Earl Warren Burger Is Miers' Favorite Justice?--

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."

Bill Dyer (mail) (www):
My guess is that Ms. Miers' answer may have reflected her familiarity with and approval of Chief Justice Burger's involvement with the American Bar Association, which I seem to recall being quite substantial. If so, that may not be terribly reassuring to those already critical of her own ABA involvement. However, in the days of the Burger Court, the ABA hadn't yet become quite the left-leaning special interest advocacy group it is now. Just a hunch; perhaps someone will ask something that throws more light on this during her confirmation hearings and we'll all get clued in then.
10.7.2005 4:34am
Gee Jim, I have to pause and wonder about your frequent posts on this topic. I can understand why some contributors (like Randy Barnett) who are known to be deeply concerned about different judicial philosophies (and perhaps ushering in new ideological eras of the court) would be so distressed with Mier's nomination. However, it is you who seems to be most focused on using your contributions to this Weblog to tear her down or cast her in a less that respectful light. Why is that? A slow teaching semester? That good old Northwestern U elitist arrogance making its inevitable appearance?


A graduate of a REAL chicago law school
10.7.2005 4:44am
Jim Hu:
Googling "Warren Burger", the <a rel="nofollow" href="">top hit </a> yields this:
<blockquote>"History will record that Warren Burger was one of the greatest chief justices," said federal appeals Judge J. Michael Luttig, a longtime friend who once clerked for Burger.</blockquote>
Given Luttig's place on so many coulda shoulda lists, what does this mean?Burger's Wikipedia entry calls him a "strict constructionist" with emphasis on separation of powers and also notes that Burger's court ruled against Nixon on Watergate...given the cronyism charges, could this be an attempt to assert independence?
10.7.2005 4:51am
Jim Hu:
Oops...what happened to the html? looked ok in the preview.
10.7.2005 4:52am
A Guest Who Enjoys This Site:
Just out of curiosity, are we going to need a special prosecutor to investigate this particular leak? Who, specifically, are the "people with knowledge of the exchange?" There couldn't be the possibility of a political agenda behind the leak, could there?

However, assuming for the moment the truth of this information, I would like to see someone ask her this question again, on the public record, just to see what HER, detailed, considered explanation might be.
10.7.2005 5:01am
A tweak on the third possiblity is that she meant to say she admired Warren Burger but wasn't sincere about it. She's merely naming Burger to demonstrate that she too can be a flexible conservative when it comes to a case like Roe. I'm imagining a conversation where she feels the need to ingratiate herself a bit with her liberal questioners. Faced with impressing Leahy, she immediately thinks of liberal great Earl instead of the ho-hum Burger. Awkwardly, she can only stutter Warren. Charitably, I guess that means she's not a smooth liar.
10.7.2005 5:33am
Jeff Davidson (mail):
Ms. Miers may admire Warren Burger because of his academic background and his ability to nevertheless ascend to the position of Chief Justice. Burger was a night-school college student who supported himself selling insurance, and went to a less-than-top tier law school. I don't know if the legal community was as sharlpy divided and seemingly elitist as it seems to me (as an outsider) today as it is then - maybe someone else has some perspective on that. Even this blog, much as I enjoy it, strikes me as elitist in tone when discussing the merits of the graduates of various law school.
10.7.2005 6:41am
Solid State (mail):
I'm wondering how long it will take for one of the posters here to get tired of hearing the term 'elitist' thrown around and makes a pricipled defense of 'elitism' as a derogatory term for our society's best attempt at meritocracy.

Is requiring certain types of qualifications to get job X elitist? I presume no one thinks we should pick a random relatively distinguished non-lawyer from the general population and make them a Supreme Court Justice. If we picked the CEO of a major firm there would certainly be evidence of a certain type of excellence. Additionally, Joe the CEO would be even more 'outside the legal elite' and able to imagine how non-lawyers are impacted by court decisions. Is there something complimentary to say about Miers that you couldn't say about the CEO of a multinational coorporation?

So, I have higher standards that some folks. I want Supreme Court Justices to have definitive evidence (before being nominated to the court) that they possess one of the top scholorly legal minds in the nation. Standards appear to become elitist when they exceed those of the person making the accusation. Miers' supporters have one set of standards for SCOTUS, that she meets; I have another - which appear to be higher. Elitism?
10.7.2005 6:59am
Solid State,

Unfortunately, there probably is a little pure elitism mixed into some (but not all) of the critiques of Miers' qualifications (see, for example, Ann Coulter's discourse on SMU). So, her defenders try to claim that ALL critics of her qualifications are elitists, and hence that ANY criticism of her qualifications is elitism. Of course, that is nonsense, and no one really buys it, but what else can they do? It is just impossible to defend Miers' qualifications on their own merits.

Anyway, I gather this Warrengate issue is not going over well with conservatives. Personally, I am going with the theory that she really did mean Earl Warren, and this was an inadvertent moment of honesty which she tried to correct. But who knows?
10.7.2005 7:26am
Jon Rowe (mail) (www):
Ted Baxter?? He sounds more like Judge or should I say "Justice" Smails.
10.7.2005 9:18am
The most plausible explanation to my ear is that Ms. Miers, like many lawyers who are not Supreme Court junkies, simply had no idea who her favorite Supreme Court Justice might be. I find it unlikely that she would have answered with Burger's first name if that was who she truly had in mind.

