Saturday, October 8, 2005

Feddie Speaks!: Blogger Stephen Dillard, aka Feddie, is featured in an NPR piece on the conservative blogosphere and the Miers nomination available here. Feddie shows up at the 5:30 mark.
30 Years Ago Today,

my parents, my brother, and I arrived in the U.S. As you might gather, October 8 (and June 13, the day in 1975 that we left Russia) is a big day in the Volokh family year.

Law Professors For the Supreme Court?: Beldar suggests that some critics of the Miers nomination want the President to nominate a law professor for the Supreme Court. I haven't heard anyone clamoring for this, but it brings up an interesting question: Is experience as a law professor good training for service as a Supreme Court Justice?

  Here's my tentative thought, if you'll let me paint with a broad brush. As with any credential, the ultimate issue is the person, not their jobs. It's easy to read too much into any one experience: We naturally tend to assume that someone who has had a particular experience is "that type" of person. With that said, my instinct is that extensive experience as a law professor probably isn't very good training for service as a Supreme Court Justice.

  Here's my thinking. As most practicing lawyers know, academia can be a little bit, well, quirky. Law professors generally are rewarded for being clever, or for catching a wave of fashionable ideas and writing a lot about them. Within the academy, it's frequently better to be gloriously wrong than modestly right.

  In my opinion, the qualities of a good Justice are very different. I side with Learned Hand on this one: "The spirit of liberty is the spirit which is not too sure that it is right." Being fashionable, exceedingly clever, or gloriously wrong aren't assets for judges. The case of Yale Law professor William O. Douglas illustrates the problem. Douglas was brilliant, and a very successful academic as an important figure in the legal realist movement of the 1930s. But those qualities didn't translate well into being a good Justice. His opinions are bold, but also sloppy and frustrating; If you're trying to make sense of an area of law, you hope that the key decision in the field isn't a Douglas opinion.

  That's my tentative reaction, anyway. As always, actual mileage may vary: As I said, what matters is the person rather than the credential. Some academics are influenced by this environment more than others, and some have made terrific judges and Justices. But as a rule, I'm not sure that lots of time in academia is the best credential for a Supreme Court Justice. (Oh, and for any law professors reading this, please understand that I think you would make a simply wonderful Justice. It's the other professors that make me worry.)
The Selling of Harriett Miers, Part II: From the New York Times:
  Sean Rushton, executive director of the Committee for Justice, said generating enthusiasm for Ms. Miers was proving difficult because "anytime we put out something positive about her it gets shot to pieces by all our allies and the blogs."
  The same article has an interesting discussion of Harriett Miers meeting with Senate Judiciary Committee Chairman Arlen Specter:
  Several Republicans, including Mr. Specter, said they steered clear of asking Ms. Miers questions about constitutional law. Mr. Specter, who said the timing of the confirmation hearings would depend in part on when Ms. Miers feels ready, said he initiated a discussion of the shifting standards the Supreme Court has applied in interpreting the Commerce Clause of the Constitution, but only to illustrate to Ms. Miers the kinds of questions she would face during her hearings.
  "I did not ask her about it because I don't think she's ready to face it at the moment," he said. "Look, the lady was White House counsel dealing with totally other subjects until Sunday night when the president offered her the job. And Monday she's sitting with me. I'm not going to ask her questions which she hasn't had a chance to study or reflect on."
Rick Garnett on the Federalist Society: In a piece on Bench Memos that deserves wide circulation, Professor Rick Garnett movingly criticizes the marginalization of the Federalist Society by the White House. Here is an excerpt:
. . . Too often, this Administration, prominent nominees, and even Federalist Society members nominated for important positions in government have treated the Society as if it were something out of "The DaVinci Code", or the ultra-secret gaggle of powerful reactionary Rasputins that some on the left imagine, or just a goofy band of train-spotters. In my view, this Administration and the conservative Senators, who owe the clear thinking and dedication to the rule of law of their best staffers, lawyers, and advisors in no small part to the Federalist Society, have an obligation to stop this silly "Federalist Society? Never heart of it!" pose, and forthrightly to endorse, defend, and praise the Society.

The Federalist Society has been — as many honest, left-leaning law professors would concede — an immense benefit to the intellectual culture and the jurisprudential debate in our law schools. It has supplied countless thoughtful, intelligent, conservative lawyers to the bench, the academy, the bar, and public service. It has provided an invaluable forum for a genuine exchange of ideas, and also some accountability for the American Bar Association and the American Association of Law Schools. Its events, debates and panels are always diverse and provocative. . . .

Just as important, the Federalist Society has provided, in no small part, the intellectual heft for a large part of today's conservative movement in politics. For an Administration that owes its existence to this movement to, time and again, treat the Society like a goofy yearbook photo or an embarasing secret is more than irritating — it is shameful. If the Federalist Society really were a politically useful but in fact weird and non-mainstream outfit, then perhaps the "Fed Soc? Who?" attitude would be understandable. But, if course, the Society and its ideas are — among informed and thinking people, anyway — entirely respectable and, while certainly conservative, entirely "mainstream."

If Ms. Miers really does harbor the tiresome, skittish, establishmentarian, protect-the-guild wariness toward the society described in the accounts mentioned above — rather than respect for its work, admiration for the vision of David McIntosh, Steve Calabresi, Spence Abraham, and others who founded the Society more than 20 years ago, and gratitude for the dedication of hundreds of law students today who often take real hits in order to stand up for and strengthen the Society and its intellectual mission — then I am inclined to think that she has not earned (no matter what church she attends, no matter how good a person and impressive a lawyer she is, no matter how much she abhors abortion, no matter how loyal she is to this President, and no matter how Rehnquist-like her record turns out to be) conservatives' support.

Many of my students have worked very hard and sacrificed time for the Federalist Society. In so doing, they have improved their law school and the education of their classmates. (It's worth noting that left-leaning students benefit, too, from an exchange of views and from the competition and challenge that the Society provides). Having worked for, voted for, taken hits for, and defended this Administration and the legal and moral principles for which it purports to stand, these students deserve better than a nominee who appears to regard — again, if the accounts are accurate — them and their ideas as a source of irritation rather than a source of inspiration. (Of course, I hope the accounts of Ms. Miers's views about the Society are wrong). . . .
A Race to the Bottom: A commentator on another thread posted the following:
Clinton did not set out to nominate Ginsburg for the court. He set out to nominate Bruce Babbit, who, by all means, would have had the qualifications equivalent to Roberts. Instead, Orin Hatch told Clinton that Babbit would not be confirmed by the Senate, and gave a list of names which included Justices Breyer and Ginsburg.
This raises the following issue that I know serious Democrats are now really pondering:

Do Democrats want to support (or only tepidly oppose) a weaker conservative appointee who will be less dangerous than a highly qualified nominee with the judicial abilities to execute a serious judicial philosophy? Do they put their concern for judicial philosophy ahead of their concern for competence? Indeed would they not affirmatively prefer a less competent conservative on the bench to a more competent one? If you were an influential Democrat, how would you counsel a Democratic senator on this decision?

Put another way, did Orin Hatch make a mistake when he warned President Clinton off Bruce Babbit? Would Republicans be better off today with Babbit and not Justice Ginsburg on the Court? Should this be the criterion that ultimately determines the vote of a senator?

If the answer to these questions seems obvious--that of course Democrats should prefer the weaker Republican nominee, then does this not turn the confirmation process on its head. Opponents of a president screening the best and the brightest from the Court (as has been the obvious strategy for appellate court nominees) by means of the confirmation process. And, if implemented by both parties, would this not create "a race for the bottom" when it comes to the judiciary?

I have been very impressed by the insightfulness of the comments on the various threads concerning the nomination process, on both sides. I am very interested in the views of our readers on this matter.

Update: I appreciate the comments attempting to get the facts straight with regard to Bruce Babbit. But that is a side issue to the questions I was trying to raise and get feedback on.

The Miers Standard: Apart from ethical and other issues extraneous to qualifications, there are at least two dimensions of "qualifications" to be on the Supreme Court: (1) Evidence of legal ability of the sort needed by a Supreme Court justice, and (2) a "judicial philosophy" by which one approaches the task of judging at this time in the Court's history.

Given the defenses of the qualifications of Harriet Miers to which I linked below, who could a Democrat president nominate to the Supreme Court who would meet what may one day be called by Democrats the "Miers Standard" (like the "Ginsberg Standard" of confirmation hearing testimony now deployed by Republicans)? Here is another way to put the question: if Harriet Miers is accepted by Republicans as qualified to be on the Supreme Court, who are they estopped from opposing in the future on the basis their of "qualifications."

I do not mean to suggest that a Democrat president will actually appoint such persons as are on whatever list is generated here. To the contrary, our most recent experience with Democrat appointments to the Supreme Court were Justices Ginsburg and Breyer, who satisfy anyone's criteria of qualifications related to ability (as opposed to judicial philosophy about which supporters and opponents can reasonably differ).

I mean this as an entirely serious exercise, rather than an invitation for frivolity--tempting and amusing as that may be.
Miers and the Top 100 Lawyers: In President Bush's radio address this morning defending the nomination of Harriett Miers, he repeated the following claim:
  Beginning in the 1990s, Harriet Miers was regularly rated one of the top 100 lawyers in America, and one of the top 50 women lawyers in the country.
  A few days ago, Tim Grieve at (free access) took a closer look at the evidence supporting this statement. I'm not sure if Grieve gives us the whole picture — if not, I hope to hear about it in the comments — but here is his take:
  [T]here's a circular sort of logic in Bush's claim about Miers' rankings. When Bush referred to the "top 50" and "top 100" rankings, he seemed to have in mind the National Law Journal's occasional listings of the nation's "most influential" lawyers. Miers appears to have made the magazine's 100 most influential lawyers list in 1997 and 2000 and its 50 most influential women lawyers list in 1998.
  Now, one might suggest that there's a difference between a "top lawyer" — which in our mind suggests someone unusually brilliant and well schooled in the law — and a "most influential" lawyer: Larry Tribe or John Roberts might make the cut for the first list; Jack Abramoff would sit comfortably on the second.
  But let's accept for the moment that "top lawyer" is a fair sort of shorthand for "most influential lawyer." And then let's ask, why did the National Law Journal consider Miers to be so "influential"? If the NLJ items posted at the pro-Miers site are any indication, it wasn't because she had a keen legal mind or some other qualification for the Supreme Court. It was, in large part, because she was so well connected, even then, to somebody named George W. Bush.
  . . . When the NLJ named Miers to its 100 most influential lawyers list in 2000, it began by saying she was Bush's personal attorney, that she had served as general counsel for Bush's gubernatorial transition team, that she "handled background research, looking for possible red flags, during [the] early days of [Bush's] 2000 presidential campaign," and that Texas newspapers have suggested that she might be named attorney general or get some other "key administration post" if Bush were elected president.
  Does anyone know if there is another side to the story? Was Miers on any "top 100" or "top 50" lists beyond the ones Grieve mentions?
More Defenses of Miers: Here is a link to the text of this morning's radio address by the President defending his choice of Harriet Miers to the Supreme Court.

Here is a link (scroll down) to a transcript of a RNC/White House Conference Call on Harriet Miers (10/06/05) to conservative activists urging them to support the nomination.

At both links, you can listen to the audio if you prefer that to reading a transcript.
Ron Cass Defends Miers Nomination: Ron Cass, the former dean of the Boston University School of Law, has published a defense of the Miers pick, although he concedes (as many of her defenders do) that "Ms. Miers wasn’t my pick, and wouldn’t have been if I had been choosing, because she doesn’t bring to the Court demonstrated excellence in the skill set that I value most for that position." So given his opinion of its merits, what then is his defense of the nomination?

You really should read the whole piece (entitled, Stop Whining – Right Choices and the Courts) which includes responses to arguments I made on Tuesday in my Wall Street Journal op-ed, but here is how his defense ends:
Conservative critics should be especially ashamed. Conservatives have been insisting that judges should respect the Constitution and laws, secure that this is enough to ask. Conservatives also have been aware that the Constitution grants substantial discretion to the President in making appointments. It is his call. We have elections to determine who gets to make picks such as this, and President Bush – to the delight of conservatives across the nation – won. Now he has picked someone he knows well and believes shares his vision of modest and law-bound judging, someone who helped steer the President to select other judges in that mold. Judges like John Roberts.

It’s time for those who have made common cause with the President to give him exactly the presumption that the Constitution does and political alliance should – that he has the right to make appointments of anyone who has the competence and temperament for the job. The presumption is that he has done this.

Now it’s time to stop whining before the next turn of the political wheel gives conservatives something real to whine about.

Related Posts (on one page):

  1. The Miers Standard:
  2. More Defenses of Miers:
  3. Ron Cass Defends Miers Nomination:
A Closer Look at Jones v. Bush: Jim excerpts Beldar's post on Harriett Miers' victory in the Jones v. Bush litigation in 2000. I noticed that Beldar didn't dwell on the legal questions litigated in the case, so I decided to take a closer look. My tentative conclusion: The Jones case seems pretty straightforward, and it's hard to draw much of a conclusion about Miers' legal skills from the opinions that were filed and the decisions that were reached.

