"A Spirit of Favoritism":
My Wall Street Journal essay, Cronyism, is available (for free) on Here is the concluding paragraph:
Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution's limits on government power. Does anything in her record suggest that Harriet Miers will be that sort of justice? We do not need to wait for Senate hearings to answer this question. What hearings will tell us, however, is whether the Senate, too, will succumb, in Hamilton's words, to "a spirit of favoritism."
(Comments are activated, but please confine posts to matters of substance—both pro and con—related to this post. Crudities will be removed.)
Victoria (mail) (www):
By characterizing this appointment as cronyism, I mean to cast no aspersions on Ms. Miers.

But it does, and you do anyway.

Because by merely inveigling this word into your otherwise well-considered essay, you are already accusing her of being nothing more (emphasis mine) than just a crony pick.

When I wrote my blogpost Monday at 8:24 AM EDT, called It's Harriet Miers!, I said this:

This President likes people who he knows and trusts. Time and time again, he has chosen to important positions, people of unquestionable allegiance to what his administration stands for.

He's the most fraternal of US Presidents that way, since John F. Kennedy [...]

Fraternal, because that is the more precise word to describe this president.

Cronyism is what Truman did, by selecting oft-times his poker buddies to the highest reaches of government, and the Courts.

This President deals with people for decades, and comes to form deep-lasting impressions on their character.

Those who survive this decade-long vetting process, are without a shadow of a doubt for me, people who reflect his administration's deepest ideals.

Conservative bloggers today have done a disservice by merely reducing Miss Miers to a "crony", when in fact, she's a well-known quantity.

This isn't Margaret Spellings sliding over to Dick Riley's old position as Secretary of Education.

This isn't even Condi Rice sliding over to Colin Powell's vacated and very powerful post, Secretary of State.

There were much to recommend those choices for the individual subtleties and strengths they brought to their positions, but all you hear today from my fellow Conservatives is whinge, whine, "crony this", "Where's Luttig that".

Originally, John Roberts was filling the position left vacant by Sandra Day O'Connor.

Bush went with him despite not being a crony.

He was singularly qualified to sit on the highest bench, and he realised that Roberts would be a difficult man to make look bad.

What a travesty that the person he actually KNOWS AND TRUSTS most, is the one who is giving him the most trouble.

And from his ownn side.

This is what comes about when you hope to hit a homerun, and instead, you perceive you just got a weak little comebacker instead.

Maybe people are right. Maybe the vast majority of us just want ideologues who reflect our vision completely and unassailably.

I am not an idealogue. I don't care if she's a woman or man. I just want someone trustworthy, capable and unimpeachably-minded like this President.

By reputation, and by research, I have no doubt she is all that and more.

10.4.2005 2:06am
While I agree that the question of a nominee's judicial philosophy is of utmost inmporance, I'm not convinced that whether or not she has one of sufficient depth is a settled question. Maybe I have too much faith in the senate (is it possible to have too litte?) but the question of how developed Miers' judicial philosophy is (I assume anyone with supreme court aspirations has some sort of philosophy) is something that could be brought out in a proper confirmation hearing. Ask her hard, in-depth complex questions and see how she responds. Keep asking her those questions every day for a month and see how she continues to respond.

I don't think we need to dismiss her out of hand, and I think she could be a great example of how the confirmation process is supposed to work. But as I said, I'm probably expecting too much of the senate.

She really is a boring pick.
10.4.2005 2:08am
Mahan Atma (mail):

Fraternal, because that is the more precise word to describe this president.

You mean like his appointment of Brownie?

The only difference is Miers would have lifetime tenure.
10.4.2005 2:26am
Kip (mail):
I have to go with Victoria's line of thinking on this. The tone of a lot of the griping strikes me as " *I* don't know much about her so therefore she's got to be suspect . . . ". But think about all the years Bush has had to talk with this woman - privately, intensely, casually, at length. He has to know more about her and her thinking and her character than he possibly could about any sitting judge. I for one think he deserves the benefit of the doubt on this one.
10.4.2005 2:26am
Nels Nelson (mail):
That she is a crony doesn't disqualify her, but her relationship with the President should make suspect his opinion of her. He's gotten free passes on Administration appointments because those are at-will, accountable to him, and in the scheme of things fairly short-term. If the Senate were to do its job, I wouldn't be worried; they would find out if she was qualified, irrespective of the President's praises, and vote accordingly. Instead, I have a feeling that she'll be confirmed by a combination of party-line Republicans, and moderate Democrats who know an "unknown" is the best they could have hoped for, while the wings of both parties will vote against her.
10.4.2005 2:33am
I'm with Mr Barnett on this one ... 'Tis not aspersion in my book to say that someone is not worthy/qualified for a spot on the Supreme Court! Much like saying that this year's all-star quarterback has not earned a spot in the Hall of Fame (yet) is not the same as calling him a bum! I think the article indicates respect for Miers as a fine attorney, perhaps even an all-star in the legal field, just not quite up to muster for lifetime of Supremity...

I do feel that a nominee of this much stealth and lack of paper trail should expect to have to answer more probing questions than did the new Chief and many of those that he was allowed to sidestep. The President's political play will likely succeed because if the Democrats dare to shoot her down, they're apt to get someone much less to their liking next time around. I expect the Demo's to vote to confirm with many of Republicans voting against.
10.4.2005 2:41am
Jim Rhoads (mail):
Compare Ms. Miers' cv with this mystery nominee:

He graduated from high school at age 17 and spent the next year as a post-graduate student at another highschool. He never attended college. At age 18, he went to work as an apprentice in a local law office, then attended an independent law school in his state (unconnected with any know University), completing the second (senior) year of its two-year course of study. He then returned to the hometown law office to finish his apprenticeship for his third law-preparatory year. He passed his state's Bar Exam at age 21 and set up private practice in his home town.

At age 41, he was appointed to federal office by the incumbent U.S. President (who had been his home state's Governor). He served initially as general counsel of the U.S. Treasury Department's Bureau of Internal Revenue (today's Internal Revenue Service). Two years later, at age 43, he became Assistant Attorney General heading the Department of Justice's Tax Division, and at 44 he became Assistant Attorney General heading the Antitrust Division. At 46, he became United States Solicitor General, serving two years, and was appointed Attorney General of the United States. Less than a year later the President appointed him Associate Justice to the Supreme Court. He was 49 and had 8 years of federal government service under his belt.

He became a damn good Justice, despite being labled a crony of the President who appointed him to all of his government positions. Who was he?
10.4.2005 2:44am
E S Cioe (mail) (www):
Robert H. Jackson.
10.4.2005 2:48am
AnonymouslyYours (mail):
Professor Barnett -- Two comments, one substantive and one stylistic. Personally, I thought your post about the nomination of John Roberts on the Volokh site was much better written and much more apt.

On judicial philosophy...

Don't you think your analysis favors those nominees who have had, at one point, a position in academia? Or can judicial philosophy be garnered through public actions, the cases one takes, the jobs one holds, etc. What is evidence of having a judicial philosophy in your opinion. I think you responded to this question briefly during the Roberts nomination but I think for the purpose of this article a fuller explication would have been in order.

Also, it would be helpful to give examples from both the left and right of Justices with the sort of philosophy you are talking about.

On the article stylistically...

This may come off a bit snarky, but when anyone defines something from a dictionary I always think of the scene from the Simpsons where Lionel Hutz is defending Homer in Homer's dispute with the Devil, for selling his soul for a donut. Hutz says "Merriam Webster's defines 'contract' as an agreement which is unbreakable. Unbreakable." And then runs out of the room.

I know it's the hip textualist thing to do, but defining from the dictionary, always strikes me as either a bit amateurish or worse insulting to your reader, especially when you're talking about a word that every person reading a Wall Street Journal editorial page would understand.

I hope this doesn't come off too insulting. As I said, I thought your reaction to the Roberts nomination was spot on and I always find your posts thoughtful.
10.4.2005 2:52am
Jim Rhoads (mail):
Indeed so. And I think there is a mighty thin line separating his qualifications from those of the current nominee.
10.4.2005 2:52am
Jacob Lister (mail):
"Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time."

