The Volokh Conspiracy

Is this the new party line? "Your criticisms are inane; they do not amount to substance." Give me a break. Perhaps the so-called lack of substance stems from the fact that we have been given nothing of substance in Miers' defense. The critics can only work with what the White House gives them. Too bad the White House has only given them "you're sexist" and "she's a good bowler."

I actually think the frequent Miers commentary is a nice break from pondering questions like why straight married couples adopting doesn't undercut the relationship between marriage and procreation, but gay married couples adopting destroys that relationship.

Isn't legal dorkery what we all come here for anyway. No need to apologize Prof. Kerr!

The nomination of a Supreme Court justice is indeed an important topic (even if my apathetic undergraduate students think otherwise), especially because it's such an infrequent event, and I appreciate Prof. Kerr's posts for reducing my search costs on the topic and for his commentary.

Keep up the good work, Orin. This SCOTUS nomination is a proselyzing event for those who believe in the Founders' radical ideas, and have fought over so many decades to defend their republican experiment in limiting government via a Constitution of enumerated powers.

The continuing discussion displays the best of elite thought in the conservative and libertarian coalition. The intramural battle highlights the principles that are so motivating to those who approach government and politics from an intellectual angle, and, more importantly, highlights how important principles and intellect are to the "conservative" movement.

This fight over Miers is a splendid showcase for opening many eyes and ears that hear only that conservatives are clones that parrot some central leader's marching orders. We think many intelligent people who have too long lived in leftist echo chambers have been surprised by conservative/libertarian reaction to this fiasco, and any who still have open minds may become engaged and have gained respect for the ideas discussed here and elsewhere in the blogosphere.

We have been avid libertarians for decades but have never been much interested until now in the lawyer's perspective, typically engaged instead in the economics discussions. Volokh.com has become a much more frequently visited site, however. Thanks much.

Although I like "Daddy's" Charlie Brown parody, I think one of the hosts of a morning cable news program probably summed it up nicely the other morning.

There are revolving hosts. There were 3 that morning. The middle individual said she was just tired of all this coverage of Miers. One of the other hosts turned to her and said, as close as I can recall...

It may be boring to us as journalists. But, to people in or interested in the legal profession, this is their Super Bowl.

So, which Super Bowl would YOU equate the Miers nomination to?

Orin, I believe your Miers posts are more influential than you realize. I think they're not only interesting, but important as well.

Re the Miers and SSM chains lately:

Obviously, the purpose of the USSC is procreation. Thus, Miers and Souter are not qualified.

Next question?

No, keep up the miers posts! we need something to keep us reading past all the marriage posts.

Y'know, it may not be unified, but at least its not a scatter-brained attempt to enforce your prejudices through law. I'm not referring to any exceptionally wordy threads this week in particular.

Some posts have been more to point and more focused than others, but this has been a thoughtful and fruitful discussion at VC - and much appreciated. This is a nominee for a life-tenured SCOTUS justice position, not deputy sheriff of Mayberry who will be up for election in another year or two. No one needs to apologize for the fact that some posts and comments are more fruitful and probative than others.

The phrase "physician, heal thyself" comes to mind as well.

Please, continue to post. As always, of course, make them as factually informative and incisive as possible.

I do somewhat disagree about the lack of potential material. The details to flesh out her relevant experiences are out there somewhere (if just in a notebook of the Dallas City Council recorder's office); it's just a matter of finding it and putting it all together.

The lack of quantity should only lead to greater precision. I think the commenter Orin quotes is mainly responding to the fact that precision hasn't successfully been achieved -- yet.

On this score, however, I fault Miers. For just one example, she was asked to describe in detail constitutional questions she has addressed. Instead of detail, we got vague references such as "when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause." "The council" is not synonymous with Harriet Miers. That sentence not only uses extremely confusing language with respect to what the equal protection clause does or does not do, it also is non-responsive to the question that was asked: what issues did SHE deal with, what position did SHE take, etc. The only excuses that come to mind are willful obfuscation and insufficient intellectual competence. Neither of these excuses gives me any solace whatsoever.

This process is broken. Informed, intelligent analysis is the only tool left to either keep pressure on the politicians or discover salient facts that will allow us to reverse our perceptions.

Just to follow up with Victor's post, she got the constitutional issue wrong which, in my opinion, is pretty important. This is the first time she's ever written something on constitutional issues, in a response to the US Senate, and she got it wrong. I don't understand why this hasn't been front-page news.

Here is a complaint of substance. The defenders of Miers’ nomination say that Miers is qualified. Essentially, they claim that she is a complex litigator with excellent case management skills, but not a constitutional scholar of the first order. The former is more relevant to adjudication, they say. Fine. Let us take the premise seriously. In that case, then, it seems the Senate should ask her questions related to complex litigation and case management, not obscure constitutional questions.

1. What does she think of Lon L. Fuller’s “The Forsm and Limits of Adjudication”? Has she read it?
2. Does she have an understanding of comparative procedural systems in practice? For instance, what does she think of Mary Ann Glendon’s analysis of foreign legal systems in “Comparative Legal Traditions”?
3. What does she think of using preclusion rules as an alternative way to overcome joinder complexity? In particular, what does she think of Justice Rehnquist’s dissent in Parklane Hoisery Co. v. Shore?
4. How does the Due Process Clause figure in precluding persons that did not participate in a prior case? In particular, what is her opinion of Richards v. Jefferson County, Alabama, a SCOTUS case?
5. What does she think of preclusion after notice and opportunity to intervene, particularly in the context of reverse discrimination suits where consent decrees have already been entered? For example, Martin v. Wilks, another SCOTUS case? What is her opinion about Congress’ response to this case, with 42 U.S.C. sec. 2000e-2(n)?
6. What is her opinion of the Eleventh Amendment jurisprudence we have thus far? Does the text govern? How do we reconcile the text of the Eleventh Amendment and the subsequent jurisprudence? What is her opinion of the diverging approaches of doing so?
7. Is she concerned about the limitations on aggregation imposed by territorial jurisdiction? How, in her opinion, does this play into asbestos litigation? Does she have an opinion of In re Asbestos Litigation?
8. Does Strawbridge v. Curtiss announce a constitutional rule, or is the diversity required for diversity jurisdiction by the constitution broader or narrower than what is promulgated by that case?
9. When is it appropriate for judges to use the All Writs Act? Was the Terri Schiavo case an example?
10. Is compulsory consolidation in bakruptcy cases fair to litigants? Why or why not? Do litigants have a constitutional right to be masters of their own complaints?
11. What are relevant policy concerns of class actions? Discuss Hansberry v. Lee and In the Matter of Rhone-Poulenc Rorer Inc. In particular, is Judge Posner wrong? Why or why not?
12. Are there constitutional or jurisdictional limits on mandatory class actions? If they exist, how do they play into the case of In re Federal Skywalk Class? Was the outcome of that case justified? Why or why not? What conceptual framework would you use to decide that case today?
13. What is federal common law? How is it different from general common law in federal courts? Discuss In re Agent Orange.
14. You are on record as opposing judicial activism. Which judge is more activist in your view: Jack B. Weinstein or Edward Becker?
15. What is the proper use of a court’s remedial powers? Discuss Missouri v. Jenkins. In addition, what is the rightful position, and what are some common critiques of this analytical tool?
16. How much power should magistrate judges have in complex antitrust cases? How could overpowering magistrate judges possibly conflict with the guarantees of the 7th Amendment?
17. You have experience with antitrust law. Do you agree with the result in Topco? What could possibly be wrong with it?