Yes, it's possible she admired Burger because he sold insurance to put himself through law school, but I wouldn't say it's the most likely explanation.

I think this post is more remarkable for the dirt it dishes on Burger than for what it says about Miers, but then again, I do fall into the category of Supreme Court junkie.
10.7.2005 9:55am
Daniel San:
A practicing attorney may be familiar with many Supreme Court decisions, but have only a vague notion of which justice authored which opinions. In terms of practical lawyering, a SCOTUS opinion is a collective work. The particular author is of historical interest only. It tells us nothing new that Meirs seems to have a hard time discussing the work of particular justices.

Maybe Warren Burger is her favorite. After all, she seems to have an aptitude for administration and bureaucratic mechanisms.

Maybe she really does admire Earl Warren. He had a strong intellect and was an impressive leader of the Court who was often able to accomplish what he wanted and make the relevant structures (including teh Constitution) fit it.

Either way, her choice is a bit disturbing. But I think only a law professor would be very bothered by the inability to quickly name a favorite justice.
10.7.2005 10:05am
fred (mail):
If the question had been name 5 retired Justices, her answer would have been the same.
10.7.2005 10:13am
Get used to this as the Miers nomination discussions move on. She's obviously not a Supreme Court junkie like many of the folks on this site and that's going to be, well, strange to a lot of the posters. I think it's justifiable that a nominee for the Supreme Court would have well developed opinions on favorite Justices, least favorite Justices, favorite and least favorite opinions or lines of opinions, etc. That someone has really experienced enough heavy appellate litigation to be qualified for the Supreme Court (and thus, form these types of opinions along the way) is hardly elitist. I think Ann Coulter is the only one to bemoan her law degree from Baylor - and nobody takes Coulter seriously. But there is some overlap between 'elitism' - if that means wealthy backgrounds, educated socialite parents, and Ivy League credentials - and qualifications for the Court. And I think this confuses some people.

Anyone with an 'elitist' background will be more likely to end up in a powerhouse law firm doing appellate work, get prestigious clerkships, or work in the Solicitor General's Office or OLC. These are the John Roberts-like resume builders most people want to see. The fact is, graduates from Stetson University just don't have these opportunities available to them, no matter how bright they are or how dense this year's crop of Yale Law graduates are. That's where the elitism comes in. But that doesn't mean a Stetson grad (just as an example of a poorly rated school) could never be qualified for the Court. If Harriet Miers, with her 'lowly' Baylor law degree had argued and briefed several cases in the Texas appellate system or the Fifth Circuit, worked as an adjunct professor, or written extensively on legal issues, I think many VC readers would be comforted. 'Elitism' opens more doors that build more impressive resumes. But I doubt that even the Ivy-league-credentialed professors who run this blog would care about the superficial absences in Miers' background (Harvard degree, Sup. Ct. clerkship) if it was bolstered by appellate experience and evidence of intellectual ambition.
10.7.2005 10:13am
the snob (mail) (www):
I'm amused by the ongoing "if you can't say something nice, don't say it" lobby. Pace Andrew Sullivan, it is possible to have voted for Bush yet not agree and support his every decision. Bush will be history in three years, but his Supremes will be with us for decades. I'm reminded of a great line from Wag the Dog where DeNiro's hard-boiled director character says to a naive intern, "It's not show friends, it's show business."
10.7.2005 10:14am
quickjustice (mail):
I didn't know Berger personally, but as a practicing bankruptcy lawyer, I acutely remember the embarassing constitutional disaster that he created known as the Northern Pipeline case. After Congress enacted the 1978 bankruptcy statute elevating bankruptcy judges to Article III status, the Burger court struck down the statute for Article III reasons, giving Congress a December 24 deadline to correct the problem. If Congress failed to act by the deadline, the Burger Court pronounced, then its "stay" of its declaration that the bankruptcy system was unconstitutional would expire.

Of course, the deadline expired without Congressional action, and the "stay" expired, casting the bankruptcy courts into Constitutional limbo. Rather than enforcing its stay (some lawyers petitioned the court for writ of prohibition, based upon the majority opinion, denied by the Court), the Administrative Conference of the U.S. Courts, led by Burger, created something called the "Emergency Rule", under which the bankruptcy courts could continue to operate under district court supervision. What constitutional authority the Administrative Conference had to create and operate a court system declared unconstitutional by the Supreme Court itself never was clear to me. The system operated under the "Emergency Rule" for more than two years, until Congress finally acted.