If cronyism is so bad, why is it acceptable to place a crony on a lower court? I think this is where the cronyism falls apart. Miers does have a JD and experience practicing law. She's no neophyte, and has probably contemplated the questions you raise -- what role does a judge play in our system, what methods of constitutional interpretation are preferred, etc. After all, who among the readers (including non-lawyers) here haven't read at least some decisions and thought how they might have ruled in the cases? Whether Scalia's originalism or Breyer's democracy-enhancement or your presumption of liberty is more appropriate? Which policy arguments are compelling in making a decision, or whether policy even has a place in a judicial decision?

If her knowledge and experience don't qualify her for a Supreme Court seat, but are fine for an Appeals Court seat, that destroys the charges of cronyism. Why should the fact that Bush has known her for a long time eliminate her from consideration? The advise and consent of the Senate is to prevent "the appointment of unfit characters," and to discard "candidates who had no other merit than . . . being in some way or other personally allied to him," and arguably Miers is not unfit or without any merit. The early Justices were known by their appointers, Jay, Marshall, Rutledge had merit aside from knowing Washington and Adams.

But simply because she hasn't served on a court does not mean she has no merit at all. That being said, the Senate can probe deeply and should decide if Miers' philosophy is well-developed, consistent, or whatever else it feels a justice should have, even including experience on the bench. Since she is apparently qualified for other appointed positions, the Senate should disregard cronyism and decide if she is qualified for the Supreme Court, based on her merits.
10.4.2005 2:53am
Jim Rhoads (mail):
To be fair to Professor Burnett, however, as Solicitor General, Justice Jackson did have to deal with Constitutional Law on a daily basis for two years during a critical period in the Court's history. I wonder how much of the written work and arguing he did, however, given his previous educational background.
10.4.2005 2:57am
Bill Dyer (mail) (www):
On behalf of practicing lawyers, I respectfully dissent.
10.4.2005 3:22am
Justin Kee (mail):
The members of the Supreme Court have a duty to uphold the laws of the United States. The question of the allegiance of a potential candidate to the Court is a valid question that concerns all Americans, not simply those of a particular ideological bent. From 76,
"There is nothing so apt to agitate the passions of mankind as personal considerations, whether they relate to ourselves or to others, who are to be the objects of our choice or preference. [...] In either case, the intrinsic merit of the candidate will be too often out of sight."
In considering the arguments against the power of the President to appoint the candidate as opposed to simply nominate the candidate, Hamilton argues that the motives would be the same in either case. If a nomination failed the Senate, the President would simply choose another preferential candidate. And the subsequent candidate might in fact be worse.
That said, we have a lame duck President with an accommodating Senate composed of a like majority. Who has more to lose in this nomination?
10.4.2005 3:39am
I think all of this comes down to one very simple question: would any other president even consider nominating Ms. Miers for a position on the SCOTUS? The answer, quite obviously, is "no." How then can anyone argue that this isn't cronyism of the basest variety?
10.4.2005 3:57am
Scott Clair (mail):
I admire but disagree with Prof. Barnett's screed against nominee Miers. It takes some guts to go after her given she's likely to be confirmed and given that he recently argued a case in front of the Court. I have to think that case will be his last b/c he'll be persona non grata in front of her after his WSJ opinion.

The thing I like about Miers nomination is that (1) she's relatively old, which all Supreme Court nominees should be and (2) she has no judicial experience. Prof. Barnett seems to think she has no overall judicial philosophy b/c she's not a judge, but who on the Supreme Court has an overall philosophy that's developed and applied consistently?

That can't really be a qualification for Supreme Court nominees.
10.4.2005 4:08am
Mahan Atma (mail):

President Bush's nomination of Harriet Miers to the Supreme Court is surely an inspired choice, but it comes at a cost: overlooking one of the finest potential Supreme Court Justices working out of the White House today. While Miers's lack of qualifications and cronyist ascension certainly make for an appealing candidate, even these qualities pale before those of the fabled jurist Mr. Bush passed over to nominate her: the president's favorite rock.

A prized possession passed down through the Bush family, the rock has years of loyal service to its name. It has demonstrated a remarkable versatility over its tenure: it has been lined with felt for desktop use, brandished drunkenly at parties, waved around during cabinet meetings to mouth-powered spaceship noises. Administration insiders insist it is impossible to overstate the rock's role in shepherding the Bush agenda, and note that without the rock's timely intervention, several key aspects of the 2003 Medicare bill might have been lost to an especially strong breeze.

Besides rewarding hard work, intelligence, and dedication, the rock appointment would make for a canny political move, as well: as an igneous rock, it has known struggle and hardship, emerging from the difficult pressures and molten magma in the earth's mantle; as a Mineral-American, it would be blazing a trail that could inspire a host of salts and silicates.

The rock would have its detractors, of course - partisans and special interests, frustrated by the lack of legal opinions in the rock's past, might claim the rock had something to hide. This, of course, is absurd: the Senate Judiciary Committee would be free to ask it as many questions about its judicial philosophy as appropriate, which the rock would naturally answer with its characteristic modesty.

Sadly, the moment for Justice Rock will have to wait. Not too long, hopefully - John Paul Stevens can't hold out forever.

10.4.2005 5:25am
I suppose it is unsurprising that the people willing to defend Miers are also willing to simultaneously use strawmen arguments and lower the bar for Supreme Court nominees, but I still find it depressing.

No one is saying Miers is dumb or a bad lawyer. Most people are not saying that a nominee must have prior service as a federal judge. What people are saying is that if someone has not been a prominent federal judge, then he or she must have done something else highly relevant and distinguished in its place. For example, one might have been head of a federal agency or prominent office that dealt with legal issues relevant to the Court, such as Thomas (EEOC) or Rehnquist (OLC). One might have been a longtime Supreme Court litigator, like Roberts. One might even have been a prominent lawmaker or executive, like Warren (three-term governor of California). But Miers simply has not done anything like that.

And nothing we will find out about Miers in the hearings, and nothing the President could know in virtue of working closely with Miers, can change the fact that Miers simply has not had sufficiently relevant and distinguished experiences.

Incidentally, do think that Barnett made a tactical error in arguing that Miers might have been qualified for a COA, because it makes this sound like a remotely close call. I don't think she is qualified for the COA either ... maybe for a DCT in light of her experience as a trial-level litigator, but as far as I can tell she has very little experience with appellate work, and again has done nothing else to prepare her for such an experience.
10.4.2005 6:18am
Conservatives are just NOW figuring out that the Bush Administration is guided by cronyism and not principle? Now do you understand some of the liberal arguments about Halliburton and Iraq (and not Halliburton and Katrina)?
10.4.2005 7:29am
Prof. Barnett (if you're still reading the comments at this point), you say that:

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate.

And yet John Roberts said many times that he had no "judicial philosophy." He did expound at some length on the role of a justice, but on the other hand, while he clearly knew the cases, he said essentially that judicial philosophy is the domain of academics and arguments in law review articles. Does this make him unqualified in your assessment, was Roberts just being appropriately evasive in the face of unfair questioning, do I misstate the facts, or is there something else?

As for the substance of the op-ed, I think the criticisms are spot-on. Unfortunately, with Harry Reid's endorsement, I don't know that the Senate is going to follow Hamilton's plan.

Mr. Rhoads, I think the line separating Miers and Jackson is thicker than you care to admit. If your facts are correct, I'd say that 2 years as Solicitor General (which some call the "Tenth Justice of the Supreme Court") alone would make him infinitely more qualified than Miers.
10.4.2005 8:12am
Cornellian (mail):
If you're going to nominate a crony to the Supreme Court without being accused of cronyism, wouldn't you want someone who at some point in her career had something to do with the Supreme Court? Has she ever argued a case before the Supreme Court? Ever had any significant role in any Supreme Court litigation? Ever written anything that indicates she's given more than a passing thought to the Constitution, its text, history and interpretation?
10.4.2005 8:15am

No kidding ... I originally thought the point of bringing up Jackson's resume was to show that not all people accused of being cronys are in fact as unqualified as Miers. Head of two different DOJ divisions, SG, and AG? That is a diverse and impressive list of accomplishments and experiences. In contrast, tracking back Miers's career, at the same time Jackson would have been SG, she was STAFF SECRETARY. Not even close.
10.4.2005 8:19am
subpatre (mail):
The charge of cronyism fails. Prof. Barnett's use of that particular definition is deliberate, relying on the

Random House definition that it's "the practice of favoring one's close friends, esp. in political appointments"
In contrast, the

American Heritage definition is "Favoritism shown to old friends without regard for their qualifications, as in political appointments to office" [Emphasis added]

Prof. Barnett's unfortunate intoduction, Alexander Hamilton's Federalist paper, is irony at it's finest. Using a new interpretation of Hamilton's own words, by Barnett's standard Hamilton himself would be unqualified for the Cabinet post he held under Pres. Washington, a close personal friend and confidant.

