The Volokh Conspiracy

How did this moron ever become a senator? Oh, never mind--probably the same way that Bush became president.

These people don't seem to get the point that unlike the legislature and the executive, where any idiot can take charge if he's charismatic enough, the courts are a legal intellectual meritocricy. Even state elected judges need to show some ability in the field.

But the reality is that right-leaning intellectuals brought this disaster on themselves--they let the devil in the door, hoping to control him. They didn't seem to have learned the lessons of history.

What a shock - elitism! Who would have thought about demanding elite credentials for our nation’s highest court!

If you seriously advance the “elitism is bad” argument, look me in the eye - metaphorically speaking, obviously - and tell me you would would choose to trust a nurse who you’ve known for ten years to perform open heart surgery on you, when you could have your pick of literally dozens of supremely qualified heart surgeons who are lining up to do the job. Tell me that in all honesty and I’ll believe you have some credibility. Not much brains (guess I should have sead brain surgery, huh, but that’s an overused cliche), but at least consistency, and thus credibility.

The White House needs to put Bill Dyer on the payroll. That or just nominate him to the Supreme Court instead of Miers ;)

Simon, don't try to defend the rank elitism which is found in much of the criticism. It weakens the case against Miers. So Miers went to SMU and ran the Texas lottery? Many of those on the "short list" attended non-elite schools, but they still demonstrated their legal reasoning and constitutional knowledge in public writings and judicial opinions. With Miers we have very little information, and she may be a very sharp lady who is in fact a superb lawyer, but that doesn't mean she posseses the requisite constitutional knowledge or writing skills necessary to be a fine justice. Nor does it mean we can be confident she will be a consistent vote for originalism/textualism.

Give Coats credit for efficiency, if nothing else. He managed to contradict almost every principle of jurisprudence we have been hearing about from conservatives for 20 years in a single sentence.

I think that the (small) train of truth that is behind Coats's (and other similar) statements is that it is reasonable, and perhaps desirable, to have a mix of justices on the court in some ways, and that the ability to empathize with a variety of defendents is both desirable and important. It doesn't seem hard to believe that some justices will find, say, sexual harassment to be no big deal becuase they have never experienced it (or perhaps were regularly engaged in it.) And, if you think some supposed harm is no big deal, you're quite unlikely to see a constitutional violation, even if the harm is in fact quite a big deal to the people suffering it, to the point where they are effectively kept from participating in public life as full equals. (Think of Blackman [I think] and his failure of empathy in Bowers, and his remarks that he had [he thought, wrongly] never met a homosexual.) Now, some may think this isn't what we want- that the cold hard law just sets out who is wronged enough to seek relief and who isn't, but I think this is a pretty unpersuasive way to look at things, both in theory and practice. I'm not arguing that Meir brings an important empathetic view to the court that it's missing, or that she should be confirmed for this reason, but I do think that this is the reasonable core idea behind the "she'll represent normal folks" idea.

Since the White House obviously thought Dan Coats would be capable of handling a good bit of their public spin on this nomination, one would imagine that he is aware of Hruska's infamous defense as the primary example of how NOT to endorse a Supreme Court nominee. Assuming this quote is reasonably accurate, therefore, Dan Coats must be a true idiot.

So the person the Bush Administartion selected to reassure the public that Bush knows how to pick good people is himself incompetant at the job he has been asked to do. Perfect.

If there is anyone in this forum who is prepared to defend the jurisprudence of the last decade on the basis of the intellectual firepower of the bench--or indeed on the basis of any other criterion--I'd like to hear them do so.

Yeah, the law is complicated. So is computer programming: so is running a multi-billion-dollar business. But a lack of qualifications didn't stop either Bill Gates or Sam Walton from dominating their professions.

I hasten to add that Harriet Miers appears to be neither a Gates nor a Walton: but the point is, brilliance is no guarantee of effectiveness, and a lack of credentials is no guarantee of failure.

BTW--dittos, "not Hruska"! :-)

Intellectual Powerhouses love complex tests involving multiple subjective factors. These tests often provide little guidance to attorney who practice in trial Court and attempt to advise clients as to the relevant law. Someone like Miers may bring a set of skills and perspectives that are desperately needed on the Court.


I don't buy that.

(1) Scalia is at least tied for "smartest Justice," and he's a clear advocate for hard-and-fast rules, not blurry standards.

(2) The major recent examples I see of Justices
favoring too-subjective multi-factor tests are Justices O'Connor and Powell (the O'Connor of his day). Powell had more practice experience than (I am fairly sure) any other Justice in recent decades; and O'Connor was certainly more real-world focused, and less a creature of the ivory judicial tower (in her pre-Court career), than most other Justices.

So I don't see any correlation between being an "intellectual powerhouse" and advocating too-subjective complex tests.