I was appalled by the egregious violation of basic principles of Constitutional law as I understood them (such as the concept that the lower federal courts do not exist independent of Act of Congress). Many friends of mine in Washington told me that the word around D.C. was that Berger personally was affronted by the idea that bankruptcy judges might ascend to the Olympian Heights of Article III status, and that he made it his personal mission to see that such an outrage never happened. The entire disastrous scenario smacked of arrogance and grandiosity on the part of Burger, hardly something any sane lawyer would want to emulate.
10.7.2005 10:33am
Lorenzo (mail):
This anecdote, if true, is either a blip or a harbinger of a disastrous nomination hearing. A couple more blips like this and she'll have to hit a home run in the hearings the get the votes.
10.7.2005 10:39am
Dave Hardy (mail) (www):
Perhaps the reporter misheard the question, and it was something like, "who is your favorite dead pompous ass?"
10.7.2005 10:41am
Per Son:
Supreme Court Junkie?

This is the type of question that is asked of every potential nominee for most Appellate courts.
10.7.2005 10:48am
Per Son:
Also, she damn well should be a Supreme Court Junkie, considering the position requires a tad bit of knowledge about Supreme Court decisions.
10.7.2005 10:49am
Agricola (mail):
Explained better, perhaps, in NRO's Bench Memos:

"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."

10.7.2005 10:50am
EstablishmentClaus (mail) (www):
I'm not sure if this was a joke, Cecilius, but in attacking 'elitists' you managed to get Miers' alma mater wrong - she got her JD from SMU, not Baylor.

And this is ridiculous. To throw around a charge of elitism on behalf of someone who has been a partner in one of the biggest law firms in Texas for three decades is really unfair to all the working class folks I grew up with; don't tell them she's like them, and those who think working for the Texas Lottery Commission doesn't qualify you for SCOTUS are somehow disparaging my neighbors. It's totally possible to come from working-class roots and, through effort and determination, make yourself great, particularly in an age of generous financial aid. Those folks - folks like Chief Justice Burger - deserve a great deal of credit. Folks who are born comfortable, work their way up to mediocrity, and then win the cronyism lottery twice in three years aren't in the same class.
10.7.2005 10:51am
AV (mail):
This is from Benchmemos on NRO ( about the context of Miers' gushing about "Warren":

"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."
10.7.2005 10:55am
Lochner Monster:
That Bench Memos excerpt is priceless. Of course there's no chance that the White House is in Defcon Five damage control mode.

Much more likely is that a Washington Post reporter made a story up virtually out of whole cloth, and that we'll be seeing a retraction and his dismissal by COB today.

This nomination has gone from "Trust Me" to "Wait and See" to "Who do you believe, me or your own lying eyes."
10.7.2005 10:59am
Rhadamanthus (mail):
Perhaps the reporter misheard the question, and it was something like, "who is your favorite dead pompous ass?"


So much for respecting the office of Chief Justice!!!!

As for the initial point, my concern would be that if she gets confused by one reporter, she really isn't going to have a fun time at the hands of the US Senate and there will be certain Senators who can;t wait to meet her.

It is inconceivable to me that she meant to say Burger. Even if she omitted the title she would have said Burger rather than Warren. This to me means that she meant Chief Justice Earl Warren. Hasn't POTUS passed a law against respecting this man?

I suppose it's not automatically a crime against the Republican party. After all I have more respect for Justice Scalia than I have any other living Justice (possibly excepting Justice Stevens) and I am very much a liberal on interpretation.

In short it means nothing except that POTUS may take a shellacking from Republicans if she is confirmed and it goes wrong.
10.7.2005 11:02am
uh clem (mail):
A fourth possibility is that she doesn't have a clear idea of the diference between Earl Warren and Warren Burger, like most laymen who only have a vague idea of "that Warren guy who used to be on the Supreme Count". (if they've heard of either of them at all)

Harsh? Yes, but not unprecedented. Recall Ronald Reagan claiming to have played former president Grover Cleveland in a movie when he had actually played the baseball player Grover Cleveland Alexander.
10.7.2005 11:11am
anonymous coward:
Thanks to those who posted the Bench Memos explanation. I have a pretty low opinion of the National Review and am not impressed by Miers either, but it doesn't take a Supreme Court junkie to know the difference between the Warrens, or even that Burger isn't highly regarded for his judicial craftmanship. (It's possible that she had a brainfreeze and stumbled over her words, prompting a helpful interruption. That does happen, even to people who are better qualified than Miers.)

Wasn't Miers involved in some manner in Roberts' confirmation prep work? If she somehow didn't have an incredibly basic grasp of the history of the court before, she probably does now.
10.7.2005 11:16am
Jim Lindgren should resurrect his previous arguement: since Sandra Day O'Connor is sitting on the court right now, there exists no vacancy, and the Miers nomination is a nullity.
10.7.2005 11:22am

My bad on the alma mater. Was talking to a guy about Baylor a few days ago and must've gotten them mixed up without morning coffee. Thanks.