  In this case, three Texas residents tried to alter the outcome of the 2000 Presidential election on the theory that Dick Cheney was a Texan. Cheney was a Texan, they contended, because he had lived in Texas when he was the head of Halliburton. Texas electors could not vote for the combined Bush/Cheney ticket if Cheney was from Texas because the 12th Amendment states that "[t]he Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves[.]"

  The trial court easily and properly rejected the plaintiffs' claim. First, the three Texas residents lacked Article III standing to sue:
  Because plaintiffs have failed to demonstrate a specific and individualized injury from the impending alleged violation of the Twelfth Amendment and are unable to show personal injury through harm done to non-defendant candidates, the court holds that they do not have standing under Article III to bring this suit.
  Second, Cheney was an inhabitant of Wyoming, not Texas:
  The record shows that Secretary Cheney has both a physical presence within the state of Wyoming and the intent that Wyoming be his place of habitation. It is undisputed that he was born, raised, educated, and married in Wyoming and represented the state as a Member of Congress for six terms. After additional public service, he eventually moved to Dallas, Texas to become the Chief Executive Officer of Halliburton Corporation ("Halliburton").
  On or about July 21, 2000 Secretary Cheney declared his intent to return to his home state of Wyoming. On or after that date, and before today, he traveled to Wyoming and registered to vote there, requested withdrawal of his Texas voter registration, voted in Wyoming in two elections, obtained a Wyoming driver's license (which, in turn, resulted in the voiding of his Texas license), and sold his Texas house. He advised the United States Secret Service that his primary residence is his home in Jackson Hole, Wyoming, and he retired from employment with Halliburton.
  The Fifth Circuit then heard a very quick appeal. The district court decision had come out on December 1, 2000, and the Fifth Circuit heard argument and entered a one-line affirmance on December 7th: "All requested relief is DENIED." The plaintiffs filed an emergency petition asking for more time to file a cert petition just a few days before the Texas electors were to meet, but the Supreme Court denied it. A cert petition was eventually filed — I'm not sure exactly when — but it was denied after the electors had met on December 18th.

  Perhaps Beldar intends his post to be tongue-in-cheek, so maybe I'm just not getting the joke by looking at the merits. If so, my apologies. But I don't think the opinions in this case provide a lot of insight into Miers' skills in constitutional law. I haven't read the briefs, so maybe there was a lot more to the case than I can see from the opinions. (I tried, but can't get the briefs via my Westlaw subscription.) And to be clear, I have heard (and don't doubt) that Miers was a very solid litigator. But three random dudes were trying to overturn a Presidential election on the theory that Dick Cheney was a Texan, and it was pretty clear that Cheney just wasn't a Texan. If there were tricky legal issues in the case, they're not obvious to me; the lack of standing was pretty clear, and it's hard to imagine a legal definition of "inhabitant" under the Twelth Amendment that could have made Cheney a Texan given the factual record. Nor am I sure what legal issue could have been presented in a petition for certioriari, as the district court decision was pretty fact-specific.

  Based on the opinions that were filed, at least, it seems to me that Miers' victory in Jones v. Bush doesn't give us a lot of insight one way or the other. Maybe I'm missing something, but that's my tentative sense of things.

Related Posts (on one page):

  1. A Closer Look at Jones v. Bush:
  2. Beldar Defends Miers' Litigation Skills.--

Friday, October 7, 2005

With Friends Like These . . . : Dan Coats, the former GOP Senator tasked with helping Miers get through the Senate vote, isn't off to a very good start. Here's the defense of Miers that he gave today on CNN:
  If great intellectual powerhouse is a qualification to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole.
  Thanks, Senator Hruska Coats.
Beldar Defends Miers' Litigation Skills.--

Beldar has a long post defending Harriet Miers' career as a litigator, including her brief-writing skills. The last case he covers is a constitutional one, "Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001)."

It appears that Harriet Miers, on behalf of candidate and President-Elect George W. Bush, became one of the country's exceedingly few lawyers ever to handle a case involving the Twelfth Amendment. (How many Twelfth Amendment cases have John Roberts, Larry Tribe, and David Boies collectively handled? Why, I believe that number would be ... zero!)

Twelfth Amendment to what, you ask? It definitely looks like they're talking about the U.S. Constitution.

You remember that one, doncha? "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves[.]" Gosh, that might have been embarrassing! Win in the Supreme Court in Bush v. Gore, then have another federal court rule it was all for naught if both Bush and Cheney were held to be inhabitants of Texas? Ouch.

I wonder: Who was on the other side of Ms. Miers in that case? Who was trying to undo the 2000 election with this Twelfth Amendment argument? Hmmm — hey, I recognize this guy too: Sandy Levinson. He's only the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law. (Translation: heap big professor-guy.) "[A]uthor of over 200 articles in professional and more popular journals." Been a visiting prof at some other pretty good law schools: Harvard, Yale, New York University, and Boston University law schools. Co-author of a leading constitutional law casebook. I actually sorta know Prof. Levinson. Had him for a class, and I edited a book review he wrote for the Texas Law Review; I liked him a lot, and he's definitely one of the national stars on the UT-Law faculty. (I think he blogs some too!)

I suppose that would also make him one of those grand constitutional scholars who spends pretty much all of his time thinking about questions of great pith and moment. You know, the kind of superior, intellectually powerful, big-leagues lawyer that Harriet Miers ... obviously just isn't.

"So tell us, Beldar," you plead, "How'd that case turn out? Did Prof. Levinson save the day for either Al Gore or Joe Lieberman by keeping the Texas electors from voting for both Bush and Cheney?"

Well, the short answer, friends and neighbors, is that Harriet Miers just flat out kicked the distinguished Prof. Levinson's butt in court. On just about every issue, too. And she did it not once, not twice, but three times: federal district court, then again on appeal in the Fifth Circuit, and then again in the U.S. Supreme Court — another one of those "cert. denied" notations.

You ask breathlessly: "But is that 'cert. denied' really a win?" Why yes, friends, it surely is. Because, you see, when you've won in the lower courts, then your job as a lawyer is to persuade the Supreme Court not to take the case. Which is exactly what Harriet Miers did here — after first winning so convincingly in the federal district court that the Fifth Circuit, on the way up, didn't even bother to write an opinion of its own.

Further, though Beldar doesn't mention it specifically, in some cases Miers was the only lawyer in her firm listed as the counsel of record, so her involvement would have been central.

Related Posts (on one page):

  1. A Closer Look at Jones v. Bush:
  2. Beldar Defends Miers' Litigation Skills.--
The Selling of Harriet Miers: I realize that the White House is trying to sell the Miers candidacy to conservatives, but stuff like this seems a little desperate:
Fri Oct 07 2005 17:24:18 ET
The DRUDGE REPORT has learned from a senior official on Harriet Miers’ confirmation team that her political evolution began in 1984 during the Reagan revolution when she voted to reelect President Ronald Reagan.
  Well, there goes the Walter Mondale Fan Club vote.
Miers, Miers, Miers: More interesting stuff on Harriett Miers from David Frum, including a link to this December 2004 profile and a piece by John Yoo.
Sandra Day O'Connor: Tom Goldstein has a preview of Joan Biskupic's new book on Justice O'Connor. Sounds fascinating.
More First Amendment Violation in the Name of "Privacy" and of "Non-Discrimination":

California version of Megan's Law orders the California Department of Justice to put on the Web information about sex offenders; but Cal. Penal Code § 290.46(j) says:

(1) A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.

(2) Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business establishment.
. . .

(4) (A) Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) or in violation of paragraph (2) shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney's fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).

(B) Whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of misuse of the information available via the Internet Web site in violation of paragraph (2), the Attorney General, any district attorney, or city attorney, or any person aggrieved by the misuse is authorized to bring a civil action in the appropriate court requesting preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern or practice of misuse. The foregoing remedies shall be independent of any other remedies or procedures that may be available to an aggrieved party under other provisions of law, including Part 2 (commencing with Section 43) of Division 1 of the Civil Code.

The California Justice Department's Megan's Law FAQ plausibly interprets this as barring people from telling others about what they learned from the Web site, as a form of "use" of the information:
I want to share with others the information I found on the Attorney General's Megan's Law Website. Does the law prohibit me in any way from sharing this information?

A person may use the information disclosed on the Attorney General's Web site only to protect a person at risk. It is a crime to use the information disclosed on the Attorney General's Internet Web site to commit a misdemeanor or felony. Unless the information is used to protect a person at risk, it is also prohibited to use any information that is disclosed pursuant to this Internet Web site for a purpose relating to health insurance, insurance, loans, credit, employment, education, scholarships, fellowships, housing, accommodations, or benefits, privileges, or services provided by any business. Misuse of the information may make the user liable for money damages or an injunction against the misuse. Before using the information disclosed on this Web site, you may want to consult with an attorney or merely suggest to others that they view the Web site for themselves.

So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one's purpose is "only to protect a person at risk." If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people -- not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person -- one risks damages liability or an injunction.

Seems like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it's unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I'd think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record. But it seems that California weighs the privacy of public-record information about sex criminals more heavily than its law-abiding citizens' constitutionally protected free speech.

Thanks to Cathy Seipp for the pointer.

Women Tenured At A Higher Rate Than Men?: The Daily Princetonian has an interesting story on gender and tenure in Princeton's humanities and social sciences departments. Of particular interest: It seems that women faculty members in the humanities and social sciences at Princeton receive tenure more often then men. According to a recent report,
34 percent of women hired as assistant professors in the humanities and social sciences eventually gain tenure, compared to 27 percent of men. The difference is due to the significantly higher number of women in the social sciences who receive tenure: 42 percent of women compared to just 23 percent of men. The humanities were more evenly divided, with 33 percent of men and 30 percent of women receiving tenure.
  It's a surprising result, I think. I wonder if the same is true at other universities, to the extent there is any data on this question. Any thoughts?

  UPDATE: Note that the AALS has some data on such questions in the context of law schools, available here.
Juvenal Justice:

A colloquy quoted in Judge Kozinski's powerful dissent in In re Complaint of Judicial Misconduct reminded me of a line from one of Juvenal's Satires:

MR. KATZ: And the motion to lift the stay is denied?
THE COURT: Denied; that’s right.
MR. KATZ: May I ask the reasons, your Honor?
THE COURT: Just because I said it, Counsel.
I wish it, I command it. Let my will take the place of a reason.

Juvenal had his own axe to grind, and a rather different sort of decisionmaker that he was condemning; likewise Martin Luther, who liked to use the line to condemn the Pope. But it seems to me the line is more broadly applicable, including apparently to some federal courtrooms.

Congratulations, David! This is wonderful news.
A Future Supreme Court Justice,

or Nobel Prize economist, or Pulitzer-Prize winning author, or, who knows: Natalie Ilana Bernstein, born October 6, 2005, six pounds, eight ounces. Father is especially proud of mother, who resolved to labor naturally, and did so despite a forty-two hour labor and a posterior baby.

Related Posts (on one page):

  1. Justice Bernstein:
  2. A Future Supreme Court Justice,
[Puzzleblogger Kevan Choset, October 7, 2005 at 12:15pm] Trackbacks
More Dying on the Same Day:

William Shakespeare and Miguel de Cervantes, the two great authors of their age, both died on April 23, 1616. Yet, as with yesterday's post, this coincidence would have been largely ignored by a hypothetical Seventeenth Century international newspaper. Why?

A Thought on the Harriett Miers Debate: Looking around the blogosphere, I'm struck by how many of the arguments made for and against the nomination of Harriet Miers have nothing to do with Miers and everything to do with who else seems to support or oppose Miers. This isn't necessarily an irrational position, at least in most cases. When you have limited information, it often makes sense to use the views of others as proxies. But both Republicans and Democrats appear pretty evenly split on the Miers nomination, which means that a series of plausible arguments of this type exists to justify either position from either political perspective.

  The arguments seem to run like this:

  If you're right of center and support the nomination: You should approve of the Miers nomination because 1) the President has picked Miers, and you can trust him; 2) several prominent conservatives like James Dobson and Leonard Leo support the nomination, and they must know something you don't; and 3) the loudest conservative critics of the Miers nominations are the annoying ivory tower elites, and if they don't like her it's probably a sign that you should.

  If you're right of center and oppose the nomination: You should oppose Miers because 1) Democrats like Harry Reid recommended her to Bush, and seem to be pretty happy with the choice; 2) the Alliance for Justice and PFAW haven't attacked Miers; and 3) lots of solid conservatives are upset about the Miers nomination.

  If you're left of center and support the nominaton: You should support the nomination because 1) Democrats like Harry Reid recommended her, and seem to be pretty happy with the pick; 2) many conservative activists oppose it, and that's probably a sign that Miers is as good as it gets.

  Finally, if you're left of center and oppose the nomination: You should oppose the nomination because 1) George W. Bush picked Miers, and having promised another Scalia or Thomas he surely will deliver; 2) prominent conservatives like James Dobson and Leonard Leo are in favor of the nomination, and their enthusiasm means that Miers must be bad news.