It's unfortunate in some ways that not much is known about Ms. Miers; but using "lack of knowlege about" to mean "disqualified" is not fair. Only the cronyism charge makes it plausible, and Prof. Barnett went way too far.
10.4.2005 8:44am
With all due respect, I find this article offensive in the extreme. It is really nothing more than a pean to the legal elite community and is disdainful to those who are not a member. Your real premise seems to be less one of "cronyism" than one of qualifications, or in Miers case the lack thereof.

I hope a great many trial practicing lawyers who have never been judges read your article. I expect most of them who don't know you will draw the conclusion that you are an elitist snob, and for all I know they will be right.

Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president?

What experience would that be, exactly? She is an able lawyer and has no doubt dealt in many constitutional issues in her various roles over the years. You act as though considering the application of the constitution to law is like writing assembly code. I don't think our founders would approve of such a view, if that is similar to what you actually believe.

You and others who agree with your particular look at qualifications are really advocating an oligarchical view of the court - only those steeped in Ivy League glory with years of arguments before the court and/or years of experience judging need apply. I profoundly disagree with this view, and would even suggest there is evidence that this sort of narrow vision is in no small part responsible for some of the slipshod jurisprudence we have been getting out of the Court for years now.

You are basically advocating only a resume. What ever happened to the personal interview?
10.4.2005 9:06am
Matt Barr (mail) (www):
We are reflexively (I hope) skeptical of our natural inclination to think that things are more complicated today than they were yesterday, but if it's true anywhere, it's true in the law and in the courts. You get the monthly article about how we should abolish the jury system for cases involving complicated evidence. You get SDO herself, elevated from the Arizona Court of Appeals, saying that she doesn't think in this day and age a state court judge could be a successful Supreme Court Justice without some federal lower court experience.

On top of this, the war on terror brings a number of new pressures (or new since WWII) to bear on the Court. Patrick Ruffini, defending the Miers pick yesterday, wrote favorably that having been "present at the creation" of the GWOT she would be "unlikely to let Jose Padilla roam the streets." Well, great. Would she at least want him charged with a crime first?

And all this sets to one side the argument, shared by a lot of Volokh readers and posters, that the Court needs intellectual reform, not just a guaranteed vote here or there on this or that issue. Prof. Barnett has it exactly when he says that in this day and age this is not a qualified nominee, if she ever would have been.

(I've heard a lot of teevee people talking about how the Constitution doesn't even require a Supreme Court seat be filled by a lawyer, let alone a judge. I hope we wouldn't be satisfied with any 35 year old natural born citizen to be our President.)
10.4.2005 9:19am
Cornellian (mail):
The personal interview is no substitute for qualifications. Personally I don't think which law school she attended is that big a deal, since that's only a proxy for potential future achievements, but where are the relevant achievements here? Is it so unreasonable that someone nominated for a lifetime appointment on the Supreme Court actually have some experience in what they do? Being president of the Texas Bar Association is no more a qualification for the Supreme Court than managing a horse breeding association is a qualifcation to be head of FEMA.

You and others who agree with your particular look at qualifications are really advocating an oligarchical view of the court - only those steeped in Ivy League glory with years of arguments before the court and/or years of experience judging need apply. I profoundly disagree with this view, and would even suggest there is evidence that this sort of narrow vision is in no small part responsible for some of the slipshod jurisprudence we have been getting out of the Court for years now.

You are basically advocating only a resume. What ever happened to the personal interview?
10.4.2005 9:29am
I have no idea about this candidate, but I am pleased that Bush selected another practicing lawyer, instead of a judge or an academic. Judges, especially appellate level judges, by and large have no real idea of the chaos that their decisions often cause. Regardless of their paper credentials, the Supreme Court needs more than just those who have sat in their cloistered Ivy Towers studying the Constitution.

The notion that the Supreme Court needs individuals with developed judicial theories is insulting to practicing attorneys. Aside from academics, few individuals have the time to ponder these metaphysical questions. With all due respect to those academics that actually practice, law professors aren't exactly the most useful or relevant sources of information to the practicing community. They write for the law reviews, not to resolve conflicts. We can only hope that the Supreme Court continues to get Justices with practical experience. There is little that it needs more.
10.4.2005 9:56am
"What experience would that be, exactly? She is an able lawyer and has no doubt dealt in many constitutional issues in her various roles over the years."

Actually, there is considerable doubt about that. By far the vast majority of legal practice, particularly non-criminal legal practice, has no significant component of Constitutional Law.

In general, this notion that any "able lawyer" is qualified for the Supreme Court does not pass the laugh test ... as almost any able lawyer would admit, at least if politics and/or self-interest were not involved.
10.4.2005 10:00am
Dean Esmay (www):
Byron White, Lewis Powell, William Rehnquist, Clarence Thomas, "cronies" all--i.e. people with no judicial experience (unless you count the five minutes Clarence Thomas was on the bench before being elevated) and whose primary qualifications were that they were well-known in POLITICAL circles.

Give it up, she's a qualified and experienced lawyer and acknowledged by all who know her to have a sharp mind. Conservatives ought to like her because she's pro-life and pro-gun. Liberals can admire her as a strong independent woman.
10.4.2005 10:11am
Dave from Woodstock (mail):
With all due respect, the implication of this piece, if not overtly stated, is that only members of the professional judiciary (and probably only Ivy League grads at that) are fit to be Supreme Court justices. That elitest view of the post would probably have offended Hamilton. Jefferson would be driven to fury over it.

Whether or not Hamilton's definition of cronyism is apt here (should personal familiarity automatically disqualify a candidate?) your stealth requirements for the post are too restrictive in my view.

10.4.2005 10:11am
John S (mail):
I don't even think that you have to go into whether she's qualified or not. She has been close to the President for over 15 years. She has called him "the most brilliant" person she has ever met.

It seems impossible that she could he objective on any case involving executive power and there may be many such cases the next 3 years. This is the main warning of Hamilton.

As to having a well-developed judicial philosophy, it doesn't seem right that this is a strict requirement or the pool of nominees would be very limited.
10.4.2005 10:21am
Dean Esmay (www):
The main warning of Hamilton was that unqualified people would get the job because they were friends of the powerful.

Hamilton himself was a "crony" if by that you just mean he was a close personal confidant and friend with some powerful political figures.
10.4.2005 10:26am
Simon (391563) (mail) (www):
I happen to agree with those who suggest that grand theories of constitutional law are overrated, and that truly diverse experiences among Court members is desirable (practicing lawyers, former elected officials, district court judges, someone from the state courts). However, I don't think that such a broad and defensible principle necessarily implies a defense of Ms. Miers. Of all the practicing lawyers in the country, was she really the best? (5 best? 10 best? 100 best?) Or just the one closest to the president when he made his decision?

I would think one desirable criteria for all Supreme Court nominees, regardless of president or party, would be that one could imagine another president (of the same party, of course) making the same appointment. That is clearly not the case here.
10.4.2005 10:30am
aslanfan (mail):
Is there anything anyone can do to get the WHite HOuse crowd, including Miers, to stop using the phrase "construction construction." After all the good work to define terms in this debate, why, why, why do they insist on using it. Is it a generational thing?
10.4.2005 10:34am
I think that Prof. Barnett's op-ed steers clear of the elitism of which he is accused.