But I don't think we're doing well with defining 'elitism' - which is supposed to be the unjustifiable motivation behind opposition to Miers. You focus on 'working-class roots' which can make an Ivy League degree and the accompanying goodies tougher to come by, but hardly impossible. I think the issue of elitism has to do with experience, not whether Miers grew up with working-class roots. I absolutely agree that anyone from any background can make themselves great. The problem is that with Miers, she did pretty well, but didn't make herself "great" enough to be on par with most Supreme Court nominees. People expect a nominee with experience in untangling the complicated Constitutional, statutory, and regulatory issues she'll have to deal with on the Supreme Court. There are a limited number of people that really have enough experience in this area to make a good Supreme Court Justice. In that this is a small number of people, then it is an 'elite' group of which Miers does not seem to belong. This is a meritocratic eliteness that represents the best in a given field (such as Pro Bowl football players) not a view of social class. Opponents of Miers are justifiably claiming that she should not be appointed to the Court because she makes nobody's Pro Bowl squad of lawyers. I'd be really surprised if opposition to Miers fixated on where she grew up or what school she attended.
10.7.2005 11:23am
MDJD2B (mail):
Excellent legal writing and scholarship is not an exclusive product of graduates of top tier law schools. There are many graduates of "red brick" schools who have done very well as justices and judges on various appellate courts-- and even SCOTUS.

High standards of legal reasoning and writing are legitimate qualifications for serving on the Supreme Court; graduation from a top-tier law school is not. "Elitism" is not a belief that candidates should meet high standards; it is the practice of using academic or other pedigree as a proxy for the actual standards of high competence, and is rightly to be condemned.

Solidstate wrote:

"I'm wondering how long it will take for one of the posters here to get tired of hearing the term 'elitist' thrown around and makes a pricipled defense of 'elitism' as a derogatory term for our society's best attempt at meritocracy."
10.7.2005 11:34am
Cold Warrior:
Jim Lindgren's recollection of Burger in the mid-80s is entertaining and troubling.

I guess we should be glad the Burger stepped down when he did. I'm not sure how Burger behaved in his heyday on the Court, but I wouldn't be surprised if this is a prime example of the eroding mental skills of an old man. Thurgood Marshall is another fine example, but his decline was obvious during his last few years on the Court.

Which makes me wonder: it would be taken as treason to Republican stalwarts, but why doesn't the President require a promise from all Justices he nominates that they will step down when they hit a certain age (70? 75?)? It wouldn't be enforceable if the Justice changed his/her mind, but it would at least set a precedent in the direction of very lengthy term limits ...
10.7.2005 11:36am
Johh Fee (mail):
This kind of slip so early in the process (whether it is ignorance on her part, lack of judgment, or simple inarticulateness) suggests that the hearings could be stormy.
10.7.2005 11:44am
John Yesford (mail):
The quote in the Washington Post does not point out that Lahey interupted her, and she finished with saying Warren Burger. And she admired him for his administrative skills.
10.7.2005 11:46am
Comments by "MDJD2B" show how the term 'elite' has really become a pejorative without much meaning. MDJD2B condemns elitism while I defend it and yet we both agree on the same things. If Miers went to Po-Dunk Law School but did a lot of appellate work and put together some really good articles on legal issues, we both agree that she could be a strong nominee; closer to that 'elite' SCOTUS-in-waiting group that includes everyone from Michael McConnell to Seth Waxman. "MDJD2B" defines elitism, however, as using academic pedigree as a proxy for real quality. This type of elitism is counter-productive and unjustifiable. As an attorney in a firm that's self-conscious about academic pedigree, I see some real low watt bulbs with Ivy League diplomas. They didn't deserve the job they landed while real bright students from State U. Law are rejected. I've also seen opposing counsel tear us a new one even though they went to some Midwest barfactory law school. Using academic pedigree and social class as a ticket to the top is indefensible - but I don't think that's what Miers opponents are complaining about.
10.7.2005 11:49am
Joshua Sharf (mail) (www):
Let's not take this thing at face value, either. Remember the Dick Durbin "conversation" with John Roberts? It may not be the Post reporter who's makingn stuff up. At this point, I'm not willing to accept anonymously sourced material.
10.7.2005 11:52am
1. I am not impressed if Burger is her favorite Justice because she admired his administrative skills.

2. At least Leahy didn't ask her to spell potato.

3. Maybe she really meant Warren Spahn. Greatest lefty of all time?

4. Harriet Miers, DOA, RIP
10.7.2005 11:54am
paulhager (mail) (www):
Which story is more plausible, the one in the WaPo - known to distort the truth if it harms the Bush administration - or the one on NRO? Let's wait and see how Miers does when being grilled by the Judiciary Committee. I'm guessing she'll do very well, only because I think Bush has demonstrated he's pretty good at surrounding himself with top-quality people.
10.7.2005 12:02pm
Heck who cares about her qualifications, while this is probably not the best place to state it I would like to see a non-lawyer in the Supreme Court. Sometimes there are too many technicalities and not enough Common Sense.
10.7.2005 12:03pm
Well I'm no lawyer, but I think the knee-jerk reaction of so many here to paint Ms. Miers as merely stupid follows a pattern well-known to conservatives--we're ALL just stupid, dontchya know. Personally, when I consider some of the outrageous stuff I've seen published lately as gospel, I have to allow for the possibility--alluded to in some of the posts above--that the quotation from those "with knowledge of the exchange" needs to be parsed quite a bit, and may not be correct. What does that "with knowledge of the exchange" actually mean? Might it mean people who weren't there but were told about it by Sen. Leahy? Might the good senator have any reason to paint Ms. Miers as stupid, just like her patron? Hmmm. Isn't it also true that tradition, or custom, or regulations, or some other such, requires that Ms. Miers not speak out in her own defense in matters like this? The reporting of the incident strikes me as not passing the laugh test, much less the smell test. I tend to think it's been tinkered with unless we have an audio recording to back the claim up, and even then I wouldn't be fully persuaded. The notion that Ms. Miers might not know the difference between Warren Burger and Earl Warren is risible.
10.7.2005 12:08pm
Bill Dyer (mail) (www):
It's disappointing to me, but not surprising, to read among comments even here, at this blog, people getting Ms. Miers' law school wrong (SMU, not Baylor); falsely claiming that she grew up as a child of privilege (she worked a scholarship job after her dad had a stroke when she was a freshman in college, and her family situation and finances pretty well tied her to Dallas, meaning SMU, for law school); falsely claiming that she has no appellate experience whatsoever (she's been involved in several appeals in both state and federal courts); falsely claiming that she has not taught as an adjunct law professor (the Dallas Morning News yesterday had rave quotes from someone who'd co-taught a course with her at SMU; she's also been a member of SMU's board of trustees); and so forth. These are not matters of opinion, but of objective, verifiable fact, and you've got yours wrong!