  Something for everyone, it seems.
Lawyers Like to Blog, New York Times Reports: Story here.
Duke Law Journal Call for Papers on Issues Raised by Hurricanes Katrina and Rita:

The Duke Law Journal will be holding a symposium on administrative law issues raised by Hurricanes Katrina and Rita, and it occurred to them (and me) that some readers of this blog might be interested in submitting.

From the Call for Papers: "[The hurricanes] have also brought a number of important administrative law issues into sharp relief. For example, important questions remain to be answered about federalism, including the legal limits on federal involvement and the proper resolution of conflicts between federal and state agencies in crisis scenarios; the intertwined history of domestic crises and the growth of the administrative state; judicial review of administrative decisions made under crisis conditions; governmental liability for pre-crisis administrative failings or post-crisis responses; emergency powers in times of domestic emergency; and the role of race and class in administrative responses to catastrophe."

The full Call for Papers is available here.

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."

Earl Warren Burger: From a Washington Post story about Harriett Miers making the rounds on Capitol Hill:
  [Mier's] relatively thin paper trail adds greater importance to her personal meetings with senators and to the committee hearing that is expected to begin in about three weeks. While generally well received, Miers has had a few awkward moments, including one during her Wednesday session with Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee.
  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.
  Hat tip: Jason Sorens.

  UPDATE: This scoop by Stephen Henderson is also interesting, via another commenter:
  In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure.
  In the same testimony, Miers, then a member of the council, said she believed that the city should divest its South African financial holdings and work to boost economic development in poor and minority areas. She also said she "wouldn't belong to the Federalist Society" or other "politically charged" groups because they "seem to color your view one way or another."

Thursday, October 6, 2005

Krauthammer: "Withdraw This Nominee": Charles Krauthammer's Friday column has upped the ante on George Will et. al. by urging the withdrawal of Harriett Miers's nomination to the Supreme Court. An excerpt:
  [N]ominating a constitutional tabula rasa to sit on what is America's constitutional court is an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom. The only advance we've made since then is that Supreme Court dukedoms are not hereditary.
  . . .
  There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.
  Hat tip: Simon Dodd.

The Harriet Miers Oeuvre.--

The University of Michigan has helpfully put online much of Harriet Miers' published wrtiting (scroll down to "Articles by Miers").

I have read about a half dozen of Miers' pieces so far--nothing particularly good or bad about any of them. They are pretty standard practitioner fare, apparently fully competent, but seemingly no better or worse than a thousand lawyers at good firms in Chicago would do. There is none of the flair that showed in many of Roberts' memos in the Reagan Administration. I've read nothing intellectually substantial by Miers so far, but then I've just started working through the list. If she has any sharp analytical skills, they are not apparent in the pieces I've read. Given Miers' genuine success in practice, I suspect that she is a better advisor and negotiator than writer.

One thing stands out: most of Miers' published writing that I've read is stimulated by her close ties to the ABA.

Very Cool Guinness Ad: See it here, via Kieran Healy.
I Like the Man's Attitude:

My colleague Professor Bainbridge writes, in a post entitled "On Becoming a Problem Child,"

John Dickerson makes a point about the Harriet Miers nomination that rings true for me:

The White House listens to these outraged voices but considers them more a nuisance than genuine problem.

I have the distinct impression that the Democratic Party sees the liberal blogosphere as being inside the tent, while the Republican Party views the conservative blogosphere as being somewhere between an irrelevance and a minor nuisance. Maybe this is true, at least in part, because many prominent "conservative" bloggers (Andrew Sullivan, Glenn Reynolds, Stephen Green, and Eugene Volokh spring to mind) are not exactly stalwart Republican party loyalists but rather libertarians (or whatever) who put routinely put their principles ahead of party interests. Alternatively, maybe the Democrats have just decided to follow Lyndon Johnson's advice about keeping your critics inside the tent peeing out rather than outside the tent peeing in.

In any event, all of this raises the question of how those of us in the conservative blogosphere can elevate ourselves into the category of genuine problem as opposed to mere nuisances. I'm open to suggestions.

I have no opinion on the factual question of how the Republican Party views bloggers, and I don't want to speak in this post about what people should do about the Harriet Miers nomination. But as a matter of principle, I surely sympathize with any man who wants to be a problem.

NYC Subway Threat?: Story here, via Drudge. Of course, it's hard to know right now if this is a false alarm or the real deal.
More on Miers, Intellectuals, and Evangelicals: Over at TNR's Etc. blog, Noam Scheiber responds to my post criticizing the argument that the conservative reaction to the Miers nomination reveals a divide between intellectuals and religious conservatives. He writes:
  Sure, people like Perkins and Santorum have hedged their bets, taken a wait and see attitude, maybe even expressed some reservations or concerns. Even James Dobson has backed off his early enthusiasm for Miers a bit. What these people haven't done is make a principled case against Miers, which means they can still be persuaded to support her--and, I suspect, they probably will once they see more evidence of her political and social conservatism.
  On the other hand, a principled case against Miers is exactly what conservative intellectuals like George Will, David Frum, and Bill Kristol have made.
  I think Scheiber is confusing two different questions. The first question is whether Bush made the right call when he nominated Miers; the second question is whether Miers should be confirmed by the Senate. What Scheiber presents as a divide between intellectuals and religious conservatives is really a divide between conservatives debating the first question and conservatives debating the second question.

  Dobson and Santorum have been focused on the bottom line of whether they support the confirmation of Miers (and in Santorum's case, whether he will vote up or down). In contrast, Will, Frum, and Kristol have harshly criticized the President for having nominated Miers in the first place; to my knowledge, none of them have taken the position that that Miers should be defeated in the Senate. George Will comes the closest when he says that "it might be very important" that Miers is not confirmed, but I don't think that's quite enough.

  In sum, the two groups aren't disagreeing, but rather answering different questions. The commentators are ruminating on process, while the politicans and political leaders are focusing on the bottom line vote.

  UPDATE: In response to a comment below, I should have been explicit that the two sets of positions aren't inconsistent. Lots of conservatives feel that Bush made a poor choice, given the options, and they feel conflicted about whether the Senate should now vote to confirm Miers. The commentators are focusing on the former, the political leaders on the latter.
Oh No -- a Feminist!

Stanley Kurtz (National Review Online's The Corner) writes:

Although I would have chosen differently, I’ve tried to give the president the benefit of the doubt on the Miers nomination. Having said that, I note a worrisome report in today’s Chronicle of Higher Education. It seems that Miers was a key figure behind the establishment of a lecture series in women’s studies at SMU. Here is the critical excerpt from today’s Chronicle story:

In the late 1990s, as a member of the advisory board for Southern Methodist University's law school, Ms. Miers pushed for the creation of an endowed lecture series in women's studies named for Louise B. Raggio, one of the first women to rise to prominence in the Texas legal community. A strong advocate for women, Ms. Raggio helped persuade state lawmakers to revise Texas laws to give women new rights over property and in the event of divorce.

1. Ms. Miers, whom President Bush announced on Monday as his choice to fill the Supreme Court seat being vacated by Justice Sandra Day O'Connor, not only advocated for the lecture series, but also gave money and solicited donations to help get it off the ground.

A feminist icon, Gloria Steinem, delivered the series's first lecture, in 1998. In the following two years, the speakers were Patricia S. Schroeder, the former Democratic congresswoman widely associated with women's causes, and Susan Faludi, the author of Backlash: The Undeclared War Against American Women (1991). Ann W. Richards, the Democrat whom George W. Bush unseated as governor of Texas in 1994, delivered the lecture in 2003.

Now I don’t think this necessarily establishes Miers as a closet feminist. Unfortunately, the pattern here is repeated continually by conservatives everywhere. Wealthy conservative donors to universities typically seek to share in the prestige of these institutions–or as in this case, to honor their friends and loved ones and encourage young students in the paths they have trod. In doing so, they give money to a school who’s own purposes may be very different from their own. . . .

I would think that it would be hard to establish Harriet Miers as a closet feminist, because it seems to me that she's an out-of-the-closet feminist, in the traditional sense (though I realize that it's not the only possible sense) of one who believes in the social, political, and economic equality of the sexes. I don't know how much she's talked about it, but she's lived it — her career is that of a woman who believes that women should have the same opportunities that men do. My guesses as to other feminists: Condoleezza Rice; Sandra Day O'Connor; Clarence Thomas's wife Virginia Thomas; perhaps Clarence Thomas himself, judging by his choice of wife, and assuming that he likely admires and respects her career choices; Chief Justice Rehnquist's daughter Janet; the list could go on much further. In fact, the striking feature of this traditional "equity feminism" is how much it has prevailed in the lived experience of the conservative elites, as well as liberal elites. If it hadn't prevailed, it would be hard to find any women judges, since equity feminism was in large measure a repudiation of the view that women shouldn't become judges.

Now this is something of an aside in Stanley Kurtz's post, and later he goes on to disapprove of "left-leaning feminists." Perhaps that's what he meant to write in the material I quote as well, and didn't mean to disparage feminism of the yes-I'll-be-a-lawyer-or-even-Secretary-of-State variety. But if that's so, then why even mention "feminist" at all in the negative reference, rather than just expressing concern about the "left-leaning"?

I'm proud to be a feminist in the traditional equal-opportunity sense, and I'm glad Ms. Miers seems to be a feminist, too. No need for her to be in the closet about that. And I think it would be a serious mistake, conceptual, moral, and political, for the conservative movement to reject feminism (as opposed to affirming a sound conception of feminism).

UPDATE: Here's Stanley Kurtz's response, which I much appreciate his posting:

In response to Eugene Volokh, who argues that conservatives should not reject feminism per se, have no problem affirming the "equity feminism" backed by folks like Christina Hoff Sommers. It's the left-leaning feminism sponsored by folks like Gloria Steinem and Susan Faludi (what Sommers calls "gender feminism") that I have a problem with. The difficulty is that when academics and liberals talk about feminism, they don't mean the equity feminism affirmed by Christina Hoff Sommers. I agree that we need to do more to take the word back. Having said that, in common parlance on today's campus, the word feminist means the sort of left-feminism that considers someone like Sommers to be a non-feminist apostate. So it's a complicated word that gets used in different ways by different folks in different contexts.

The Senate Steps Up:

Yesterday the Senate voted 90-9 to set limits on the handling of detainees. There is coverage of the vote here and here. I do not know whether the standard adopted by the Senate is the best approach, but I nonetheless view the vote as a positive development.

If anything, this newfound Congressional willingness to address the rules of detention is long over due. While I certainly believe that the Executive Branch is due a fair degree of deference from the courts in its execution of war-related activities, the Constitution confers the ultimate responsibility for such matters to the legislature. Article I, section 8 explicitly delegates the power "to make Rules concerning captures on Land and Water." Congress also has the power "to make Rules for the Government and Regulation of the land and naval Forces." Viewed in this light, Congress is not interfering with executive power. It is exercising a responsibility the Constitution explicitly places in the legislature's hands.

Absent Congressional enactments specifying how military detainees are to be treated, the precise limits of the executive's authority are necessarily ambiguous. This ambiguity may give the executive some measure of leeway -- a leeway the White House and military apparently want to preserve -- but it also has unfortunate consequences. Among other things this ambiguity encourages legal challenges to military operations and invites the courts to second-guess decisions that should be made by the political branches. Insofar as the legislature sets clear rules, there will be less room for the judiciary to interfere. If one fears excessive judicial meddling in the conduct of the war on terror, as I do, one should applaud this development.

Again, I am expressing no opinion on the substance of the standards adopted by the Senate. I do not know whether they are stoo strict or too lenient. Rather, I am suggesting that as an institutional matter we should welcome the Senate's willingness to fulfill its Constitutuonal obligation to establish rules for military conduct. I hope that the House will follow suit.

A Reason I Should Move to Delaware?

The Delaware Supreme Court reversed a lower court opinion requiring an internet service provider to disclose the identity of an anonymous blogger who allegedly made defamatory claims about a public official. The court decision is here. (Via How Appealing)

The Future of Law Blogging: Over at PrawfsBlawg, Matt Bodie is considering the future of law blogging:
  We still seem to be in the early stages of the blogosphere. But I'm wondering, particularly with respect to law blogs, what the future holds. Here are a few possibilities as to directions we'll take in the future.
1. We're in the "Far and Away" land rush phase, and pretty soon the continent will be filled up.
2. We're in the early Internet Boom phase, and a big shakeup is coming down the pike.
3. Blogging is a transitional technology that will lead to new forms of connectivity and creativity. Current bloggers will lead the way to these new formats.
  It's hard to predict these things, of course, but I would suggest a fourth future: A continued increase in the overall amount of law blogging until we reach a natural equilibirum, and then a roughly constant amount of blogging with frequent turnover among active law bloggers. Here's my thinking. Right now law blogs are pretty new, and the number of law bloggers is increasing. But it's much easier to start a blog than to keep it up. A typical post might take an hour or so to research, write, and edit. And the better and more thoughtful the post, the more time it takes. Only so many people are willing to put in those hours on a regular basis, and members of that twisted elite group presumably will change over time, too.