His objection is not that Miers wasn't chosen from the small clique-like group of 50-year-old conservative judges and academics who went to top law schools and whose records display just the right balance between intelligence and avoidance of hot button social issues, nor is it that SMU is somehow "not good enough."

Rather, it's that Miers hasn't held the type of jobs which would prepare someone to engage the issues with which the Supreme Court must deal. Without the job experience to prepare her for the job, the reasonable inference is that she's a crony pick. People who are short on experience and long on personal connections are bad for the country when they're appointed to jobs that not just anyone can do.
10.4.2005 10:40am

White was Deputy Attorney General (#2 in the DOJ). Rehnquist was head of the OLC (the DOJ's in-house Constitutional Law practice). Your best case is Powell, but at least he had been national President of the ABA, not just of one state.

So Miers is less qualified than even the least qualified of the non-judges you named.

It is a strawman argument to claim this is about her not being Ivy-League, or not a judge. The problem is that she has no relevant and distinguished qualifications AT ALL such that she would be any more qualified than any of the hundreds (thousands?) of people who have served as managing partners of firms and Presidents of their state ABAs.
10.4.2005 10:53am
aslanfan (mail):
oops...meant to say "strict construction"
10.4.2005 11:16am
I was all set to agree with Prof. Barnett, but having read Bill Dyer's rebuttal (via the link above), I must say that Dyer really gets the better of Barnett.

To me, though, Barnett really goes astray in his paragraph beginning "To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered 'judicial philosophy'... It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement."

Well, fine, Professor. Then explain to me why Justices Rehnquist, Black, Marshall, Warren, Brandeis, and Jackson were qualified. Does Barnett somehow think that they were unqualified too? Or does he have some evidence that they all "wrestled with [issues involving judicial philosophy] in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires"? If so, then he needs to have explained it. Because there appears to me to be plenty of eminent Justices who lacked the very qualification that Barnett says is so important.

Frankly, I think that just as important as having a "judicial philosophy" is having real-world experience with real, live clients. The kind you don't get in an ivory tower or behind a bench, where you are isolated from the nitty-gritty of the law. I wonder if Professor Barnett can tell us why, to his mind, "judicial philosophy" is so important and real-world experience is meaningless.

(That all said, I STILL oppose Miers, because I don't know enough about her, and I am not going to favor anyone who is a cypher to me.)
10.4.2005 11:28am
Phil (mail):
I am curious as to a factual (perhaps partially definitional) question: to what extent was and is Ms. Miers a practcing attorney?
For instance, how many appeals has she litigated? How many reported cases does she have? How many trials has she first chaired? second chaired? Has she handled any administrative hearings?
I have no strong opposition to Ms. Miers and I am happy that President Bush may be bringing real diversity to the Court; however, if we are really playing the practicing attorney card, don't we need to know the extent of the practice. (Obviously, for the past four years she has practiced not at all.)
Does anyone know any of the factual information referenced above?
10.4.2005 11:28am
Anderson (mail) (www):
I rather wish that Bush had indeed nominated his favorite rock, just to read the vigorous defenses in these comments. Because believe me, there would be some, to judge by the ... remarkable things being said on Miers's behalf.

The idea that some 3d-rate lawyer whose job duties recently included telling us how Barney the dog plays horseshoes, is now being nominated to the SUPREME COURT, is just appalling.

Bush has utter, utter contempt for the legal profession and for the judiciary. All he sees in the high Court is a body that can vote to support his policies or to oppose them, and he wants a justice who will support them. No judicial philosophy, or experience, or comparable credentials, required.
10.4.2005 11:54am
lyle (mail):
Thank you Prof.

But wait...Bush is a genius. Why?

He is going to singlehandedly destroy the Supreme Court. How? By appointing HM, he will show the American people that it is all just a Platonic shadow play in a white marble cave. It's really about getting 5 votes...none of which the People can cast.

What a joke.
10.4.2005 12:01pm
"(Obviously, for the past four years she has practiced not at all.)"

Huh? One doesn't need to go to court to be a "practicing attorney". On behalf of transactional attorneys (who never set foot in court) everywhere, I am offended by your statement.

Miers most certainly HAS been a practicing attorney for the last 4 years.
10.4.2005 12:08pm
Cold Warrior:
1. Miers clearly comes from outside the circle of traditional SCt nominees. She is not an appeals court judge (federal or state). She has not held a high-level executive branch law enforcement office (federal or state; compare Alberto Gonzalez). She is not in academia; nor has she ever demonstrated any particular interest in jurisprudence or constitutional philosophy.

2. She is not just David Souter in a skirt. She is David Souter in a skirt, without a robe.

3. She is a pure "political" choice. By that I mean: a Karl Rove choice. She has her pro-life credentials, having argued (correctly, I believe) against the ABA taking a position on abortion issues. But not in a way that worries pro-choice liberals; after all, this was a position about whether it was appropriate for a professional organization to have an official position. It was not an indication of any pro-life philosophy, much less a pro-life agenda. And it certainly wasn't any kind of statement about the legitimacy of Roe v. Wade and/or the right to privacy. Thus, she'll satisfy the right wingers. She'll probably get a pass from the left, since she's a woman and she is a blank slate with respect to constitutional interpretation.

4. The key point: Bush wants to pay lip service to the conservative (pro-life) faction of the party, but certainly doesn't want to appoint a nominee who would (gasp!) overturn Roe or even suggest (in dicta) that Roe was poorly reasoned. THAT would cause Bush to lose all support among moderates and help turn the next election in the Democrats' direction. Bush may not be smart, but he (and Rove) are politically savvy. Miers is a less attractive (quite literally, too) O'Connor. And that's exactly what George/Karl wanted.
10.4.2005 12:13pm
One last point/question for Prof. Barnett. I wonder if he would tell us whether any of the following attorneys meet his criteria for the Supreme Court: Marty Lipton, Joe Flom, Richard Beattie, Robert Joffe, or Larry Sonsini? If they meet the criteria, what do they have that Miers hasn't? What are THEIR expressed "judicial philosophies"?

And I submit that if any of THOSE lawyers don't meet Barnett's criteria, then there's a problem with the criteria, not the lawyers.
10.4.2005 12:26pm
James Sydney (mail):
Gotta go with Barnett on this one, although the problem isn't so much "cronyism" as it is the lack of any obvious judicial philosophy. (Maybe the philosphy is there, but the presumption has to be that it isn't, since most practicing lawyers just don't think a lot about the subject.)

For all its rough and tumble history, there was nevertheless a general consensus among Justices until roughly the 1930's, that that the constitution was a text that demanded faithful interpretation. With the arrival of the New Deal Court, however, and the ascendance of a mushy admixture of legal realism and positivism, constitutional interpretation has gradually become more fluid. Since the wrong intellectual paths are now well-worn and more inviting, it has become more important to know what kind of philosophical compass a nominee carries.

Unfortunately, I've seen little so far to suggest Miers has given these matters much thought. She will be easily confirmed, precisely because the senators will recognize that, lacking any intellectual anchor, she can be expected to drift with social currents.
10.4.2005 12:30pm
Amused and saddened (mail):
And so we come to lesson number 3,239 in our Intro to "Why The Public Despises The Legal Profession With A White Hot Passion Of Fury" course...

In this lesson we learn that many lawyers and pampered law professors believe that only those who have breathed enough rarefied air to have wholly lost track of reality are qualified to become one of the nine robed demi-gods that rule our fate. Lawyers and pampered law professors strongly believe that one can only properly be ruled by the '1337 (or, as they like to spell it 'elite').

While this position is more than a tad inexplicable to the average individual, it is believed that it makes perfect sense to the average lawyer or pampered law professor. Anthropological studies (see lesson 1,218) have established that lawyers and pampered law professors view the law as something to be made as complicated and ambiguous as possible so that the average citizen living under it can neither understand nor adequately comply with it, thus creating a demand for more lawyers and pampered law professors. Why this line of reasoning actually makes sense to lawyers and pampered law professors remains something of a mystery (this author's personal theory being that it is a result of purposefully induced brain damage in law school, but that remains unproven), but the end result is that any hint of possibility that any individual not deemed fully '1337 might be elevated to a position of power causes panic amongst lawyers and pampered law professors. Presumably some subconscious fear of the possibility of facing logic, fairness, and common sense is at work here.
10.4.2005 12:31pm
Gordon (mail):
Prof. Barnett says:

Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.