It's also disappointing to me, but not surprising, to read so many people saying things like (my paraphrase) "You have to have argued cases in the Supreme Court to be qualified to be on the Supreme Court." I don't know the statistics, but I'm reasonably confident that a large fraction, probably a majority, of our past Justices had never done an oral argument in person in the Court before joining its bench. Here's a news flash: John Roberts' practice was extremely atypical. That doesn't mean that the other 99.999% of practicing lawyers are idiots, incapable of engaging in capable constitutional analysis, or per se unqualified for the Court. Likewise, any genuinely knowledgeable Court observer can confirm for you that if you attend many oral arguments before the Supreme Court, you'll observe a fair number of lawyers who obviously could not find their rear ends with both hands and a road map. Unfortunately, that also seems to be true of some of the commenters here.

Some folks who think they know all about this woman, obviously don't. I know enough about her to be very confident that she would never go into court or represent a client with only the shoddy investigation and preparation displayed by many of the most vocal opponents to her nomination.
10.7.2005 12:11pm
Rhadamanthus (mail):

I read your point and nearly had a heart attack. Only because I have been reading (on an unrelated subject) a Lord Denning decision (British case obviously). As usual reading his opinions that mention the words 'common sense', 'fairness' and other obnoxious phrases make me break out in a cold sweat. He's as close to a laymans judge as you can get INMHO and I would rather have Burger on the court any day fo teh week- hell did I just support Burger? I need to wash my mouth- or hands?
10.7.2005 12:11pm
Wince and Nod (mail) (www):
I'd like to see an electrical engineer on the Supreme Court, myself. Followed by a law degree and expertise in patent law.

10.7.2005 12:17pm
Attila (Pillage Idiot) (mail) (www):
Sorry, but I don't see the "correction" of the story as really helping her. Even in the "correction" she was asked about "justices," plural, and even though the corrector wanted to help her out (do some spin?), we don't hear who any of the other favorite justices were.

Maybe she also liked Justice Ted Baxter.
10.7.2005 12:41pm
Bill Dyer:

Please, go hyperventilate into a paper bag. It will help your reading skills. So I botched her alma mater. So what? In fact, that was the entire point - nobody cares where she went to law school. One could be completely qualified for SCOTUS as a graduate of SMU instead of Harvard. Similarly, even if some actually did claim that she "grew up a child of privilege" - the entire point was that this is also irrelevant to her qualifications. What matters is what she'd done since then. If she's done appellate work and taught as an adjunct professor, then it's (1) been kept pretty hush-hush in the news; and (2) encouraging.

I agree with you in that I doubt that a majority of the sitting Justices had experience with oral arguments. 9 out of 9 of them were judges before their nomination, however, which gives people an idea of how they'll play on that level. Obviously Miers has never been a judge, so extensive appellate experience is the next best thing. You say she has it? I say, "I hope so." As for your remaining drivel points: (1) Yes, many SCOTUS lawyers look bad. Of course, the Constitution does not require they be appointed by the President and confirmed by the Senate to do that job. That's one of the many reasons why a gig on the Supreme Court is a tad bit different. (2) Yes, amazingly, people who comment on blogs do so without the intensive, months-long "investigation and preparation" that many good lawyers put into their appellate arguments. If I confess to this particular crime, will you please take your medicine and put down the rifle?
10.7.2005 12:46pm
Eliza (mail):
Very well done, Ed. That's probably the exact text of the president's thoughts as he pondered this pick. He came as close to a non-lawyer as he could, though. Good ole Miersie.
10.7.2005 12:51pm
I think this "Earl Warren Burger" story mainly serves as an amusing anecdote that can be turned into a he-said she-said debate (a la what is written in Bench Memos on NRO). I think one of the most compelling (and maybe most compelling) of the broad arguments against Harriet Miers is cronyism. As Charles Krauthammer succinctly writes:

"If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her."
10.7.2005 1:00pm
Thorley Winston (mail) (www):
I'm amused by the ongoing "if you can't say something nice, don't say it" lobby. Pace Andrew Sullivan, it is possible to have voted for Bush yet not agree and support his every decision.