  Among law professor blogs, the big variable would seem to be whether blogs eventually will be taken more seriously in the scholarly community than they are now. Right now most lawprof bloggers do it for fun, but don't consider blogging "real work." If this changes, I think it will transform the nature of law blogs considerably. Whether that would be a good thing or a bad thing is an open question.
Same-Sex Marriage Leading to Polygamous Marriage in the Netherlands?

Cathy Young explores this story, which seems to have been making the blogosphere rounds, and finds less there than meets the eye.

[Puzzleblogger Kevan Choset, October 6, 2005 at 1:39pm] Trackbacks
Dying on the Same Day:

It's an oft-cited fact that John Adams and Thomas Jefferson died on the same day as each other. Writers Aldous Huxley and C.S. Lewis also died on the same day as each other, but their deaths, even occurring together, did not warrant major headlines. Why?

2008 and The Political Calculus on Miers:

Right now things are obviously frothy on the political front--both of the Washington papers (the Times and the Post) report on the heated meetings that took place yesterday between conservative activists and the White House on the Miers nomination. Democrats seem to be standing back and enjoying the show for now.

Here's what I will be interested to watch for politically--will one of the likely 2008 Republican Presidential candidates decide that he or she can break from the pack and score points with conservatives by opposing this nomination? Brownback and Santorum have been noticeably evasive so far. I've heard nothing from George Allen, McCain, or Frist--perhaps I've just missed reports on them though. Could any of them score points with conservative activists by moving first?

If one or more of the conservatives peels away from the President on this nomination, then the feeding frenzy could be on. At that point it seems difficult for Democrats, notwithstanding Harry Reid's enthusiasm for her, to toe the party line and support a stealth nominee that even many Republicans think unqualified. If, however, he keeps all of the Republicans on the reservation, then I think she will probably barely survive. Of course, then there is the question of what kind of deals the President might have to cut to keep them on board.

If the Times and Post reports are accurate, then surely some prospective 2008 Republican Presidential candidates must be asking themselves the same question.


I've been tied up with the ACTA Conference, so haven't been posting. If you happen to stumble across this post, however, the Comments have several updates about the positions of the various Senators discussed here.

Speaking at ACTA:

I will be speaking tomorrow at the national conference of the American Council of Trustees and Alumni, ACTA, describing my adventures with the Dartmouth trustee election. The program, which this year celebrates ACTA's 10th Anniversary, looks quite interesting. It kicks off today with a screeing of Evan Coyne Maloney's new film "Indoctrinate U" and continues tomorrow with speakers including David Brooks, Ed Meese, John Engler, and others.

Towards a Theory of Academic Blogging: Henry Farrell has a very good essay about academic blogs in the latest Chronicle of Higher Education. Hat tip: Concurring Opinions.
Warren Defends Times Editorial On Bankruptcy Reform and Hurrican Katrina:

Professor Elizabeth Warren challenges my criticism of the ill-informed New York Times Editorial the other day. Unfortunately, it appears that she falls into much of the same confusion as the New York Times itself did.

First, Warren takes issue with my insistence that the "special circumstances" exception in the legislation will protect the victims of Hurricane Katrina from the means-testing provision of the bill. This seems to be the Times's concern, although the Editorial is so vague, confused, and lacking in specificity it is not clear what precisely are the provisions to which the Times is objecting. She writes:

[Continue Reading Warren Defends Times Editorial on Bankruptcy Reform and Hurricane Katrina under hidden text]:

Democracy, Kelo-Style:

When I first read Kelo, one thing that jumped out at me was the cute and endearing description of the way in which local land-use and redevelopment plans are made and implemented. According to Justice Stevens, all the "stakeholders" get together and thoughtfully and selflessly deliberate on what is best for the community. Then in the end, after thoughtful reflection and soul-searching (but heavens, no politics!), it just turns out that what is good for New London and the Kelo homeowners coincidentally turned out to be exactly what Pfizer wanted. Justice Stevens's warm and cuddly view of local land-use politics took me back in time to my 9th Grade Civics Class where I learned that this is how democracy works (as an aside, strangely enough, I lived in Ann Arbor at the time my 9th grade civics teacher Mrs. Sandalow was married to the Dean of Michigan Law School at the time).

While inspiring and heart-warming, may I gently offer the opinion that Justice Stevens's description of local land-use politics is well, a bit naive? This description seems a bit closer to the mark in describing my impressions of how such decisions are made:

On May 21, Albert G. Mauti Jr. and his cousin Joseph hosted a fundraiser for Assemblyman Joseph Cryan at the Westmount Country Club in Passaic County. The two developers and family members picked up the $10,400 dinner tab, donated another $8,000 and raised more than $70,000 that night for the powerful Union County Democrat, according to state election records.

Three days later, the governing body in Cryan's hometown of Union Township — all Democrats — introduced an ordinance paving the way for the Mautis to build 90 or so townhouses on six acres of abandoned industrial land along the Conrail line in town.

There is just one problem: Union Township doesn't own the land.

It is owned by Carol Segal, a 65-year-old retired electrical engineer. Over the past 10 years, the Union Township resident says, he has spent about $1.5 million to acquire the property, and he, too, wants to build townhouses there.

Segal said he met with Cryan, who is head of the township's Democratic Party, and other local officials "scores of times" over the past five years to discuss the project. He claims the talks turned adversarial after he rejected proposals to work with various developers they proposed.

On May 24, the five-member township committee voted unanimously to authorize the municipality to seize Segal's land through eminent domain and name its own developer.

"They want to steal my land," Segal said. "What right do they have when I intend to do the exact same thing they want to do with my property?"

Cryan, 44, a rising star in state Democratic politics, denied any connection between the fundraiser and the committee's vote. He described the Mautis as "good friends," but said he played no role in shaping the township's redevelopment plan.

Tony Soprano, call your office.

Gods v. Geeks: Is the conservative opposition to Miers mostly the work of a few whiny Beltway intellectuals? Over at Slate, John Dickerson tries to make that case:
  The debate within the Republican Party over Harriet Miers has quickly devolved into a simple question: Is the nominee qualified because of her religious faith, or unqualified by her lack of intellectual heft? On the one side, James Dobson, Miers' fellow parishioners at Valley View Christian Church, and President Bush speak for her heart. On the other, George Will and William Kristol and others who swooned for John Roberts decry her unimpressive legal mind.
  In this battle, the White House has clearly sided with the churchgoing masses against the Republican Party's own whiny Beltway intellectuals. The Bushies have always mistrusted their own bow-tied secularists, but the rift has never before been so public.
  This is a very provocative picture, but I don't think it's an accurate one. It's true that different factions of the GOP have different concerns, and focus on different questions. It's also true that lots of conservative intellectuals have either objected to the Miers nomination or been noncommittal. But my sense is that such reactions are relatively widespread on the right, including the likes of Rick Santorum, Rush Limbaugh, Gary Bauer, Pat Buchanan, and Phyllis Schlafly. If the members of this group count as "bow-tied secularists," then that's news to me. Dickerson focuses on James Dobson, and presents him as an enthusiastic Miers supporter. But Dobson's half-hour radio show on the Miers nomination Wednesday (summary here) indicates that Dobson is considerably more conflicted than Dickerson suggests.

  Of course, whether this discomfort will amount to anything -- and whether it is justified -- remains to be seen. But I don't think it's accurate to suggest that it's limited to a small group of commentators. Hat tip: Howard.

Wednesday, October 5, 2005

1996 Magazine Article About Harriett Miers: Evan Schaeffer's Legal Underground has the scoop. Thanks to Michael Cernovich for the link.
Concurring Opinions: My friend and colleague Daniel Solove has broken off of PrawfsBlawg and has started a new group blog, Concurring Opinions. From the intro blurb:
Concurring Opinions will be a group blog, and other co-bloggers will be joining me shortly. Together, we’ll cover issues involving law, culture, and current events. We'll focus on technology, privacy, intellectual property, contract, property, torts, constitutional law, criminal law and procedure, literature and humanities, legal theory, sociology, and more.
  The first co-blogger to join Dan appears to be Kaimi Wenger, and I understand that more co-bloggers and guest-bloggers are on the way. Be sure to check it out.

  UPDATE: The new blog even has its own registration statement.
Hurricane Katrina and New Bankruptcy Law:

Someone might want to make sure the New York Times Editorial Board gets a copy of this as it seemed to be unaware of the actual provisions of the bankruptcy reform legislation in its Editorial the other day:

News Advisory For immediate release Contact: Jeff Lungren/Terry Shawn October 5, 2005 202-225-2492

Justice Department Will Utilize Flexibility in New Bankruptcy Law to Assist Hurricane Katrina Victims

Letter to Chairman Sensenbrenner Describes 7 Steps Department is Taking

WASHINGTON, D.C. - The Justice Department today in a letter to House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) states it will utilize the flexibility in the new bankruptcy reform law to assist the victims of Hurricane Katrina and other natural disasters. The letter, in response to a September 27, 2005 letter from Chairman Sensenbrenner, describes the 7 steps the Justice Department's U.S. Trustee Program is taking to ensure that appropriate discretion under the new law is exercised in a way most favorable to victims of natural disasters.

Chairman Sensenbrenner stated, "I commend the Justice Department for utilizing the new law's flexibility to assist the victims of Hurricane Katrina. The new law anticipated disasters such as Hurricane Katrina; as a result, Congress crafted this bipartisan law to provide compassion and flexibility to those affected. The appropriate steps announced today demonstrate this key aspect of the new law will be implemented as intended. In addition, I look forward to seeing the new law in effect nationwide so those abusing the current bankruptcy system to shirk their child support obligations and other responsibilities will no longer be successful."

The Justice Department's letter to Chairman Sensenbrenner is available at

Chairman Sensenbrenner's September 27, 2005 letter to the Justice Department is available at

Who Was the First Supreme Court Justice To Have a Lawyer Spouse,

and when did she marry him?

Reg Brown Responds to George Will: Reginald Brown, a lawyer at Wilmer Cutler who served in the White House Counsel's Office under Bush, has penned a response to George Will's column on Harriett Miers that I am reprinting with Reg's permission. I think I'm somewhere between Reg and Will on this one, or maybe on a different plane altogether, but Reg's take seems very much worth considering:
  George Will’s column on Harriet Miers and the President is both unfair and sloppy. He begins by suggesting that the President is uninterested and incapable of making sophisticated judgments about the Court and judicial philosophies. This charge is patently unfair. The President picked John Roberts, and has a stellar first term record of selecting conservative judges for the appellate bench. There hasn’t been a liberal in the bunch with the exception of Roger Gregory and Barrington Parker, both of whom the President obviously nominated as part of an early political compromise that got Roberts and others on the circuit bench. This is a man who almost lost the Presidency because of the liberal activism of the Florida Supreme Court. He understands full well the power of the Court and has been serious about his appointments in the past.
  Will’s second argument is that the President didn’t consult with serious people before making the choice of Miers. This is also a silly argument. We know that the President consulted with eighty members of the Senate, including all of the Republicans on Senate Judiciary. He also reached out to people like Leonard Leo and Jay Sekulow. And he has serious, principled conservatives, like Bill Kelley, on the White House Counsel’s Office staff. These aren’t cronies or toadies who will only tell the President what he wants to hear. And they are, for the most part, very comfortable with the Miers choice. And some of these people have seen Miers up close -- vetting the choices for the first vacancy, taking Roberts through grueling moot court sessions, and recommending judges for the lower courts.
  Will’s third argument is equally weak. He basically says the President has forfeited his right to be taken seriously because he didn’t veto McCain-Feingold. As an initial matter, if the President can’t be taken seriously for signing the bill into law, the Senate can’t be taken seriously for having passed it. McCain-Feingold was a bad law, but bad laws get enacted all the time, and at least the President had the sense to have GOP political lawyers challenge significant components of the law in court. While it is true that DOJ defended the law on appeal, the politics of the entire situation were plain, and understandable, to all involved. The President has demonstrated great seriousness about the Constitution during his tenure, particularly as it relates to the power of the Executive under Article II.
  Will’s fourth argument is the most dangerous and absurd. He suggests Miers shouldn’t be approved because she hasn’t shown a "talent" for "constitutional reasoning" honed through years of "intense interest" and practice. Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution’s text, structure and history and who call balls and strikes. Bush is in favor of demystifying the Court and the Miers choice is part of that effort. Will seems to be buying into the "Nine Wisest Men" mythology that is a root cause of the Court’s aggrandizement of power over time.
  Will’s final argument is that Miers is an affirmative action quota pick. Underlying this theme is a subtle snobbery that conservatives should dismiss out of hand. One need not go to Harvard or Yale Law or be a member of the right Inn of Court to serve with distinction. Miers’ career suggests she is plenty smart and obviously hard working. She also happens to be a gun-toting evangelical who gives money to pro-life organizations and spends her free time taking care of her elderly mom. She’s served as a public official, a commercial litigator, a policymaker and Counsel to the leader of the free world. These aren’t the qualifications that have led to appointments in the recent past, but given the nonsense regularly emanating from the Court maybe they ought to be.
  Miers lives in the real world. She knows what the practical impact of a Kelo decision will be and that the laws of Nigeria and the European Union aren’t terribly relevant to U.S. constitutional analysis. And as important, the people that she hangs out with don’t give a hoot what Linda Greenhouse and the New York Times think. That’s not evidence of a quota pick -- it’s solid progress.
  I love George Will’s work, and he’s a great conservative, but he’s way off-base with today’s column.
Conservatives Lukewarm on Souter Nomination: As I noted below, I've been looking through Westlaw for news reports of past Supreme Court nomincations to see what was different or similar about past nominations and current ones. The following story appeared in the Washington Times on July 25, 1990, ten days after President George H.W. Bush nominated David Souter for the Supreme Court:
Joyce Price