As recently as 1970 six of the nine justices had not served on the Federal Court of Appeals, and only one of those six (Brennan) had any other judicial experience.

Being on the Court of Appeals is not a job pre-requisite for being on the Supreme Court.
10.4.2005 12:38pm
Simon (391563) (mail) (www):

That's an interesting question. My thought would be that either Lipton or Flom would be good choices (not only do they know an area of the law that the Court itself is institutionally unfamiliar with, but both in some real sense pioneered that area.) The same might be said of Sonsini, and the experience he has had in the high tech area. Those three, I think, are easily distinguished from Miers.

I don't know about Beattie and Joffe, either 1) if they are distinguishable from Miers, or 2) if they deserve a SCOTUS appointment. It's a bit elitist to say that I trust them more because I'm familiar with their work (and Simpson and Cravath lawyers more generally) and not with Miers, but it's probably true. But I don't know whether that trust is particularly relevant to a SCOTUS appointment. What would they bring to the Court? What have they done that suggests they deserve appointment? (Keeping in mind that if running a complex firm was at all relevant we would find some way to put Jeff Immelt on the bench.)
10.4.2005 12:39pm
DC Lawyer (mail):
A few thoughts. First, I would remind you that the Constitution does not even require that a Supreme Court Justice be a lawyer. In the past, politicians and practicing lawyers have been appointed and they rank among our best (and most significant) justices. Judicial service is not a necessity.

Second, grand constitutional theories are overrated. The job of the justice is to decide cases not theories. I'd actually find it refreshing if Miers (like Roberts claimed himself) does not have one.

Third, much of what the Supreme Court does is not Constitutional law and does not require grand lofty theories -- it is statutory interpretation, habeas corpus, evidence, standing, civil procedure -- the kinds of things that practicing lawyers grapple with every day. Supreme Court practice is not all about rights, the 14th Amendment, and weighty social controversies. How is an academic (or someone who has "grappled with constitutional questions") better suited to this than a litigator?

Fourth, Prof. Barnett seems to succumb to the same hubris that now infects the Supreme Court bar. It used to be that, with a few exceptions, cases came to the Supreme Court argued by the lawyer that brought them. Now bar makes you feel like you're commiting malpractice if you don't immediately upon grant of cert hand your case over to Ted Olson, Seth Waxman, Tom Goldstein, (formerly Roberts), one of the other big firm, big professor "specialists." I'm a proud member of the Supreme Court bar, and other participating as amicus, I'll probably never have a case of my own. But if I ever get a case up there, you better well believe I'm arguing it myself. I'm not handing it over to the Prof. Barnett's of the world who think they're superior just because they have a grand theory (and in Prof. Barnett's case, I believe, a flawed one) of the law.

There's no question Miers is qualified. Is she the MOST qualified, as President Bush just said. Certainly not. Is she my pick? Hell no. But the notion she's not capable is elitist pablum.

Newsflash: There are more than 30 people in America qualified to serve on the Court.
10.4.2005 12:48pm
Shelby (mail):
I'd be a lot less skeptical of Bush's cronyism if his cronies were more competent. The long-time allies who have solid credentials all seem to come from his father's connections, not his own -- with the possible exception of Condoleeza Rice. Maybe it's because I'm not a fan of W, but he seems to place far, far more faith in his judgment of people than actual results would justify. (Yes, Putin, I'm looking at you.)
10.4.2005 12:49pm
SimonD (www):
Apparently I must be a member of the legal elite (no small achievement for someone who never graduated from law school), because I 100% agree with Prof. Barnett that:
To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate.
As I noted recently at Althouse, rebutting Ann's view that our new Chief Justice's qualifications were so overwhelming as to render any vote against him per se indefensible:
I do feel that it is perfectly reasonable to ask what the judicial philosophy of a person going on to the Supreme Court might be. It seems perfectly appropriate to ask if a candidate views the court as some kind of superlegislature (or perhaps a "super-duper-legisalture") entitled to ensure that the nation's laws conform to the evolving standards of decency of Americans, or whether the candidate views the court as being a court, leaving questions of the widsom of laws - and the updating of the constitution - to the democratic process.
I also approached the question of judicial philosophy from a different angle at my own blog:
Whether the results a Justice prefers are liberal or conservative, if they think in terms of results rather than process, they're just another flavor of dead wrong. This is not merely a rhetorical point, but one with real significance for the likely direction of the court. If one favors process, and follows process in a given case to whatever result is compelled by the law and the facts, then process does not really change in time. But, if you favor results, and are in the habit of choosing results and then finding a reason to come out that way, as you change - which, with age, we all inevitably do - the results you prefer may well change.

...I'm not saying that she's a Souter[;] I'm saying that she has all the appearences of a Kennedy: today a conservative, who chooses conservative results and finds a plausible rationale - but in ten years, fifteen years, twenty years, who knows what results she might prefer. By contrast, I feel very confident in saying that in twenty years, Clarence Thomas will still be ruling essentially the same way, even if his personal proclivities have changed, and if Scalia can hold out that long, so will he.
Relatedly, WB points out that Prof. Barnett's criterion would disqualify our new Chief Justice:
John Roberts said many times that he had no "judicial philosophy." He did expound at some length on the role of a justice, but on the other hand, while he clearly knew the cases, he said essentially that judicial philosophy is the domain of academics and arguments in law review articles. Does this make him unqualified in your assessment...?
I agree with the underlying premise, but would (and have) put it more explicitly: I did not support Chief Justice Roberts because I felt then - and feel now, in relation to Miers - that the sine qua non of an appointment to the Supreme Court is not the number of years one has served on the bench, nor a fanatically detailed knowledge of the law, nor some weird "diversity criteria" that one meets. The sine qua non of an appointment to the Supreme Court, in my view, is "what does this person think that the Supreme Court does and the Constitution is? Put another way:
We need to know how this person sees the role of the Judge; do they apply the law or develop it? Do they believe that the Supreme Court is a common-law court, where precedent controls, or an Article III court, where the text controls and precedent is merely a guide? What is the Constitution to this person? Under what circumstances will they overrule a case if they feel it was wrongly-decided?
(Emphasis in original).

I felt that, so far as Roberts revealed a judicial philosophy, it was a judicial philosophy which could not be reconciled against my view of what the Supreme Court should do. Prof. Barnett has previously noted that it is an open question whether our new Chief Justice will be any friend to the original understanding; I agree. If I needed an advocate to argue before the Supreme Court, I would call John Roberts (sorry, Randy); if I wanted a Chief Justice of the United States, I would have called Sam Alito, or Emilio Garza, or Michael McConnell, or Steven Calabresi, or any number of other qualified, solidly conservative and to great extent originalist choices that were available to the President. To the extent that the same choices were available for this nomination, the selection of Miers leaves a bitter taste in the mouth - not least because, as I posited here:
...Originalists tend to restrain government, because the constitution is explicitly designed to make government more difficult for the governors. It seems to me that President Bush is determined to put conservative judges on the court, and is well aware that as the conservative majority emerges and solidifies, if the court places limitations on government, that will de facto limit the conservative movement. I fear that the GOP has been but a fairweather friend to the original understanding; the concern is not that Harriet Miers is a blunder, the concern is that the President knew exactly what he was doing.
(Emphasis added).

AnonymouslyYours worries that this requirement would tend to favor "those nominees who have had, at one point, a position in academia." I agree, but don't think that's a bad thing; I don't think it's a bad thing to have a lengthy record developing and espousing a certain philosophy. Not only would this mean that we don't have to take these absurd leaps in the dark on candidates (will they be another Souter? Another Kennedy? Another Rehnquist? Surely the whole need to ask the question is a prolem; no one ever had to ask whether Robert Bork was going to be "another Stevens" or "another Blackmun"), but on the flipside, there is a deeper and more concerning problem with requiring the absence of a paper trail for confirmation, as David Wagner points out today:
My concern is that open advocacy of conservative legal views is now a definite disqualifier for the Supreme Court...Whether you're in practice, in academia, or on a lower court, the crime of being conservative in a public place now means no one will appoint you to the Supreme Court. It's not even clear that Federalist Society membership will be tolerated when it comes to picking high Court nominees.