Sullivan endorsed John Kerry and before that a Dean-Clark ticket.
10.7.2005 1:26pm
Thorley Winston (mail) (www):

Also, she damn well should be a Supreme Court Junkie, considering the position requires a tad bit of knowledge about Supreme Court decisions.

Perhaps but having "knowledge about Supreme Court decisions" doesn't require one to join any particular Justices' cult of personality nor even to really have a favorite.

Besides which, it seems rather obvious that the point of the question was to get Miers to name some justice who could be tied to a controversial opinion in order generate more controversy by providing fodder for the various partisan/ideological/interest groups. Look at for example how the WaPo tried to immeditately tie her answer to abortion.
10.7.2005 1:47pm
Jim Lindgren (mail):
Dear Readers:

Thanks for the link to Bench Memos version of the exchange.

And I agree with Bill Dyer's post about 4 or 5 posts above this one. Miers taught as an adjunct at a law school (she mentions it in one of her articles that I read). And arguing before the US Supreme Court (especially regularly) is very unusual outside of a specialized appellate practice and those who worked in the Solicitor General's office.

Also, Miers would bring some business experience to the bench.

But does she have the analytical and writing skills needed to do her job? I really recommend that VC readers go through some of Miers' articles online at Michigan.

Jim Lindgren
10.7.2005 2:02pm
Michelangelo (www):
Of course every Supreme Court Justice should got to Harvard or Yale. So should every president, senator, and house member. Apart from being the unimportant White House Counsel this candidate is a nobody.

As Ann Coulter

has written, "But if we're looking for lawyers with giant brains to memorize obscure legal cases and to compose clearly reasoned opinions about ERISA pre-emption, the doctrine of equivalents in patent law, limitation of liability in admiralty, and supplemental jurisdiction under Section 1367 — I think we want the nerd from an elite law school."
10.7.2005 2:13pm
Nony Mouse:
I didn't go to an Ivy League school. Nor MIT or Caltech. My degree is from a state school, but the job I landed (and the company has since promoted me) was a part of the work I did, first as an undergrad and then when I went full time.
Meirs went to SMU, not an Ivy League school. She got her current job because she had made her boss happy with her performance at her prior job. And I'm okay with that much.
I'm not okay with her nomination. SMU is not the problem here. Judge Owen went to Baylor. The fact that Owen was elected from private practice to the state supreme court is not her prime qualification; it was the ten years she sat on that court. Judge Brown didn't go to Harvard; she sat on her state supreme court bench for ten years. To quote Mr. Krouthammer:"It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence."
10.7.2005 2:14pm
jaybird (mail) (www):
It's obvious what happened here. Either Bush's nominee handlers hadn't coached her on how to answer that particular question (where's Fred Thompson when we need him?), or they had coached her, but she froze up when put on the spot.
10.7.2005 2:25pm
Attila (Pillage Idiot) (mail) (www):
I finally remembered what this reminded me of -- the confirmation hearings in 1989 for Bill Lucas to head the Civil Rights Division at DOJ. Lucas was asked about some of the big civil rights decisions from the Supreme Court, and he appeared not to have read them or even heard of them. Papa Bush did Lucas a big disservice by throwing him in over his head.
10.7.2005 2:30pm
jACKJOHN (mail):
Burger was best known to be a pedantic idiot who totally screwed up securities regulation. He was the epitome of the Justice who messed the law for business. Miers is supposed to be business savvy. Yet she admired Burger? Huh? Why didn't Bush just put C. Boyden Gray on SCOTUS? He's smart and business savvy, and has political expertise and has helped appoint conseravtive judges and he's confirmable; he's going to be EU ambassador!
10.7.2005 2:30pm
Thorley Winston (mail) (www):

But does she have the analytical and writing skills needed to do her job?

Weren't you the one crowing before about her "undistinguished writing" based on what turned out to be a typographical error from Lexis nexus?

Seems to me that after having now biffed it a second time, you might want to hold off on playing the "gotcha" game.
10.7.2005 2:36pm
Shelby (mail):

Even allowing for the typos, her writing (what we've seen so far) is pedestrian at best. No, she didn't make those gross grammatical errors, but she still seems to have a tin ear for language.
10.7.2005 2:48pm
Serenity Now (mail) (www):
Joshua Sharf: Let's not take this thing at face value, either. Remember the Dick Durbin "conversation" with John Roberts? It may not be the Post reporter who's makingn stuff up. At this point, I'm not willing to accept anonymously sourced material.

That's one reason I don't buy the anonymously sourced interpretation/defense at Bench Memos. Another reason is that it's implausible. We're supposed to believe she admires Warren Burger for his "administrative skills"? I also wonder why Anonymous Defender claims Miers "responded that she admired different Justices for different reasons," but neglects to name the other justices praised by the nominee. Anonymous Defender doesn't even say if he/she witnessed the exchange.