  Conservatives expressed lukewarm support yesterday for Supreme Court nominee David Souter, but most predicted they will be behind him strongly once they know more about him.
  "The consensus is that we would have preferred someone else - not what we were given," said Richard Viguerie, chairman of the United Conservatives of America. "But we have to accept what's on the table and move forward."
  Mr. Viguerie made his comments at a news conference that featured leaders of five conservative organizations. "We're giving a cautious thumbs-up" to the nomination, he said, adding that the president "still has a seriously damaged relationshp with conservatives."
  Peter T. Flaherty, chairman of the Conservative Campaign Fund, said he could not endorse Judge Souter at this time.
  "There remain too many unanswered questions about who he is and how this nomination came about," he said. "President Bush needlesly passed over a number of highly qualified candidates for the court whose philosophy is well known. In doing so, he has taken an unacceptable risk . . ."
  . . .
  But despite the downbeat tone many expressed about Judge Souter's selection,David A. Keene, chairman of the American Conservative Union, predicted: "Most conservatives will get into the fight and fight for the confirmation of Judge Souter."
  Mr. Viguerie agreed. "We're driven by a lot of things. When the NARL (National Abortion Rights Action League) and Molly Yard (president of the National Organization for Women) start trashing this guy, our natural juices start flowing."
  Alan Keyes, chairman of Citizens for America, said the Souter confirmation struggle will be a national fight, "not an inside-the-Beltway situation." The White House, he said, "better gear up for the battle."
  Liberals are also preparing for combat. The same women's, pro-choice and civil rights organizations that lobbied to defeat the Bork nomination in 1987 vow to do the same thing to Judge Souter if they find out they don't like him. While most are officially taking a wait-and-see attitude, some are already convinced he is their enemy.
  "At this point we have to assume he's very anti-choice, since John Sununu, who's anti-choice, thinks he's wonderful and President Bush, who's anti-choice, thinks he's qualified," said Chung Seto, spokeswoman for the National Women's Political Caucus. "It's no longer enough to have no record. We've seen how that works with Anthony Kennedy. We need to know where he stands on women, abortion and civil rights."
I've Been Dissed:

Harold Myerson criticizes my naivete on the Editorial Page of the Washington Post this morning as one of "The Right's Dissed Intellectuals," leading with an extended quote from my post on "The Court and the Legal Culture":

Bypassing all manner of stellar Scalia look-alikes, the president settled on his own in-house lawyer, whose chief virtue seems to be that she's been the least visible lawyer in America this side of Judge Joseph Crater. Miers has authored no legal opinions that can be dissected, no Supreme Court briefs that can be parsed, no law review articles that can be torn apart.

Which, I suspect, is why her selection cuts so deep in right-wing circles. The problem isn't only that Miers is not openly a movement conservative but that she's as far from a public intellectual as anyone could possibly be. In one fell swoop, Bush flouted both his supporters' ideology and their sense of meritocracy.

Worse, he bypassed the opportunity to demonstrate their intellectual seriousness — conservatism's intellectual seriousness.

Consider the following from George Mason University law professor Todd Zywicki, writing on a right-wing legal-affairs blog on Monday: "There are two possible ways to think about appointments: one is to appoint those who will simply 'vote right' on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. . . . Bush's back-to-back appointments of [Chief Justice John] Roberts and Miers is a clear indication that his goal is at best to change the voting pattern of the Court. . . . Neither of them appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture."

Note Zywicki's trio of legal heavyweights: Louis Brandeis, Oliver Wendell Holmes, Earl Warren, all figures in the liberal pantheon (though Holmes was less a liberal than a dissenter from his era's conservatism). Now, after three decades of a legal counterrevolution against the egalitarianism of the mid-20th century, the right had developed its own pantheon, its Brandeises-in-waiting. And Bush ignored them all.

But the conservative intellectuals have misread their president and misread their country. Four and a half years into the presidency of George W. Bush, how could they still entertain the idea that the president takes merit, much less intellectual seriousness, seriously? The one in-house White House intellectual, John DiIulio, ran screaming from the premises after a few months on the job. Bush has long since banished all those, such as Army chief of staff Gen. Eric Shinseki, who accurately predicted the price of taking over Iraq. Yet Donald Rumsfeld — with Bush, the author of the Iraqi disaster — remains, as do scores of lesser lights whose sole virtue has been a dogged loyalty to Bush and his blunders. Loyalty and familiarity count for more with this president than brilliance (or even competence) and conviction.

I must confess, the man has a point.

Deja Vu All Over Again: I've been looking through old news reports of previous Supreme Court nominations, and it's hard not to feel that the media and congressional reaction to the nomination of John Roberts and Harriett Miers are following one of a handful of set scripts that have been around for a few decades. I was particularly amused by the following Associated Press report of the first day of the Souter confirmation hearings in 1990:
  The Senate Judiciary Committee today opened confirmation hearings on Supreme Court nominee David Souter, and the panel's chairman appealed to him for a "glimpse into your heart" on issues such as privacy and equal rights.
  Souter sat quietly in the cavernous committee room as Sen. Joseph Biden, D-Del., said lawmakers had a "duty to discover" his views on a range of issues that might come before the court. He did not single out abortion.
  The Supreme Court has been deeply divided in recent years with 5-4 rulings on many contentious issues such as abortion and civil rights, and conservatives were hoping that if confirmed, Souter would help anchor the court firmly on the right.
  The 50-year-old nominee was to get his chance to speak after each of the 14 committee members made opening statements.
  Despite calls by Biden and other Democrats for Souter to discuss his views, Republicans said the mandate for the committee was to judge his fitness for the high court. "We are certainly not here to find out how you will rule on various issues before the court," said Sen. Alan Simpson, R-Wyo.
  "Judge Souter is not running for political office," complained Sen. Orrin Hatch, R-Utah. "Judge Souter, I hope you will stand your ground when you sincerely believe you are being asked for answers you clearly cannot properly provide."
  The session was interrupted briefly when a dozen people, claiming to represent the gay rights group ACT UP, loudly protested the nomination. Capitol Police arrested the six men and six women and said each had been charged with disrupting a congressional hearing and demonstrating within a Capitol building.
  Souter is a former New Hampshire attorney general who was confirmed to federal appeals court earlier this year. He remains something of a legal enigma to the many conservative and liberal groups who have scoured his record since his nomination on July 23 to succeed retiring Justice William Brennan.
  The American Bar Association has given Souter its top rating for qualifications. Some groups, including the National Organization for Women, have come out against Souter, while others have reserved judgment. There has been no outcry from liberals similar to the one that preceded the rejection of Robert Bork's nomination during the Reagan administration, however, and no predictions that the Democratic-controlled Senate will defeat the nomination.
  Souter himself was a spectator for the first few hours of his confirmation hearings, and Democrats and Republicans sparred over the nomination.
  "Open for us the window into your mind," Biden told Souter. "And give us a little bit of a glimpse into your heart."
  Sen. Edward M. Kennedy, D-Mass., said he was concerned there was "little in his record that demonstrates real solicitude for the rights of those who are weakest and most powerless in our society."
  Sen. Strom Thurmond, R-S.C., said the questioning should not include "direct questioning about sensitive issues that may come before the court."
  Democrat Howard Metzenbaum of Ohio said the White House had sought to reassure the GOP right wing that Souter was their kind of nominee. "Does John Sununu know something which we don't?" he said, referring to Bush's chief of staff.
  Souter's approach to the law is undoubtedly conservative but there's not enough in the record to indicate, for example, how he would vote on the 1973 abortion rights ruling now being challenged by the Bush administration.
A Stunning Column By George Will: The blogosphere was abuzz last night by news of this hard-hitting column by George Will. I am tempted to post the whole thing but here is an excerpt:
It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked — to ensure a considered response from him, he had been told in advance that he would be asked — whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent — a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.
The White House should be getting very nervous this morning. But the real questions are: How nervous are Republican senators and are they capable of handling the responsibility of "advise and consent"? Will the Democrat senators accept a mediocre (or worse) nominee who they imagine will be more pliable in the future or will they actually oppose a nominee based on her lack of qualifications to be in the Supreme Court rather than on how she will vote once there?

Update: Well, we now have the answer to the question about Republican senators from this WSJ column by John Cornyn.

More on the Bush Administration Shamelessly Using Miers's Religion:

In the Comments to my last post, commentator "Steve" writes:

What bothers me is that there is not supposed to be a religious test for public office, and Republicans scream bloody murder every time a Democrat so much as mentions a nominee's religion (this came up at the Pryor hearings).

So it's strange, in this context, to hear conservatives urging each other to support the Miers nomination by citing her religion. How is it that a specific religion can be a positive, but never a negative?

It's doubly embarassing to hear this kind of talk from people who scorn the notion of the SC as a "super-legislature." Anyone who supports Miers because of her religion is acting based on results rather than on judicial philosophy, and they have no room to complain if a future President nominates judges solely to produce the outcomes he (or she) desires.


A Malfunctioning White House: In all the attention paid to Harriet Miers lack of qualifications to be on the Supreme Court, the process by which she became the nominee has generally been ignored. After all, it is only day two in this sad saga. Here is a long excerpt from Tom Smith's post on The Right Coast that deserves wide circulation, in addition to MSM follow up by journalists. (We bloggers, after all, can only do so much.)
The more I think about this nomination, the worse it seems. But then, I am so frequently wrong, perhaps that bodes well. Worst to me is that it is redolent of weakness. It is the sort of decision a President who feels weak would make. It is also completely conflicted. When Ms. Miers put her hat in the ring, who in the WH was supposed to say, "but, Mr. President, she's not qualified"? Anybody who torpedoed her would have to work with her in the future, which would not be fun. So the people closest to the process are immediately in a position of not being able to give candid advice — a reason not to pick close cronies in the first place. Relatedly, the WH counsel's office traditionally is the place judicial candidates are vetted. So this is like your marriage counselor telling you you should get divorced and marry her, or something. Total conflict of interest. Bush needs a lawyer or something to advise him on how to make decisions consistently with his duties of office. Oh that's right! His lawyer's the one getting nominated! Well, I'm sure her sense of law and propriety will dramatically improve once she is making unreviewable law for the whole country.

Also, it looks like a weak president captured by his staff. Maybe this is too cynical, but I fear, utterly lovely in every conceivable respect though she may be, Ms. Miers may have sensed that when W was at his most embattled was the perfect time to cash in her big chip with the guy. And with threats from the Dems on one side, and your staff using that to help themselves on the other, what are you supposed to do? And don't imagine there was a soul in the WH saying, uh, maybe we should pick someone who is, like, really qualified? I don't know if there is a species in which the babies eat the parents, some spiders maybe, but if so, they should be called creepycrawly Whitehousestaffiensis. This has that look to me. It also looks very much like a deal with the Senate Democrats, a pick off their list of acceptable candidates, which makes one wonder why Bush and Rove thought that was necessary, unless they think things are going really badly, which maybe they are. Miers and Rove probably get along famously. How very nice for them.

I have been a critic of the Yale-Harvard-Supreme Court Clerk- etc. etc. mystique before, and I do think being overly impressed by liberal establishment credentials plays into the hands of the dark side. But really. I can't help but think W's not being a lawyer makes him a bit clueless about what a Supreme Court Justice should be. It's a very demanding job, both intellectually and morally. You put someone not up to the job up there and bad things happen. Bad things happen to prose — read a Souter opinion (if you dare); bad things happen to philosophy (Kennedy) and bad things happen to law (O'Connor).
I do not expect any president to know enough about judicial philosophy to pick judges on his own. I expect him or her, however, to appoint advisers who do know about such matters and follow their advice. Either the President made this choice on the recommendation of his principal adviser (which is Harriet Miers), over her objection, or for some reason she abstained to counsel him on the merits of this particular pick in which case she could not perform her principal task which would have then fallen to her subordinates or to the President's political advisers.

In any case, there is no basis in fact to trust the President's judgment about the kind of justice she will be. None.

Update: Matthew Frank makes a similar observation this morning in NRO's Bench Memos.:

The trouble is, her own self-interest became inextricably bound up in the process of decision-making at that point. Not a good thing, and it was Bush's fault. So, to whom did he turn, if anyone, for an opinion on Miers's merits?