Watch for the next generation of conservative legal thinkers to go silent on the big questions, leaving no indication of who they are, making no disciples, and forcing the next conservative administration -- if there ever is another one, which must now be considered in doubt -- to trust to sheer luck in finding them. Assuming, that is, that it even wants to find them.
(Emphasis mine). What will the conservative legal movement do if the intellectual base that fosters it dries up?
10.4.2005 12:57pm
Simon (391563) -

I didn't mean to imply that Miers actually IS as good a lawyer as is Lipton, Flom or the others. I have no idea, and the brief bios I've read don't give you enough information on which to make a judgement. Frankly, I wouldn't have any idea of ANY Texas lawyers who fit that bill.

All I meant to express was that I found offensive Prof. Barnett's statement one needs an expressed, well-considered "judicial philosophy," including an internalized view of the Constitution. This includes (conveniently, for Prof. Barnett) most ivory tower law professors, but excludes virtually every brilliant transactional lawyer of which I am aware. And that seems to me to indicate that there is a problem with the criteria, not a problem with the lawyers.
10.4.2005 1:36pm
eddie (mail):
Two questions for most of the bloggers:

Where was your indignation at the depth of the unknown factors and scrupulously guarded private opinions that our newly sworn-in chief justice so skillfully and lawyerly protected?

And what's happened to the deference that is required when dealing with presidential appointments (i.e. when it's democrats objecting to a blank slate somehow they are acting unconsitutionally but in this instance it's so obvious that an objection must be made)?

And you are all surprised and suddenly aware of the rampant cronyism. A cronyism that does not even attempt to find a qualified crony.

And this is the values president?

But most of all please spare us all of the righteous fervor decrying cronyism or the politicization of this process. Sometimes you actually get what you deserve.
10.4.2005 1:46pm
Ian Zink (mail):
I find it interesting that the article mentions the "advise and consent" duty of the senate, when it was in fact a senator (Reid) who recommended Miers.

This is a counter point to the cronyism claims. If cronyism is electing an unqualified friend to a position of power. Wouldn't the foremost opponent to any nominee recommending an individual make that person not a crony, but have bi-partisan support?
10.4.2005 1:48pm
Simon (391563) (mail) (www):

I think we agree more than we don't. While I admire Randy's work, and his efforts to bring some sort of coherence to constitutional interpretation, I think that he overestimates not only his own success but the need for others to be similarly "successful."

I would still like to press a bit on what criteria we might apply to practicing lawyers (whether litigators or transactional types) to evaluate whether they are qualified SCOTUS nominees. What sort of things should we look for? Deep experience in a single field (a la Lipton) or someone -- more likely a litigator -- who has spent time in significant cases across many substantive areas (David Boies?) Someone with inside-company management experience? (I don't think managing a law firm is all that significant.) What about someone with significant criminal experience?

If I was going to suggest one name who might serve as an exemplar for these sorts of discussions I would mention Bob Fiske. He's served at all ranks in significant criminal and civil practices (the SDNY US Atty office and Davis Polk, respectively), has been active on legal policy-making committees, counseled individuals and corporations, and even served as an independent prosecutor (before Ken Starr). I would think that these are the sorts of experiences that we would look for in a SCOTUS nominee who comes directly from private practice.

The question is, then, does Miers meet this standard? (Well, that may not be a fair question b/c I'm not sure how many lawyers would.) Does she come close?

Maybe. I don't see it, but I'm willing to let someone persuade me.
10.4.2005 1:50pm
Newt Jackson (mail):
Wasn't Felix Frankfurter a poker-playing crony of FDR? OK, I know, he also a law school professor, but doesn't that fact presumptively disqualify him from the highest court?
10.4.2005 1:58pm
Ken Willis (mail):
Bush had to pass over a lot of conservative talent to get to Miers. Such a missed opportunity. An act of cowardice as well.
10.4.2005 2:02pm
The problem isn't that Ms. Miers is close to the President. And the problem isn't that she lacks a well-considered judicial philosophy, though that would certainly be a plus. The problem is that if anyone else were president, Ms. Miers wouldn't even be considered for the nomination. If she were truly qualified to serve on the SCOTUS, this wouldn't be true.
10.4.2005 2:47pm
Thorley Winston (mail) (www):
He is going to singlehandedly destroy the Supreme Court. How? By appointing HM, he will show the American people that it is all just a Platonic shadow play in a white marble cave. It's really about getting 5 votes...none of which the People can cast.

I wasn't aware that President Bush was involved with the "Switch in Time that Saved Nine."
10.4.2005 3:11pm
Anderson (mail) (www):
Thorley, you do of course remember that the "switched" Justice Roberts wasn't an FDR appointee, and that the Court-packing notion went down in flames?
10.4.2005 3:19pm
Craig Oren (mail):
It reminds me of the quote from Justice Matthew Tobriner, who served on the California Supreme Court from his appointment in 1962 by Governor Pat Brown to about 1977. An earnest young man once asked Tobriner what one should do to become a justice of the California Supreme Court. Tobriner replied, "Judging from my experience, the most important thing is to go to high school with a future governor of California!"
10.4.2005 3:21pm
Thorley Winston (mail) (www):
Thorley, you do of course remember that the "switched" Justice Roberts wasn't an FDR appointee, and that the Court-packing notion went down in flames?

Which is interesting but not really relevant to the point I raised, namely that FDR's proposed court-packing plan (which had its desired effect even without getting passed in the Congress) shows that the Supreme Court has been "really about getting 5 votes" for far longer than George W Bush has been in office.
10.4.2005 4:08pm
Choosing Harriet Miers is the worst decision Bush has made in his Presidency. This is the Supreme Court we are talking about. No argument that Miers is nearly as qualified for the Supreme Court as dozens of other younger brilliant conservative jurists could possibly pass the laugh test.
I have supported almost everything Bush has done, and John Roberts was an amazing choice, but the nomination of Miers is a mockery to the Supreme Court as an institution. We can only hope that she is rejected and Bush has the guts to nominate a truly brilliant legal mind like Luttig or Estrada.
10.4.2005 4:18pm
Karen A. Wyle (mail) (www):
The discussions of whether Bush picked Miers in order to have a reliable friend on the Court made me think of Jean Anouilh's play Becket. I have a post on Looking Around discussing this in more detail -- suffice to say that some jobs have a sufficient gravitational pull to remove a satellite from its prior orbit....
10.4.2005 4:27pm
Texas Conservative:
The crux of the Barnett's argument against Ms. Miers is that she would probably not have been appointed if she were not a good friend and confidant of Bush's. This seems like a sensible argument.

The rebuttals to his argument seem weak, with many people arguing, in effect, that the appointment of Ms. Miers is no different from the appointment of other SCOTUS judges (e.g., Thomas and Rehnquist) because the other appointments were also questionable under some criteria (e.g., judging experience, publishing record, judicial philosophy).

People who support Miers (or rail against Barnett) seem to be saying, in effect, "It happened before with X" without asking whether X had other outstanding credentials or whether X's appointment was, in fact, questionable. Just because a current or former SCOTUS judge was elevated to the highest court in the land based on similar (questionable) criteria, does not mean that we must endorse future candidates based on the same criteria. If a prior judicial appointment was based on questionable criteria -- no or little judging experience, no obvious judicial philosophy, no written record of philosophy -- then the appropriate tack would be to criticize the basis of the previous decision and argue that future appointments should not be based on those criteria.

Cronyism cannot be seen directly. You have to infer it based on evidence (or lack thereof), and this certainly seems (so far) like a good case.
10.4.2005 4:53pm
Bill (mail):
It would be interesting to have a list of all Supreme Court nominees who were not judges, academics, or others in a position to have developed considered views on all of the topics Prof. Barnett mentions. I believe that the list is long and includes Earl Warren. So, I think that Ms. Meyers is being somewhat singled-out.