In the absence of a more credible explanation of Meirs' remarks, I'm inclined to believe the account in the Post.
10.7.2005 2:49pm
David M. Nieporent (www):
Weren't you the one crowing before about her "undistinguished writing" based on what turned out to be a typographical error from Lexis nexus?
Seems to me that after having now biffed it a second time, you might want to hold off on playing the "gotcha" game.

Actually, he was talking about her undistinguished writing based on her undistinguished writing. He also noted several points, acknowledging that they may have been typos.
10.7.2005 2:57pm
James Lindgren (mail):

I was the first one to suggest that some of Miers' infelicities in writing appeared to be LEXIS errors, a suspicion confirmed by Virginia Postrel.

I don't think that asking whether she has "the analytical and writing skills needed to do her job" and suggesting that people read her articles is "playing . . . gotcha."

I really mean it that people should go read a half dozen of these pieces and tell us whether they inspire confidence in Miers' intellectual ability to do high-level legal analysis and insightful writing of the kind that Supreme Court Justices are supposed to do.

As Shelby wrote above, "her writing (what we've seen so far) is pedestrian at best" and she "seems to have a tin ear for language."
10.7.2005 3:03pm
The second update reveals that you cannot reach many conclusions about the content of this awkward conversation based on the Washington Post's synopsis of it. Pending transcript or video, it seems like a "you had to be there" moment of minimal value. The only valid take is that Miers respects Warren Burger for something.
10.7.2005 3:24pm
anonymous coward:
Is the problem that Miers' writing displays a "tin ear" or that it evinces no special analytical ability? I had assumed the latter.

As entertaining as I'd find Associate Justice Humbert Humbert, I'm not sure tin-eared prose necessarily makes a bad opinion. (Though vague language certainly does.) And, hey, the clerks will write everything anyway.
10.7.2005 3:35pm
Perhaps this is counter-intuitive, but I'll ask the question anyway:

Why is it important for a SCOTUS nominee to be an intellectual giant? Does one have to have immense intellectual ability to investigate and write these opinions?

Because I have to tell ya, reading some of Kennedy's and O'Conner's opinions, not a lot of evidence of intellectual prowess there.
10.7.2005 3:39pm
Whoops, O'Connor, rather
10.7.2005 3:40pm
James Kabala (mail):
Burger was disliked by both sides. He is the villain, so to speak, of Woodward and Armstrong's left-leaning book The Brethren. Rehnquist, despite being more conservative, received a generally favorable portrayal in the book. From the right, Rehnquist himself loved to mock Burger behind his back. One Rehnquist obituary I read described Rehnquist and his clerks (including, coincidentally, John Roberts) falling over themselves in laughter as Burger pompously ordered around caterers preparing a offical dinner that the Court was hosting.
Ken Starr clerked for Burger and seemed to like him, however.
10.7.2005 3:42pm
James Kabala (mail):
Burger did, however, serve on the D.C. Appeals Court for thirteen years before becoming Chief Justice, so even if he didn't go to an elite law school and is a jerk, he was "qualified" in a way that Miers is not.
10.7.2005 4:06pm
Jon Rowe (mail) (www):
Check out my "Justice Smails" post. Can't you imagine Burger reading this poem he wrote while christening his Yatch?
10.7.2005 4:13pm
SimonD (www):
Why is it important for a SCOTUS nominee to be an intellectual giant? Does one have to have immense intellectual ability to investigate and write these opinions?

Because I have to tell ya, reading some of Kennedy's and O'Conner's opinions, not a lot of evidence of intellectual prowess there.
A nominee today has to have immense intellectual ability precisely such that the harm wrought by those two Justices can be undone!
10.7.2005 4:13pm
Jerry M (mail):
I am not a lawyer, an SC junkie or from Texas. But from where I sit as a libertarion-conservative, we have had a large number of 5-4 decisions going the wrong way(imho). While constitutional law may be complex, the constitution itself is not. Not sure how many of the Founding Fathers were 'elitists', but doubt many. We will have many important cases brought before the SC in the next few years. I can only assume W knows pretty well how Miers will vote on many of these cases. If these can be 5-4 in the direction I think is appropriate, than I feel this can be a worthwhile choice to get some common sense back ot the court.
10.7.2005 4:13pm
Frank Drackmann (mail):
Rehnquist always struck me as a genuinely nice guy when I saw him give lectures on CSPAN, but adding the stripes to his Chief Justice robes seemed comical.
10.7.2005 5:39pm
I honestly don't think George Bush is losing sleep over Kelo or Raich or really any recent court decision. We have someone about as unknown as O'Connor and likely to be as bad a judge, so at best Bush has just kept the Court as it is.
10.7.2005 5:41pm
John Herbison (mail):
Why is it important for a SCOTUS nominee to be an intellectual giant? Does one have to have immense intellectual ability to investigate and write these opinions?

Senator Roman Hruska (R-Neb.), call your office.
10.7.2005 5:47pm
Per Son:
Not sure how many of the Founding Fathers were 'elitists', but doubt many.