A Dilemma for the Democrats.--

It is becoming clear that the criticism of Harriet Miers is strong enough from both the right and the center that Democrats can oppose her nomination without paying much of a political price.

We learned in the Roberts nomination that some Democratic Senators were willing to find reasons to go back on their earlier assurances that they would support a "mainstream conservative," but not an extremist. When Bush nominated a mainstream conservative, John Roberts, fully half of Senate Democrats opposed his confirmation.

Now George Bush has nominated a weak choice for the Supreme Court, one without a strong judicial philosophy that might help her resist the pressures to "grow in office" in ways that would please the NY Times and the Washington Post.

Will Democratic Senators vote for Miers in the belief that, while she may start out as a conservative, she may eventually make the same move to the left that Justices Souter, Blackmun, and Stevens made? And, even if she doesn't, Miers may at least make the sort of move to the center that Justices O'Connor and Kennedy have made. (The fervor with which Bush asserted that Miers would not change her views after long service on the Court makes me wonder whether she promised him that she wouldn't change. But can anyone be expected to keep such a promise years from now?)

Or will Democratic Senators decide to try to stop the Miers nomination if they can? Although I think that Senate Democrats could survive the political fallout from a filibuster, in my opinion Supreme Court nominees deserve an up-or-down vote. It may take a few weeks for the politics to sort itself out, but getting some Republican defectors may be entirely possible. My best guess is that almost all Democratic Senators will at least begin by tentatively opposing Miers.

Harriet Miers: Some Undistinguished Writing.--

I just read a series of excerpts collected by Time Magazine from Harriet Miers' article in the 1992 Texas Lawyer.

(In the comments below, perhaps someone can link a full copy. [UPDATE: Here it is.] I want to see if Time slyly picked out the worst passages, or whether (as I fear) the entire article is as painfully platitudinous as the excerpts that Time chose.)

The first Miers quotation [See the 2D UPDATE below; the error in this passage is in LEXIS's transcription--JL]:

"The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs."

What is the "freedom of liberties"? We all make typographical errors (and this may well be one [UPDATE: it is a typo; see 2D Update below]), but her writing has that airy feel of someone trying to sound important by regurgitating empty platitudes.

Time's second excerpt includes this sentence:

"Those who would choose a rule of man rather than the rule of law must not escape fitting penalty."

You get the sense that first she wrote "must not escape penalty," then thought that she needed to qualify it with the word "fitting," but she didn't realize that idiomatically this would require adding an article: "must not escape a fitting penalty." On this blog (and elsewhere), I have published many sentences as awkward as this one of Miers', but I'd like to see something that read as clearly as the articles or op-eds of my co-conspirators.

Time's third excerpt is similarly timeless:

"We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction."

I have refrained from explaining why some of Miers' sentences are awkward, but this one violates the "short-to-long principle," explained by Joseph Williams in his books on writing. For grace, Miers' list should be reordered from shorter to longer elements: "poverty, family dysfunction, the lack of education, the lack of health care (particularly mental health care), and the lack of self-esteem or hope in some segments of our society." Not every good writer does this all the time, and many good writers do this instinctually without a rule, but in these excerpts from her meager writing, Miers consistently makes poor choices. In these excerpts, Miers shows no natural skill for writing.

Time's fourth excerpt:

"We lawyers are trained in problem-solving and we have the leadership and other opportunities available to professionals in our society. The two men who died exemplified individuals devoted to their God, their families, their fellow man, their communities and their profession. Speakers in both memorial services, used the very same words: ˜Well done, good and faithful servant."

Note the incorrect comma in the last sentence [UPDATE: again, the comma is a typographical error by LEXIS] and the plodding first sentence.

To be fair, I confess that Time's fifth excerpt ends on a more eloquent note. Speaking about two violent murders, Miers wrote:

"Plain and simple, they are despicable acts —- examples of the worst nature of man. The rest of us are challenged even more to demonstrate the best."

Of course, in our prose we ALL make lots of mistakes. Further, one can't be certain that Miers actually wrote this article published under her name. An associate in her law firm may well have ghost-written it for her. Or a poor editor may have tampered with Miers' writing.

Yet if these are representative examples of Harriet Miers' writings, she will be among the least able writers to serve on the Court in recent years. In my opinion, the majority of students whom I supervise for independent senior research projects at Northwestern Law write better prose than the passages published in the Texas Lawyer under Harriet Miers' name.

The last piece that I encountered before reading the excerpts from Miers' article was Randy Barnett's op-ed on Miers. The difference in the quality of the prose between the two pieces is striking. Randy Barnett writes like a person who earns his living by expressing his reasoning in writing; Harriet Miers doesn't — though if she is confirmed, that is exactly what she will be doing for the next couple of decades. (Since 1971, Justices have left the Court at the average age of 79.5).

It has been said of Justice Blackmun that he realized his own intellectual limitations, leaving the hard job of drafting his opinions to his clerks, reserving to himself the easier task of substantively cite-checking what his clerks wrote. Unless Miers' writing has improved since 1992 (and it may well have), she might take a leaf from Justice Blackmun's book.

UPDATE: 1. In the comments, some argue that my suggestion that an Associate or clerk at Miers' firm might have written the Texas Lawyer article is probably true. I don't know.

2. Originally, I had missed the Miers article on both Westlaw and LEXIS, but LEXIS has it (as a reader notes in comments). I would like to see a photocopy of the original (it's not on because there are enough errors in the LEXIS version that I suspect that at least part of the fault is not in Miers' writing but in the typists at LEXIS. Some of the following excerpts look more like LEXIS typos than Miers' writing to me [UPDATE: my suspicions are confirmed in the 2D Update below]:

Many times the push for such precautions is aimed at the criminal courts, but as the Fort Worth case shows, but civil courts have at least as great an interest in courthouse security. . . .

Judicial appropriations for the State of Texas represent 0.32 percent of the total state appropriations. While money cannot solve all the problems, and many times increased expenditure is a simple but wrong approach to solving problems and face, adequate personnel, space and equipment for the judiciary in Texas are essential if we expect the third branch of government to do its job.

Until I see a copy of the published article, I think it is likely that at least some of the errors I criticized in my earlier post were errors of the LEXIS typists. Certainly, the two errors listed in this update look like typists' errors [UPDATE: They are.]

2D UPDATE: In two comments below, Virginia Postrel helpfully reports on what she found in checking the excerpts above against a library microfiche copy of Harriet Miers' 1992 article. Although I raised the possibility of typos in my original post, by the time of my first update, I thought that some of the worst errors must be LEXIS typos: "I think it is likely that at least some of the errors I criticized in my earlier post were errors of the LEXIS typists. Certainly, the two errors listed in this update look like typists' errors."

Postrel points out that the first error is NOT in the original:

I have the original article, courtesy of microfiche in the SMU Law library. The first quote is wrong. The correct quotation is:

"Those precious liberties include free speech, freedom to assemble, freedom of religion, access to public places, the right to bear arms and freedom from constant surveillance."

The rest of the quotations [in my original post] are correct. She writes like a competent corporate executive, maybe a p.r. person, avoiding controversy while still managing to make something of an argument.
In her second comment, Postrel checks the errors noted in my first update, errors that looked to me like LEXIS typos. Postrel wrote:

I forgot to check the update. There are indeed typos in both quotes. The originals read:

Many times the push for such precautions is aimed at the criminal courts, but as the Fort Worth case shows, the civil courts have at least as great an interest in courthouse security. . . .


Judicial appropriations for the State of Texas represent 0.32 percent of the total state appropriations. While money cannot solve all the problems, and many times increased expenditure is a simple but wrong approach to solving problems we face, adequate personnel, space and equipment for the judiciary in Texas are essential if we expect the third branch of government to do its job.

Thanks to Virginia for clearing this up.

OUCH: George Will has a rather harsh piece on Harriett Miers in the Wednesday Washington Post.
Harriet Miers and the Meaning of Cronyism--

I want to endorse the thoughts of my co-conspirator Randy Barnett expressed in the Wall Street Journal: "Cronyism."

At the time of the Roberts appointment, I thought that one thing that endeared Roberts to Bush was his likely support for government power in the War Against Terror. That reason looks to be much more significant as an explanation for the Miers appointment.

It seems to me that there are two sorts and motivations for cronyism: one kind of cronyism is to do favors for friends and relatives to help them; the second kind of cronyism is to favor friends or relatives, not to help them, but because you think they would do a better job than others. When John Kennedy chose his brother Bobby to be Attorney General or Lyndon Johnson chose his close friend and former lawyer, the eminent Abe Fortas, to be an Associate Justice, these were not done primarily as favors to these men, but rather because Presidents Kennedy and Johnson wanted people they trusted in top government positions.

I suspect that George Bush's cronyism is of the second sort. I suspect that Bush is under no illusions that Harriet Miers is the best qualified person (or woman) for the job, but she may well be the one that he trusts most strongly to do a good job on the issue he cares most about, the War on Terror.

That said, it's still cronyism.

Unless Miers performs extraordinarily well during the Senate hearings, I am opposed to her nomination.


Tuesday, October 4, 2005

This is Downright Embarrassing (Miers):

First, read Steve Bainbridge's devastating critique of the Miers nomination. You back? Good!

New York Times:

To persuade the right to embrace Ms. Miers's selection despite her lack of a clear record on social issues, representatives of the White House put Justice Hecht on at least one conference call with influential social conservative organizers on Monday to talk about her faith and character.

Some evangelical Protestants were heralding the possibility that one of their own would have a seat on the court after decades of complaining that their brand of Christianity met condescension and exclusion from the American establishment.

In an interview Tuesday on the televangelist Pat Robertson's "700 Club," Jay Sekulow, chief counsel of the Christian conservative American Center for Law and Justice, said Ms. Miers would be the first evangelical Protestant on the court since the 1930's. "So this is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court," Mr. Sekulow said.

(1) Is the evangelical right, who along with the rest of the conservative coalition, swore "no new Souters" (i.e., no supporting a Supreme Court nominee based on personal assurances of the nominee's constitutional views, without supporting evidence) going to allow itself to be suckered by identity politics of the basest sort? (2) Shame on the White House for engaging in such identity politics. Racial identity politics is corrosive enough. Do we need to add religious identity politics to the mix? Especially for the Supreme Court? This is supposed to be a Supreme Court nomination, not some weird American variant of the government-appointed Chief Rabbi of Israel (which is, in its own way, appalling). (3) Thus far, beyond the president's personal endorsement and her loyalty to him, all that supporters of Miers have been able to come up with is that she's an evangelical Christian and personally pro-life. Are conservatives, religious or not, supposed to support a nominee for a lifetime appointment on the Supreme Court solely on the basis of her personal faith? Why not just appoint Mario Cuomo? By all indications, from what I recall, when Clinton was thinking of nominating him, he was a religious Catholic who was sincerely personally opposed to abortion. Heck, "religious Christian and anti-abortion" would almost certainly have described William Brennan when he was appointed to the Supreme Court. (4) Conservatives, including religiously motivated conservatives, should be looking well-beyond Miers' views on "social issues" to her views of the Constitution. This is true even for those who don't actually care about the Constitution, but only about social issues. After all, Miers can easily be on the court for twenty or more years (her mother is 93!) Who knows what issues will arise in the time span? Eventually, her views on current social issues will be largely irrelevant, and her views on the Constitution will be what matters as future disputes arise.

I'm trying to reserve judgment here, but I don't think I can anymore. The president has appointed someone with at least the minimum qualifications to be a justice, but that's about all. He's broken his promise to appoint someone in the mold of Thomas and Scalia, and not because he's found someone equally talented but with a somewhat different conservative judicial philosophy, such as Posner or, less extreme, Kozinski. Rather, he's appointed a crony, whose record of political donations smacks of opportunism (or "pragmatism") more than anything else (a Democrat when they controlled Texas, a Republican when control shifted), and whose great moment of political "courage," according to her supporters, involved asking the ABA to stay neutral on abortion. This, apparently, makes her a regular Joan of Arc. As noted previously, she may have been appointed because she's likely to uphold Executive power, which will be a great gift to President Hillary Clinton, whose ascension is becoming more and more likely due to the Bush Administration's incompetence.

And, to top it all off,the president sends his minions to drum up support based on her personal religious philosophy. I'm sure Miers' didn't ask the White House to trumpet her religious views, and, given her reported modesty and shyness, it's entirely possible that she's mortified. So without placing any blame on Ms. Miers, whose only done what she's been asked, and save perhaps the Powell United Nations speech, and the blatant lies about the cost of the Medicare drug law, this has to be the most embarrassing episode of the entire Bush Administration.

A Forthcoming Study on Sexual Happiness in People 40-80.--

Tonight I went to the University of Chicago's Rational Choice Workshop, run by Gary Becker and Dick Posner. The eminent sociologist Ed Laumann presented a paper on a survey he led on the sexual practices and opinions of 27,500 people aged 40-80 in 29 countries around the world. The paper was on subjective sexual satisfaction.

Laumann and his co-authors found that sexual satisfaction is higher in countries where gender roles are more equal, but that men report slightly higher satisfaction than women.

The paper can be downloaded here.