Of course, her relation to the president is an additional problem with the nomination. But there are other people to be cronies to besides the nominator and we should consider what difference it makes to whom one has ties and loyalties. Consider the several nineteenth century justices who came out of corporate law practice, especially ones with ties to railroad interests. (BTW, those people also did not have any better occasion than Meyers to consider the "profound" constitutional questions that Prof. Barnett mentions.

Lastly, I'm curious about the channels by which a non-lawyer president (This one in particular seems to lack legal reasoning skills.) might influence an appointee. Obviously it is conceivable that a president might "suggest" that a justice come down on one side or the other, perhaps making the majority. And the president could bring the legal expertise of others to bear on the way an opinion is written, simply by "asking" the justice to "consider" their views on the case. But note what different (though equally problematic) scenarios these are.
10.4.2005 5:14pm
SimonD (www):
It would be interesting to have a list of all Supreme Court nominees who were not judges, academics, or others in a position to have developed considered views on all of the topics Prof. Barnett mentions. I believe that the list is long and includes Earl Warren.
Is the fact that Earl Warren had no judicial experience either supposed to make conservatives feel better? Heck, why not just point out that David Souter didn't have a paper trail either, I'm sure that's very reassuring to those who read this statement from Senator Cornyn with scorn and disappointment:
Sen. John Cornyn, a Republican from Miers' home state of Texas who has known the nominee for 15 years...[says] "She is obviously not a Scalia or a Thomas"
Didn't the President campaign explicitly on the promise of another Scalia or Thomas? See,. it's hard to get a feel for tone, but I think in the quote above, Cornyn is saying that in a fairly neutral tone, whereas mostly everyone who gave up kool aid years ago is saying "She is obviously not a Scalia or a Thomas" in a very, very different tone. A rather more angry, betrayed sort of tone.
10.4.2005 6:00pm
Ghost_of_Solon (mail):
Is Harriet Miers W's secret Stepford Wife? These quotes fill me with much more dread than the the arguments about her potential lack of judicial philosophy:

"I know her heart," he said. "I know what she believes....She knows exactly the kind of judge I'm looking for and that's exactly what she'll be." -- President George W. Bush

"Many colleagues in the White House consider her personal views a bit of a mystery because she has subordinated them to the president's views." -- Michael Grunwald et al., A Deep Dedication to the President, and to Her Work, Washington Post, Oct. 4, 2005, at A01.

Given that we have a President who is looking to regain focus for the remaining 3 years of his term of office and she acted as his personal lawyer, does she possess the kind of independent mind necessary to take a stand and tell the Executive Branch "you're wrong?"
10.4.2005 6:12pm
It is true that Rehnquist didn't have prior judicial experience, but he did graduate first in his class from Stanford Law School and had a great deal of impressive experience after that (e.i. clerked for the Supreme Court.). Mier's law school performance and post-law school record doesn't hold a candle to Rehnquist's.
She is qualified to be a Federal District Court Judge or maybe a high level State judge, but certainly not the Supreme Court of the United States which required a legally brilliant mind.
Randy is correct when he says that this is a cronyism nomination. She is objetively unqualified for the position and is only appointed because of her personal ties with Bush. Any Senator that votes to confirm her should be ashamed of themselves.
Her nomination is a blessing for Democrats because she may end up to be very moderate and even if she is conservative she is unlikely to be able to influence any other Justice's opinion. She is also not going to write as convincing opinions as some of the other candidates could have written had they been nominated.
Can anyone that supported Robert's nomination give me a reasonable case that she is actually a better pick than Karen Williams, Janice Rogers Brown or any of the many people who are more qualified than her?
10.4.2005 6:13pm
not a lawyer:
A person with a good high school education can read and understand the constitution. I takes someone with a judicial philosphy to make a mess of it. Kelo anyone?
10.4.2005 6:22pm
I think Randy's arguments assumes facts not in evidence...

As far as I know, the Constitution is silent on the issue of whether a 'well-considered judicial philosophy' is required of a nominee, as it likewise expresses no preference on whether a nominee must have played in the minors before moving up to the big league.

As much as Randy (and others, including, I guess, most law professors and attorneys specializing in Constitutional law) might like a nominee to have to have certain notches on their resume before daring to have their name placed into nomination, the Constitution pretty much says that whether someone is or isn't qualified for the Supreme Court is in the eyes of 52 beholders... the President and the 51 Senators who need to go along. If they say Qualification X is sufficient, then by definition, Qualification X is sufficient.

cross-posted at ThoughtsOnline
10.4.2005 6:36pm
Unnamed Co-Conspirator:
Ok, not a lawyer, I'll go along with your first sentence, but just because someone with a judicial philosophy can mess up the constitution doesn't mean that we're better off entrusting it to someone without one. I'm interested in how would you have decided Keo and how would your decision would have made less of a mess of the Constitution than the decision of the Court?
10.4.2005 6:47pm
Unnamed Co-Conspirator:
Lawbot, the worshipful reverence of the Supreme Court has given us a pathological reliance on stare decisis, elevating wrong decisions of the Court above the constitution itself, so as to avoid an undermining of the Court or its self-import-- I mean importance. I don't like the Miers nomination either, but only because there are apparently better qualified people available -- her nomination hardly seems like a mockery of a Court on which far less qualified judges now sit -- Ginsburg, Kennedy, Breyer and Souter to name 4.
10.4.2005 7:03pm
Veggie_Burger (mail):
It's interesting to me that she got a bachelors in math from Southern Methodist University. That's a sign of a logical mind. Was her decision to go to law school an afterthought? She gets my vote as the most mathmatically qualified person for the court. Certainly she's more mathematically qualified than 99.99% of the people who are knocking her on this blog. I say that with statistical certainty, or is it uncertainty? I was never very good in statistics, were you?
10.4.2005 7:26pm
Gordon (mail):
Unnamed Co-Conspirator: Well, in my humble opinion, there are two far less qualified judges on the Supreme Court now, not four.

Their names are Scalia and Thomas. One recently jettisoned his dogmatic originalism and federalist principles conveniently in a case involving states' rights to have their own more lenient marijuana laws. The other seems so embittered by his nasty confirmation experience that he is hell-bent to continually shock us all with extreme concurrences and dissents.

Actually, I don't really believe this about either of these two sitting justices, especially not Clarence Thomas. My point is that I assume you are offended by the rhetoric I just laid down in this post. And I am equally offended by your claim that any justice you disagree with is automatically "unqualified."
10.4.2005 7:29pm
Unnamed Co-Conspirator:
Gordon, don't get your panties all twisted up over this -- it was merely a fortunate coincidence that my comment addressed to Lawbot found a soft target. I must admit that I had not read your comment. Anyway, I didn't say that that Ginsburg, Souter, Breyer and Kennedy were unqualified, just less qualified than Miers, who has so far demonstrated no inclination to make up new provisions for the constitution or revise the ones already written. She may prove to be a fabricationist like the four I mentioned, but from the little we know, probably not.
10.4.2005 8:08pm
Gordon (mail):
Unnamed Co-Conspirator:

I assume by "fabricationist" you mean "believer in a living constitution?" :)
10.4.2005 8:13pm
not a lawyer:
Unnamed Co-Conspirator I'm interested in how would you have decided Keo and how would your decision would have made less of a mess of the Constitution than the decision of the Court?

It is pretty simple. O'Conner nailed it.
10.4.2005 8:19pm
Veggie_Burger (mail):
I didn't like Prof. Barnett's hostile piece against Ms. Miers. It seemed more like a rant against cronyism; something more appropriate for a high school civics class, and not worthy of a big time law professor.

It is clear that Bush favors nepotism as a general policy, but to charge him with cronyism in selecting a Supreme Ct. justice is a very serious accusation. Prof. Barnett is saying that she is unqualified for that position, and his little essay on cronyism was lacking in substance to back up that libellous charge.

It never ceases to amaze me when famous lawyers commit obvious torts, such as the defamation against Ms. Miers. Prof. Barnett needs to be slapped with a lawsuit, and made to compensate Ms. Miers for the damage he has caused to her reputation. The jury should make him pay dearly; a law professor ought to know better.
10.4.2005 8:48pm
SimonD (www):
I didn't say that that Ginsburg, Souter, Breyer and Kennedy were unqualified, just less qualified than Miers, who has so far demonstrated no inclination to make up new provisions for the constitution or revise the ones already written.
Yes, but she has had no opportunity to do so!

