer-or-even-Secretary-of-State variety. But if that's so, then why even mention "feminist" at all in the negative reference, rather than just expressing concern about the "left-leaning"?
I'm proud to be a feminist in the traditional equal-opportunity sense, and I'm glad Ms. Miers seems to be a feminist, too. No need for her to be in the closet about that. And I think it would be a serious mistake, conceptual, moral, and political, for the conservative movement to reject feminism (as opposed to affirming a sound conception of feminism).
UPDATE: Here's Stanley Kurtz's response, which I much appreciate his posting:
In response to Eugene Volokh, who argues that conservatives should not reject feminism per se, have no problem affirming the "equity feminism" backed by folks like Christina Hoff Sommers. It's the left-leaning feminism sponsored by folks like Gloria Steinem and Susan Faludi (what Sommers calls "gender feminism") that I have a problem with. The difficulty is that when academics and liberals talk about feminism, they don't mean the equity feminism affirmed by Christina Hoff Sommers. I agree that we need to do more to take the word back. Having said that, in common parlance on today's campus, the word feminist means the sort of left-feminism that considers someone like Sommers to be a non-feminist apostate. So it's a complicated word that gets used in different ways by different folks in different contexts.
Yesterday the Senate voted 90-9 to set limits on the handling of detainees. There is coverage of the vote here and here. I do not know whether the standard adopted by the Senate is the best approach, but I nonetheless view the vote as a positive development.
If anything, this newfound Congressional willingness to address the rules of detention is long over due. While I certainly believe that the Executive Branch is due a fair degree of deference from the courts in its execution of war-related activities, the Constitution confers the ultimate responsibility for such matters to the legislature. Article I, section 8 explicitly delegates the power "to make Rules concerning captures on Land and Water." Congress also has the power "to make Rules for the Government and Regulation of the land and naval Forces." Viewed in this light, Congress is not interfering with executive power. It is exercising a responsibility the Constitution explicitly places in the legislature's hands.
Absent Congressional enactments specifying how military detainees are to be treated, the precise limits of the executive's authority are necessarily ambiguous. This ambiguity may give the executive some measure of leeway -- a leeway the White House and military apparently want to preserve -- but it also has unfortunate consequences. Among other things this ambiguity encourages legal challenges to military operations and invites the courts to second-guess decisions that should be made by the political branches. Insofar as the legislature sets clear rules, there will be less room for the judiciary to interfere. If one fears excessive judicial meddling in the conduct of the war on terror, as I do, one should applaud this development.
Again, I am expressing no opinion on the substance of the standards adopted by the Senate. I do not know whether they are stoo strict or too lenient. Rather, I am suggesting that as an institutional matter we should welcome the Senate's willingness to fulfill its Constitutuonal obligation to establish rules for military conduct. I hope that the House will follow suit.
The Delaware Supreme Court reversed a lower court opinion requiring an internet service provider to disclose the identity of an anonymous blogger who allegedly made defamatory claims about a public official. The court decision is here. (Via How Appealing)
We still seem to be in the early stages of the blogosphere. But I'm wondering, particularly with respect to law blogs, what the future holds. Here are a few possibilities as to directions we'll take in the future.It's hard to predict these things, of course, but I would suggest a fourth future: A continued increase in the overall amount of law blogging until we reach a natural equilibirum, and then a roughly constant amount of blogging with frequent turnover among active law bloggers. Here's my thinking. Right now law blogs are pretty new, and the number of law bloggers is increasing. But it's much easier to start a blog than to keep it up. A typical post might take an hour or so to research, write, and edit. And the better and more thoughtful the post, the more time it takes. Only so many people are willing to put in those hours on a regular basis, and members of that
1. We're in the "Far and Away" land rush phase, and pretty soon the continent will be filled up.
2. We're in the early Internet Boom phase, and a big shakeup is coming down the pike.
3. Blogging is a transitional technology that will lead to new forms of connectivity and creativity. Current bloggers will lead the way to these new formats.
Among law professor blogs, the big variable would seem to be whether blogs eventually will be taken more seriously in the scholarly community than they are now. Right now most lawprof bloggers do it for fun, but don't consider blogging "real work." If this changes, I think it will transform the nature of law blogs considerably. Whether that would be a good thing or a bad thing is an open question.
Cathy Young explores this story, which seems to have been making the blogosphere rounds, and finds less there than meets the eye.
It's an oft-cited fact that John Adams and Thomas Jefferson died on the same day as each other. Writers Aldous Huxley and C.S. Lewis also died on the same day as each other, but their deaths, even occurring together, did not warrant major headlines. Why?
Right now things are obviously frothy on the political front--both of the Washington papers (the Times and the Post) report on the heated meetings that took place yesterday between conservative activists and the White House on the Miers nomination. Democrats seem to be standing back and enjoying the show for now.
Here's what I will be interested to watch for politically--will one of the likely 2008 Republican Presidential candidates decide that he or she can break from the pack and score points with conservatives by opposing this nomination? Brownback and Santorum have been noticeably evasive so far. I've heard nothing from George Allen, McCain, or Frist--perhaps I've just missed reports on them though. Could any of them score points with conservative activists by moving first?
If one or more of the conservatives peels away from the President on this nomination, then the feeding frenzy could be on. At that point it seems difficult for Democrats, notwithstanding Harry Reid's enthusiasm for her, to toe the party line and support a stealth nominee that even many Republicans think unqualified. If, however, he keeps all of the Republicans on the reservation, then I think she will probably barely survive. Of course, then there is the question of what kind of deals the President might have to cut to keep them on board.
If the Times and Post reports are accurate, then surely some prospective 2008 Republican Presidential candidates must be asking themselves the same question.
Update:
I've been tied up with the ACTA Conference, so haven't been posting. If you happen to stumble across this post, however, the Comments have several updates about the positions of the various Senators discussed here.
I will be speaking tomorrow at the national conference of the American Council of Trustees and Alumni, ACTA, describing my adventures with the Dartmouth trustee election. The program, which this year celebrates ACTA's 10th Anniversary, looks quite interesting. It kicks off today with a screeing of Evan Coyne Maloney's new film "Indoctrinate U" and continues tomorrow with speakers including David Brooks, Ed Meese, John Engler, and others.
Professor Elizabeth Warren challenges my criticism of the ill-informed New York Times Editorial the other day. Unfortunately, it appears that she falls into much of the same confusion as the New York Times itself did.
First, Warren takes issue with my insistence that the "special circumstances" exception in the legislation will protect the victims of Hurricane Katrina from the means-testing provision of the bill. This seems to be the Times's concern, although the Editorial is so vague, confused, and lacking in specificity it is not clear what precisely are the provisions to which the Times is objecting. She writes:
[Continue Reading Warren Defends Times Editorial on Bankruptcy Reform and Hurricane Katrina under hidden text]: