The Volokh Conspiracy

"Harriet Miers would come to the Supreme Court with a background in private practice and high-government service, and this puts her in strong company. Indeed, since 1933, 10 of the 34 justices came to the Supreme Court directly from positions in the executive branch, such as the one Ms. Miers now holds. And no Supreme Court nominee in the last 35 years has exceeded Harriet Miers' overall range of experience in courtroom litigation, service in federal, state and local government, leadership in local, state and national bar associations, and pro bono and charitable activities."

Two obvious points. First, once again, no matter how he tries to plump it up, her brief time as White House Counsel is far more probative of the cronyism charge than of her qualifications for the Court. It isn't the same, for example, as being Attorney General, or head of the EEOC for that matter.

Second, I love to see he is going with the snowflake argument (that even if none of her qualifications on its own is particularly distinguished, Miers has a unique combination of attributes). Of course, we are all unique snowflakes in our own way--I guess what makes this snowflake special is that it happened to land on the President's desk.

Nobody Special,

And it might have worked if it hadn't been for Roberts himself setting the bar. Sure, Court-geeks would have known she would be the least qualified Justice since the 19th Century, but a prominent example of a far more qualified nominee would not be so fresh in people's minds.

I'm a little disturbed that Ken Mehlman is practically advertising her position as a presidential crony as a reason to support her. Are conservatives so deranged by past judicial supremacism that they consider a gutted Court and an activist executive branch an improvement?

Also, I'd be impressed if anyone can defend the expansion of executive powers Mehlman seems so excited about under the doctrine of "strict constructionism." Tell me why Scalia is wrong here. Please. 'cause right now, as far as I can tell "strict constructionism" means "rules correctly on the issues we care about," and the administration's threat to veto the torture bill suggests they don't even know what the Constitution says.

I still want McConnell - although I'm also holding out for the dark-horse Kozinski nomination.

It is not only "constitutional law" -- in the sense of Brown v. Board of Education -- that a potential nominee should be familiar with, but also "constitutional law" in the sense of federal courts, federal litigation, and administrative law (which deals extensively with separation of powers concerns and the relationship between Congress and federal agencies).

The potential benefit of a Miers-type is that she may have litigated regulatory matters. In other words, she may have familiarity with administrative law, formulating federal questions, or a good working understanding of how federal courts work.

Problem: she was not a federal litigator. She did not do trials in federal district courts or try cases before federal regulatory agencies. So all of her experience in practice is not relevant to the Supreme Court. (She clerked, but simply being a clerk is not a per se qualifier for SCOTUS.)

To those who say, well, she was a great litigator in the state of Texas; well, then appoint her to a federal district court in Texas. Or put her on the Supreme Court of Texas. Or elect her to be the head of the Texas Bar. Or, frankly, if you get into the White House, have her serve as your counsel. But that doesn't mean she's qualified for the Supreme Court. Not by a long-shot.

Someone on here attacked the notion that Senators aren't per se qualified for SCOTUS. But Senators, even if their resumes are unimpressive before being elected to the Senate, once elected are actively engaged in the drafting of legislation, which requires constitutional interpretation. They gain an institutional understanding of Congress (a federal body) that is valuable on SCOTUS in deciding questions of federal law. Miers does not have a Senator's experience with federal law, so she isn't qualified in the way is the most idiotic Senator.

She's a state lawyer. Note that were she a state judge or a state legislator, then she would have experience dealing with federal law -- either writing laws that implement federal policies in your state or interpreting federal law when federal questions are raised in state court.

"Any ol' state attorney" is a horrible standard. If that is the standard, then the LSATs should be much harder and should include substantive questions of law.