In our haste to clear out the deadwood, we should try to avoid weighing ourselves down with deadweight. There is nothing in Miers' record that suggests that she will be an originalist, and a very strong presumption that she will not be.

Why ths trong presumption? Consider her mindset and experience. She has spent twenty years as a lawyer, and a lawyer that can afford to eat is a lawyer who is results-oriented; they are paid to present a compelling case for a given outcome, not to determine whether their client is right or wrong according to the specifics of the law. So Miers' primary view of the law is precisely what originalism, being process-oriented, stands in diametric opposition to.

This would be less of a concern, of course, if Miers had a strong, clearly articulated judicial philosophy, or a record of having thought deeply about the constitution, its meaning and interpretation. But she does not; virtually every single Volokh co-conspiritor has written more in the public record about the Constitution in the last ten days than Harriet Miers seems to have written in the public record in the last ten years. This being the case, I think thre is a very strong presumption that she will reach the court, and draw on every ounce of her much-vaunted "real world" experience. She will determine the (probably conservative, this decade) result that she wants and support it with such materials as are available.

In this regard, she will be no different to Justice Ginsburg, Kennedy or Breyer choosing their preferred result and selectively citing precedent - foreign or domestic, as available - to support it. And I don't believe in putting just another flavor of dead wrong on the court.
10.4.2005 10:14pm
Unnamed Co-Conspirator:
Well, not a lawyer, I still agree with you on your first point, but you haven't convinced me yet on the second. O'Connor would have applied the Takings Clause of the Fifth Amendment to the States through the 14th Amendment and, once that obstacle is cleared, held the action of New London in violation of the US constitution (for reasons that I agree with, btw). It's the "through the 14th Amendment" part, which O'Connor merely states but doesn't explain, that should be the problem for a non-lawyer who likes the policy of O'Connor's conclusion, but still wants the decision to be consistent with the language of the Constitution -- as you said, the language that anyone with a HS education can understand. The tortured reasoning for that application has long been accepted by lawyers and judges, but I don't suppose you're willing to assume that they're right, just because they're suffering under the disability of a legal education. Where in your non-lawyer's reading of the constitution's language do you find anything that makes the Fifth Amendment applicable to the States, rather than just the national government? Would that be your non-judicial theory of substantive due process, or would it be something else, perhaps just a desire to reach a particular result? I always figured that only a lawyer could convince himself that an oxymoronic notion like "substantive due process" made any sense at all, but maybe the harmful effects of legal education have spread into the general population. Is there some other explanation?
10.4.2005 10:56pm
Unnamed Co-Conspirator:
Gordon, yes, "fabricationist" would be someone who believes in a living constitution.

SimonD, I think W made a wrong choice with Miers, but at least she hasn't already demonstrated that she buys into the living constitution nonsense. She might be every bit as bad as Ginsburg, Souter, Breyer and Kennedy, but I doubt it.

I'm hoping that the Republican Senators aren't willing to just trust W on this one. W saying that she shares his judicial philosophy gives me no comfort whatsoever -- don't forget that it was W who signed McCain-Feingold into law.
10.4.2005 11:04pm
I think we are dealing with a specialized application of Groucho's maxim that he wouldn't want to belong to a club that would have him as a member. I am a mid level partner at a good mid market law firm. I'm not well-networked, yet I know a number of lawyers with a similar resumes and accomplishments (other than the perosnal connection to the president). Certainly there are hundreds, perhaps thousands, of lawyers across the country that are interchangable with her. I will flatter myself and say that if I had different priorities, I could have similar accomplishments. Their accomplishments are praiseworthy, but I'm damn sure that neither I nor ay ot he people I know are Supreme Court material
10.4.2005 11:10pm
of course, she probably does proofread better than I do. That's "neither I nor any of the ..."
10.4.2005 11:12pm
not a lawyer:
Unnamed Co-Conspirator,
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Kelo effectively changed the wording of the fifth amendment.
10.5.2005 12:51am
SimonD (www):
I think W made a wrong choice with Miers, but at least she hasn't already demonstrated that she buys into the living constitution nonsense.
The point that I'm making is - in what circumstances would she have had call to do so? It's like saying that I'm not aware that Aria Giovanni has any particular record on substantive due process, or that Paris Hilton hasn't yet demonstrated that she buys into the living constitution nonsense. This is not, in or of itself, a reason why we should have Ms. Justice Giovanni (although there are, surely, other reasons one could think of for that scenario). They have never occupied a role in which they could conceivably have had the opportunity to demonstrate such views, and so far as anyone can say, neither has Miers. Therein lies the problem.

So she's been a lawyer for many years - big deal. So have a majority of the people who read this blog. I've never been a pizza chef, but I've often enjoyed pizza - does that qualify me to a lifetime tenure as head chef at Papa John's (answer: evidently yes, provided if I'm a personal friend of the titular father).
10.5.2005 1:38am
David M. Nieporent (www):
This is not, in or of itself, a reason why we should have Ms. Justice Giovanni (although there are, surely, other reasons one could think of for that scenario).

The confirmation hearings would probably get pretty high ratings.

Unfortunately, I think even her considerable talents would not be enough to salvage Playboy's Girls of the Supreme Court issue.
10.5.2005 2:30am
Her resume doesn't glow, but all this talk about her being "unqualified" is over the top.

The real issue (at least for me) is that conservatives were lukewarm about Roberts (except, maybe, Orin Kerr with his "man crush"). We admired his intellect but worried that he would not be the jurist we were promised. His confirmation hearings seemed to confirm our fears. Now we're handed another blank slate. WHY? We have 55 Republican votes. I can only think Bush has no courage for a fight or he REALLY is giving us pro-Roe squishes. To add insult to injury, there are none of the mitigating factors which were present in the Roberts case.

I don't like the precedent of the "stealth nominee." I think Americans deserve and should expect a public conversation about the role of the Supreme Court with each nominee. I think a nominee should have a significant public record related to matters of constitutional interpretation, and that record should be sufficient enough to allow for some illumination about the candidate's judicial philosophy or lack thereof.

Then, of course, is the bare political reality that "stealth" nominees haven't worked out so well for Republicans. Enough is enough. If we can't appoint a Scalia-like textualist because we don't have the votes (which I doubt), then so be it. But enough of the "stealth" nominees. The American people deserve better than a game of Russian roulette.
10.5.2005 3:23am
Phil (mail):
Sorry for the long delay, but real life intruded.
I am still puzzled by the argument about Ms. Miers qualifications when no one has spelled them out in any detail. In light of A.S.'s concerns I will also add the additional question (my earlier questions were about litigation or quasi-litigation experience): Other than the law firm, what transactions has she done as a lawyer (particularly in the past five years)?
Since AS was reacting to my assertion that Ms. Miers had not been practicing law for the past four years, I assume he has a counterexample regarding some transactional work she has performed.
(I realize that, as a technical matter, simply giving clients advise is practicing law. I also realize that theoretically, an attorneys's advice could be so effective that a client never ends up needing any documents prepared or litigation performed. It is, however, hard to imagine 30+ years of such practice. More important, such practice, while effective, might ill prepare one to be a Supreme Court Justice.)
10.5.2005 5:45am
Unnamed Co-Conspirator:
Privileges and immunities of a citizen of the United States? So, in addition to being the basis for the right to travel freely across state borders, national citizenship is the foundation of the right not to have a state government take private property for a public purpose rather than for only a public use? I'm not sure I'm entirely comfortable with the idea that such a right exists only because the states decided to form the union, rather than being something more fundamental. Any other reason you think the Takings Clause of the 5th might apply to the states? Or maybe it just doesn't, and state constitutions and laws are supposed to deal with matters not concerning matters of only state and local concern. Isn't that what having a national government of limited powers means?
10.5.2005 10:27am
SimonD (www):
More important, such practice, while effective, might ill prepare one to be a Supreme Court Justice.
Indeed, quite the contrary, as it seems to me.
10.5.2005 12:35pm