Ok. I am not knocking the Founders, but doesn't the whole Electoral College system sting of elitism? That is, the people cannot be trusted to make decisions. Additionally, the Fathers were typically highly elitist.
10.7.2005 6:24pm
Roach (mail) (www):
One feature of the debate about Miers that appears on the more populist blogs is the notion that judging is simple work and does not require a Roberts-level intellect. To these folks and all of you, then, I would ask why do judges write opnions at all if the work they do is so
obvious and the issues so straightforward? And what does it say about judicial claims of authority that they have long been staked on written opinions that have narrative integrity, both in a single case, and with
respect to the law as a whole?

I have a few thoughts on this. Namely, that withoutpower of their own, the judiciary depends upon its claims of integrity and intellectual ability to justify its own assertions against those with phsycial power, namely the executive and legislative branches. And that these exercises in opinion writing show respect for the litigants and the process that is always somewhat in jeapordy due to the near absence of popular control over the judiciary. Writing opinions shows
that what took place ultimately stemmed from the intersection of human reason, written down laws with discernable meaning, and the facts of a particular case. That opinions are written thoughtfully and clearly is
of fundamental importance to the integrity of the process and the reputation of the courts. There is a basic judstice concept which requires treating like cases alike, which is one reason why opinions spend a great deal of time addressing similar cases and distinguishing them. The obvious results-oriented opinions of the
1960s did a great deal to discredit the courts, when ordinary people could discern that what had taken place was sophistry.

So to those who think judging is straightforward and doesn't require a great deal of intellect, I would ask then why write opinions at all and not just "trust" the judge's reasoning when it comes out in the form of
a single, stripped down order reversing or affirming. I don't think anyone here agrees with this populist criticism, but I was hoping that someone could point me in the direction of sources discussing the theory and history of written legal opinions.
10.7.2005 6:24pm
duras (mail):
Cecilius - Amen.

Luttig's place of Burger is not surprising given his clerkship. Indeed, it might be somewhat discourteous of him to fail to praise his former boss. Luttig, unlike Miers, stands very much on his own merit and we don't need to obsess over tea leaves to try to discernt his judicial philosphy of appraise his intellect.
10.7.2005 6:29pm
Anti-elitism tends to be a knee-jerk reaction from people on my side of the spectrum, I'm afraid. I've known some dopes with Ivy degrees. But certainly the /average/ intellectual quality of elite law school grads is fairly high, especially when one controls for "special admits" from powerful, wealthy, well-connected families. I know a guy who dropped out of my graduate program because he couldn't do the work. And he's now a Yale Law grad. But he's an exception.

My frustration is that SMU law is raised as (yet another) in the strikes against Miers. It's not an elite law school. But I wonder how far "down" the US NEWS ranks one can go without being dismissed the way I've seen SMU ridiculed ("third-tier," "Number 52"). Is U. of Illinois acceptable? Wisconsin? Notre Dame? Or must it be a elite coastal school, Chicago, or Michigan?

Miers is not a strong choice. Her "Smoo" pedigree has nothing to do with it.
10.7.2005 6:59pm
duras (mail):
O'Connor was 3rd in her class at Stanford Law. There is no question as to her intellect. The problem is that she has continualy promulgated "finely balanced" policy preferences disguised as judicial opinions.
10.7.2005 7:02pm
Bill Dyer (mail) (www):
I've taken a look at Harriet Miers' "hush-hush" appellate work -- had to get my security clearance upgraded, but eventually was able to log onto Westlaw -- and my further comments are here.
10.7.2005 7:04pm
erp (mail):
I think it proves Miers has a sense of humor, not on Eugene's list, but obviously an asset for a Supreme Court justice as for the rest of us.
10.7.2005 7:51pm
As a Texas lawyer, I can't help but chuckle every time Miers' former firm is descried as one of the elite firms in Texas. When is that little exaggeration going to go away? Perhaps she's qualified, perhaps she's not. But do we really need to lie about her resume?
10.7.2005 10:06pm
Jim Lindgren (mail):

Actually, one of Miers' friends said that he/she had never seen Miers laugh or tell a joke, so a sense of humor is not among Miers' many fine qualities.

Bill Dyer,

I blogged your nice post on Miers' appellate work.

Jim Lindgren
10.7.2005 11:13pm
jaybird (mail) (www):
It's a bit of a hoot watching lawyers play the elitist snob game, with those that went to top law schools looking down their snooty noses at those of us who went to lesser schools. The dirty little secret is that, for the most part, people go to law school in the first place because they never had the intellectual firepower to study the difficult subjects, such as physics or engineering, or to go to med school. Law school is an acceptable soft alternative.
10.8.2005 12:02am
erp (mail):
So maybe the friend didn't get the joke.
10.8.2005 12:10am
Volokh Groupie:
It seems Alex Kozinski might be a good person to talk to in order to temper the Burger-bashing (though it may be warranted). His tribute to his former boss seems to put Burger in a positive light:
10.8.2005 12:15am
Shawn Fresci (mail):
Better yet, it could be that Harriet Miers was just hungry, but was too embarrassed to say anything. She said "Warren" to induce Leahy's interruption. Then she said "Burger" to communicate her needling desire to chomp her pearly whites into a juicy Big Mac. Yes, indeed, the poor ol gal just wanted a hamburger. Man, is she smart or what?!
10.8.2005 6:13am