More Personal Profile of Harriett Miers: The New York Times takes a look.
Posner v. Stone on the Patriot Act, Sort Of: Over at the Legal Affairs Debate Club, Richard Posner and Geoffrey Stone are debating the Patriot Act. Of course, like most debates over the Patriot Act, very little of it is actually about the Act itself. Most of the discussion is about the abstract question of how societies should respond to threats like terrorism; so far only one section of the law Congress passed has been mentioned. But I suppose I'm idiosyncratic in my belief that the Patriot Act is an actual piece of legislation. Hat tip: U of C Faculty Blog.
Miers: Mind the Gap?

Putting together the points about Miers being close to Bush and the complaints about her lack of a public record on the subjects with which the Supreme Court deals, what is striking here is the gap between what Bush knows about her and what the public knows about her. We are beyond reading tea leaves when we are dissecting how many cookies she baked for her church, and what that tells us about the likelihood that she will find displays of the ten commandments constitutional. Insofar as Souter was a "stealth" candidate, it isn't as if George H.W. Bush knew him much better than the rest of us could if we read his opinions. White's views were largely unknown to the public, but he was not particularly intimate with Kennedy. My guess is that the last nominee for whom the gap (between the President's private knowledge and the public's available knowledge) was really large was Abe Fortas — although even there the gap may have been smaller, in that he had taken positions on a number of important public matters.

So, unless we learn significantly more about Miers in the coming weeks — a definite possibility, but by no means a certainty — it seems to me that one's assessment of her jurisprudential views will largely be a function of one's assessment of: A) Bush's success in determining how she will likely vote on issues that are important to him; B) What issues Bush regards as important; and C) Whether one agrees with Bush's position on those issues.

For Bush supporters to support her on these grounds (i.e., her jurisprudential views), it seems to me that one has to have some confidence in all three. That means that you need to have confidence in Bush's ability to judge how she will vote (maybe she's told him in so many words, but probably not; still, there might be enough for him to make educated guesses with some confidence). And you need to be confident that he regards as important what you regard as important. As David Bernstein noted, it may be that Bush is choosing her because he really cares about executive power and the war on terror, and he knows where she'll come out on those issues, but that he isn't prioritizing issues that are central to his political base. For Bush opponents, by contrast, one needs either to have significant doubts about Bush's success in predicting her votes or to believe that what he regards as important is a relatively small universe.

This should not necessarily determine one's support for or opposition to her — perhaps she should be opposed on grounds of cronyism or the unimpressiveness of her background, or perhaps she should be supported on the grounds that the alternatives to her are likely to be worse — but it does seem to be an important calculus in assessing her likely jurisprudential views.

Dark Skies Bleg:

I am finishing a monograph on "dark skies" legislation, which restricts some night-time uses of electricity, in order to facilitate star-gazing. I would like to ask some questions to someone who is familiar with, and generally supportive of, such laws, and who also has some ideas for distinguishing reasonable dark skies regulations from unreasonable ones. If you would like, I can credit you in footnote 1 of the monograph. If you'd like to provide some guidance, please contact me via the e-mail link at the bottom of the left-hand frame on my website, Alternatively, if you have thoughts about the merits of particular dark skies regulations, feel free to leave them in the comments.

So What Is Really Important in a Justice, and How Do We Measure a Nominee Against Those Requirements?

Here's a fairly obvious starter list that we'd like to see in a nominee (let's set aside the attribute many of us especially want, which is a willingness to decide cases the way we think they should be decided, since it's hard to come up with a real consensus about how that is to be implemented):

  1. Intelligence.

  2. Ethics.

  3. Thoughtfulness.

  4. Willingness to consider the possibility that one is wrong.

  5. Ability to work effectively on a multi-member Court.

  6. Ability to set aside one's personal annoyance with or hostility to particular colleagues, lawyers, or litigants, even when the annoyance or hostility is justified.

  7. Understanding of the world and of the likely practical effects of various legal rules.

  8. Clarity and precision of thinking, and ability to write clearly and effectively (or to edit subordinates' work well).

  9. Creativity in thinking up (within the permissible legal boundaries) solutions that accomplish the goals that one is (properly) trying to accomplish, for instance in crafting a common-law rule, or an interpretation of a statute that's consistent with the text yet likely to accomplish the statutory goals.

  10. Willingness to subordinate one's views to the legal commands. (I recognize that there may well be disagreement about the terms of those legal commands -- for instance, how important text or original meaning may be -- but I think most observers would agree that once a judge concludes that some legal rule is binding, the he should comply with it even if he doesn't like the result.)

  11. Willingness to work hard.

  12. Ability to work efficiently.

  13. Good judgment in what to delegate to subordinates.

I'm sure there are other items, both obvious and nonobvious, that I missed.

But my point here isn't really to look for an exhaustive list, or to rank the items. Rather, it's to ask a few related questions: If we come up with a fairly well-understood list, how do we judge nominees -- and of course right now we're talking about Harriet Miers -- against it? If the President's explanation for selecting someone he knows very well is that he has a much better sense of how she fares in these categories than he would about a stranger (even an illustrious stranger), should we be impressed by this explanation or dismiss it? Are some of these attributes more important than they at first appear to many, and others less important?

Miers on Same-Sex Issues: The New York Blade has a very interesting article describing a 1989 meeting between Harriett Miers and a gay rights group when Miers was running for Dallas City Council. An excerpt:
  Former Lesbian/Gay Political Coalition member Marc Lerro, a D.C. resident, said he recalls that Miers stated in the questionnaire [sent to her by the group] that she would not support a bill to repeal the Texas sodomy law, saying the matter would not come before the Dallas City Council.
  Lerro and Young said that although the group did not endorse Miers, members believed she made a positive gesture by completing the questionnaire and agreeing to meet with them.
  "She was not hostile nor did she come across as some kind of right-wing ideologue," said Young, a Dallas software engineer and a member of the Business Council of the Human Rights Campaign, a national gay political group.
  In Miers' meeting with members of the gay group, Lerro said Miers stated that she opposed abortion, a response that prompted the group to eliminate her from contention for obtaining the group’s endorsement.
  Lerro said he endorsed Miers for the Council post, saying he recalls that she expressed general support for equal rights for gays and indicated she opposed discrimination based on sexual orientation.
  Link via FrontBurner, a local Dallas blog.
That Unclean Piglet:

From Mark Steyn:

Dudley Metropolitan Borough Council (Tory-controlled) has now announced that, following a complaint by a Muslim employee, all work pictures and knick-knacks of novelty pigs and "pig-related items" will be banned. Among the verboten items is one employee's box of tissues, because it features a representation of Winnie the Pooh and Piglet. And, as we know, Muslims regard pigs as "unclean", even an anthropomorphised cartoon pig wearing a scarf and a bright, colourful singlet.

Cllr Mahbubur Rahman is in favour of the blanket pig crackdown. "It is a good thing, it is a tolerance and acceptance of their beliefs and understanding," he said. That's all, folks, as Porky Pig used to stammer at the end of Looney Tunes. Just a little helpful proscription in the interests of tolerance and acceptance.

And where's the harm in that? As Pastor Niemöller said, first they came for Piglet and I did not speak out because I was not a Disney character and, if I was, I'm more of an Eeyore.

Steyn's piece is much worth reading, partly because it makes some important substantive points (assuming that it is factually accurate, though I have no reason to doubt that) and partly because his work is always so readable. But I think it highlights a broader point, too.

It's good manners, good business, and good for society when people make some accommodations of others' preferences. If something offends your neighbors or especially your customers — or, if you run a government institution, your citizens — it often makes sense to see whether you can easily reduce that offense. We do it all the time within our own culture: An advertiser will rarely put up ads that offend many of its potential customers; many people refrain from swearing around those who dislike it; when a few customers of software that I wrote objected to a program that I had written and called GOD (with no blasphemous intentions on my part, I assured you), we were happy to make special tapes that didn't contain the program. It makes sense that we do this with regard to customers or citizens who don't share some aspects of the majority's culture.

But accommodation has to be a two-way street: If something that others do offends you (especially with no intention on their part), it often makes sense to see whether you can reduce your own offense. Again, people in the cultural mainstream have often learned this, and people in minority groups should learn it, too. Are you really that offended by "pig-related items" put up by the nonbelievers? Can you perhaps live with them? Can you consider that demands that others change their innocently intended practices, especially ones that they may see as fondly recalled aspects of their own culture, might themselves come across as offensive?

Moreover, if failure to accommodate minority cultures' preferences is generally condemned as insensitivity, and people feel obligated to accommodate such preferences, the minority group members may sometimes end up feeling more offended and alienated rather than less. If I think accommodation is a favor that I'm asking — especially when that accommodation rests in stopping others from posting materials that they like to post — then if someone politely says "sorry, no," I might often be annoyed but not deeply wounded. But if I'm told that it's my right (whether legal or moral), and failure to accommodate is a violation of my rights, then each such polite "sorry, no" becomes an outright insult, which should make feel quite offended and wronged. Conversely, if I'm told that I'm entitled to get others to stop posting materials that offend me, and if they go along with my demands, then my demands may well constantly grow, as my friends and I discover more and more things that annoy us, and that aren't the way that they would be if we were the majority.

None of this resolves particular controversies, of course. Should people who like to wear revealing clothes dress a little less scantily to accommodate the sensibilities of some religiously conservative classmates, coworkers, neighbors, and the like (much as people often modify their dress to accommodate the sensibilities of others in other situations)? Should civic institutions schedule their events so that people who observe the Sabbath, or celebrate various other holidays, can take advantage of them? Should they accommodate their schedule of celebrations so they don't fall in times that are days of mourning for some small but significant part of the community? Should they omit symbols or references that, while well-intentioned, may be seen as blasphemous by some? There's no simple answer that covers all this.

But I am pretty sure that it would be a mistake to have a rule — or even a strong presumption — under which an "I'm offended" by some observers imposes an obligation on others to accommodate the offended. Such a rule may be aimed at increasing social harmony, and decreasing offense; but in many cases, it may actually increase both social friction and felt offense.

Thanks to Clayton Cramer for the pointer.

The Miers Paper Trail: I've been trying to track down the writings and speeches of Harriet Miers. Miers wrote two articles for Texas Lawyer magazine (in 1992 and 2000), and she also wrote a one-page piece on multistate practice for the West Virginia Lawyer magazine in 2000. Miers also gave the commencement address at Pepperdine this past May, although I haven't found a transcript or video. I'm hearing that she has given a number of speeches within the last few years, too. If anyone knows of other materials, please let us know about it in the comment section.
"A Spirit of Favoritism": My Wall Street Journal essay, Cronyism, is available (for free) on Here is the concluding paragraph:
Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution's limits on government power. Does anything in her record suggest that Harriet Miers will be that sort of justice? We do not need to wait for Senate hearings to answer this question. What hearings will tell us, however, is whether the Senate, too, will succumb, in Hamilton's words, to "a spirit of favoritism."
(Comments are activated, but please confine posts to matters of substance—both pro and con—related to this post. Crudities will be removed.)

Monday, October 3, 2005

Shana Tova (Happy New Year)

to our Jewish readers (and to my Jewish co-conspirators!)

Miers on the Right to Keep and Bear Arms:

The New Republic's fine &c blog points to a 1992 article she wrote for the Texas Lawyer. In the article, she points to three infamous multiple homicides in Texas: the 1966 Texas Tower Shooting, in which a man climbed the clock tower at the University of Texas, and shot 14 people. (He was finally stopped when two policemen and a civilian rushed the building.) The second was the 1991 Killeen massacre, where a man entered a Luby's Cafeteria, and methodically slaughtered 23 unarmed people. (The incident played a major role in Texas rescinding its ban on carrying concealed handguns, and enacting a Shall Issue permit law.) The third incident in Miers' article had taken place recently; a man murdered two judges and two lawyers in a Fort Worth courthouse.

"How does a free society prevent" such crimes, she asked. She then explained:

The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.
Miers, however, rejected the notion that "precious liberties", including "the right to bear arms," should be sacrificed in the name of crime prevention. Quite obviously, she was referring to the "right to bear arms" as an individual right.

It's technically possible that she was referring only to the Texas Constitutional arms right, which clearly is individual, rather than to the Second Amendment. However, the context of the quote does not seem so constricted, and even to describe the Texas right a precious liberty says a good deal about Ms. Miers' thinking.

She then explained the true solution to crime:
We will be successful in solving our massive crime problems only when we attack the root causes....

We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction.

I agree, and have argued in the Barry Law Review that much-improved pre-school programs for at-risk boys would be far more effective, in the long run, at reducing violent crime than would gun control or even more draconian "conservative" federal criminal laws.

As far as I know, you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense. (I'll fill in the details on him in a subsquent post.) And even Brandeis had not specicially mentioned "the right to bear arms" as one of the "precious liberties" that "We are not willing to sacrifice."

Many web writers have raised legitimate questions about Miers. In terms of the right to arms, however, Americans who love their precious liberties need not hope about the unknown, but need only expect her to be consistent with what she has already said.

