The Volokh Conspiracy - 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."

	[Jim Lindgren, October 7, 2005 at 2:29am] Trackbacks 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."