UPDATE: Just to clarify a few points: 1. It's possible that some nominee in-between Brandeis and Miers said something nice about the right to arms or self-defense, prior to his or her nomination. As elective candidates, Black, Warren, or O'Connor might be especially likely to have done so. It's just that, among the pro-RKBA community, there are no well-known quotes from them, as there are from Brandeis and Miers. 2. Everybody makes typos, but I agree that the quantity of errors in Miers' short article is troubling. 3. Clearly there were other potential nominees--including Pryor, Brown, and Jones--who have a more established record on the right to arms, and whose record on that issue is clearly part of a coherent judicial philosophy. 4. Given Miers' hero-worship of Bush, it is fair to wonder how often--if ever--she would rule against a position argued by Bush's Solicitor General. The current Bush policy is to defend all federal guns laws (including the D.C. handgun prohibition)--not by denying that the Second Amendment is an individual right, but by arguing that the civil plaintiffs do not have standing to challenge the law unless they are actually criminally prosecuted. That said, Miers is still very likely an improvement over O'Connor, who in United States v. Staples (1994)joined Justice O'Connor's concurrence regarding "the 'widespread lawful gun ownership' Congress and the States have allowed to persist in this country" and "the notable lack of comprehensive regulation." (emphasis added).

My Take on Miers: I have an op-ed scheduled to run in tomorrow's Wall Street Journal. I am told it will also be available on the free-to-access I will provide a link to it when it comes on line.

I wrote the essay over the past few hours without reading anything on the blogosphere, so it reflects my wholly unvarnished opinion. Good thing I did. Now that I have started perusing the blogs, I see that it would have much been harder to write after reading everyone else's reaction.
Andrew Cohen on Miers:

CBS News Legal Affairs correspondent Andrew Cohen predicts a nasty confirmation battle for Miers. (HT: Jason Sorens in our Comments).

A Quick Response to Todd: Todd writes below:
While they may both turn out to be perfectly fine Justices, both Roberts and Miers appear to be both uninspired and uninspiring in terms of providing intellectual leadership on the Court. The Administration seems to be narrowly obsessed with winning minor tactical victories (here, an easy confirmation of a stealth candidate) while consistently failing to follow-through with meaningful long-term strategic victories (an opportunity to change the legal culture).
  We don't know yet if this is true for Harriett Miers, but I can't disagree more strongly with Todd about the case of John Roberts. I think John Roberts is ideally suited to provide intellectual leadership on the Court; I think his work is going to have a profound effect on the legal profession and will exert a significant influence on trends in legal thought. Roberts believes deeply in the legal craft and in legal reasoning, and I think his leadership is going to impose a discipline on the work of the Court that will prove highly influential in the legal culture at large. The likelihood of that kind of impact is exactly what made Roberts such an inspired choice.
The Court and the Legal Culture:

Orin rounds up the conservative response to Miers. The chronic complaint, and one that I share, is that this amounts to a squandered opportunity, one that is heightened by the fact that this follows on the heels of the Roberts appointment. So allow me a quick comment on my concerns about the Roberts-Miers ticket.

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. Thomas and Scalia have been doing the same thing for some time now, with their view of the law. This is, of course, precisely why Bork was taken down as well. Rehnquist, by contrast, may have changed the voting patterns of the Court but did not change the legal culture through intellectual leadership. Even worse, pick someone who supposedly "votes right" but has no developed judicial philosophy, and soon you have someone who doesn't even do that (Blackmun, Souter, etc.).

Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right." But neither of them appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture. I suspect that this is the source of the conservative outrage about Miers. In addition, historically those who come to the Court without a clear jurisprudential philosophy almost always end up moving left, which may add still further to the concern about her apparent lack of intellectual heft. Simply because she has stood up to the political criticism that she has received working in the White House does not mean that she will be able to withstand the intellectual criticism that she will receive. Writing a persuasive Supreme Court opinion that will hold a majority is a whole different ball game from stonewalling the Washington Post reporters.

Put another way, looking at Miers resume, I can see nothing in her career or her resume to suggest that she has ever thought in any meaningful manner about larger questions of law or judicial philosophy. She went to a perfectly good law school, but during an era where it is hard to believe that she was thinking much about larger questions of law. She had a distinguished legal career, but from all appearances, one in which she would have rarely had the opportunity or inclination to think seriously about the Court or its role in American society. In private practice, she proved herself most distinguished, it appears as an administrator and manager at her law firm--useful skills, but different from those needed on the Court. Her practice at the various iterations of the Lidell firm in Texas appears to be a conventional trial litigation practice. Finally, her primary responsibility during her time working in Washington has been as a Staff Secretary--again doing management and administration, not intellectual heavy-lifting. Or, as we say in these parts, doing "process" rather than substance (some might say less charitably, "a glorified paper-pusher"). There is simply nothing in her background to suggest that she will exert any intellectual leadership inside or outside the Court. At least Roberts, as a lawyer was engaged in the big intellectual issues of the day, even if his judicial philosophy is more incremental than systematic.

At the very least, she will have a heck of a lot of learning to do and will be forced, at the age of 60, to think about many, many difficult issues that she has never confronted in her entire life. I suppose it is possible for a 60 year old to start what amounts to a completely new career and learn a completely new set of skills for the first time, but.... She hasn't even been practicing law for many, many years, but rather serving in either policy or administrative roles. At the very least, if she is to ever exercise any intellectual leadership of the there is going to be a substantial learning curve that suggests that it will be several years before she has anything meaningful to say. This in contrast to Luttig, McConnell, Brown, Jones, Batchelder--well, at least 100 other people who are at least as well-qualified, but who would not need on-the-job training. It is really quite difficult to imagine that she will ever be in a position to exercise any substantial intellectual leadership of the Court.

These appointments thus seem to confirm a common criticism of this President--that he is uninterested in ideas and interested only in power. While they may both turn out to be perfectly fine Justices, both Roberts and Miers appear to be both uninspired and uninspiring in terms of providing intellectual leadership on the Court. The Administration seems to be narrowly obsessed with winning minor tactical victories (here, an easy confirmation of a stealth candidate) while consistently failing to follow-through with meaningful long-term strategic victories (an opportunity to change the legal culture).

In the end, of course, the lack of a strategic vision means that even the tactical victories tend to be reversed (for instance, temporary tax cuts will likely fall victim to the inability to control spending). As Reagan understood, you have to first have the long-term strategic vision in mind so that you know when to make tactical compromises. Ideas are the long-run motivating force of history. Tactics without strategy, by contrast, leaves you rudderless.

Picking someone who "votes right" without exercising intellectual leadership is a squandered opportunity. Even worse, if you try to pick someone who votes right without knowing why, soon you may have neither.


I have been rightly rebuked by Orin and others for seeming unduly harsh on Roberts, and I certainly did not mean to imply that Miers and Roberts are of similar experience or ability. Let me make this clear--Miers is no Roberts, and I recognize that. What I was trying to say in the first post, perhaps inelegantly, is that although Roberts is impeccably qualified and brilliant, his judicial philosophy remains somewhat of a blank slate and conservative enthusiasm was somewhat muted, and that most seem to believe he would be more in the Rehnquist mold than the Scalia/Thomas mold. The implicit deal, as conservatives seem to understand it, was to go along with Roberts for Chief, who seems to be excellent but is not exciting among conservative stalwarts, and then the second nominee would be in the McConnell/Jones/Luttig mode.

So, I simply meant to indicate that I think the backdrop of the relatively temperate enthusiasm among conservatives for Roberts on the grounds that I argued, may help to explain the extreme conservative frustration with Miers. I certainly did not mean to imply in any way that Roberts and Miers were comparable. My apologies for the lack of clarity.

Dick Cheney Defends Miers Pick: Transcript here.
Daily Kos on the Miers Nomination: An excerpt:
  I reserve the right to change my mind, but Miers' biggest sin, at this early juncture, is her allegiance to Bush. That her appointment is an act of cronyism is without a doubt, but if that's the price of admission to another Souter or moderate justice, I'm willing to pay it.
  . . .
  [M]y early sense is that this is already a victory -- both politically and judicially -- for Democrats. In fact, it should be great fund watching conservatives go after Bush. He may actually break that 39-40 floor in the polls, given he's just pissed off the very people who have propped up his failed presidency.
The Website Formerly Known as Reading the reaction to the Miers nominatiom at, I thought I would point out that the following URLs are still available:
White Meets Powell Meets O'Connor?

I know little about Harriet Miers, beyond what I read in the papers (the electrons?) this morning. But I was struck by how her career path -- not necessarily her views, which I don't know -- fits more the paths of Justices White (especially) and Powell than of some more recent Justices. (There's also of course an element of Justice O'Connor, in the sense that both were among the first women to have risen to important positions in their civic and professional communities, Justice O'Connor in Arizona law and politics, and Harriet Miers in Dallas legal practice and in the Texas bar; but the analogy to White, and, to some extent, Powell, I think, is in many ways stronger.)

White and Powell, like Miers, came to the bench from lawyering, not from judging or the academy. Powell, like Miers, made his reputation chiefly in private practice, some amount of public service, and bar association leadership. White, like Miers, served in Washington following a substantial career in private practice (though Miers' was longer, since she is a decade and a half older than White was when he was nominated). White, like Miers, came to Washington after working on the presidential campaign, and had known the President before even before the campaign. My sense is that he was appointed both to the Administration and to the bench in large part because he enjoyed the President's personal confidence.

And these items, I think, fit a pattern: During that era and before -- though not as much since the Stevens appointment in 1975 -- Justices were often drawn from among practicing lawyers who had made their reputations as lawyers; and, as lawyers, they were more often likely to have developed relationships with the President who appointed them, or at least the President's team. Chief Justice Roberts in some measure fits that profile as well, though of course he was an inside-the-Beltway lawyer as opposed to Miers, Powell, O'Connor, and to a smaller extent White, who built their careers in their own states. They were not academics or judges; but the current heavy loading of ex-academics and ex-judges is a relatively modern phenomenon, not a settled long-term tradition.

Naturally, one can tell little from this pattern about a nominee's quality -- White, Powell, and O'Connor have been highly regarded, but not so, for instance, with Arthur Goldberg or Abe Fortas -- or about the nominee's likely ideology. It's not even clear that coming from lawyering would make the nominee more particularistic and less given to applying broader ideological principles; White, Powell, and O'Connor can probably be characterized as relatively particularistically minded Justices, but so could, for instance, Justice Breyer. Conversely, one of the most ideologically minded Justices since World War II, Justices Hugo Black, had been a Senator, not a judge or an academic.

My point is simply that when one is looking at Miers' career and credentials, it may be helpful to avoid comparing her to the current crop of Justices -- the natural tendency whenever one is considering a new nominee -- but rather to nominees who come from a different, but just as historically well established, mold.

Liberal Advocacy Groups Quiet So Far: While conservative blogs have been quite critical of the Miers nomination, the People for the American Way and the Alliance of Justice are being uncharacteristically quiet so far. The homepage for the Alliance for Justice doesn't even mention the Miers nomination, at least as of 12:30. The homepage for PFAW has a short and neutral call for thorough hearings:
  With no past judicial experience for the senators to consider, the burden will be on Miers to be forthright with the Senate and the American people. She must outline her judicial philosophy and provide direct answers to questions about how – and whether – she will uphold fundamental rights, liberties and legal protections on which Americans rely.
Reactions from the Conservative Blogosphere: I just took a quick tour of conservative blogs for reaction to the Miers nomination. A few excerpts:  

  Feddie at Southern Appeal:
  I am done with President Bush: Harriet Miers? Are you freakin' kidding me?!
  Can someone--anyone--make the case for Justice Miers on the merits? Seriously, this is the best the president could do?
  . . . .
  Oh, and if any of you RNC staffers are reading, you can take my name off the mailing list. I am not giving the national Republican Party another dime.
  Right Wing News:
  George Bush's decision to appoint Harriet Miers to the Supreme Court is bitterly disappointing.
  Miers is a Bush crony with no real conservative credentials, who leapfrogged legions of more deserving judges just because she was Bush's pal. She used to be Bush's staff secretary for God's sake and now she's going to the Supreme Court while people like Michael Luttig, Priscilla Owen, Janice Rogers Brown & Emilio Garza are being left on the sidelines.
  To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection.
Michelle Malkin:
  It's not just that Miers has zero judicial experience. It's that she's so transparently a crony/"diversity" pick while so many other vastly more qualified and impressive candidates went to waste. If this is President Bush's bright idea to buck up his sagging popularity--among conservatives as well as the nation at large--one wonders whom he would have picked in rosier times. Shudder.
  This nominee is a two-fer — she would not have been selected but for her gender, and she would not have been selected but for her status as a Bush crony. So instead of a 50-year old conservative experienced jurist we get a 60-year old with no judicial experience who may or may not be conservative.
  I was hoping that, because this is Bush's second term, he would thumb his nose at the diversity-mongers and appoint the best candidate. He thumbed his nose all right, but at conservatives.
  William Kristol:
I'm disappointed, depressed and demoralized.
  . . .
    I'm depressed. Roberts for O'Connor was an unambiguous improvement. Roberts for Rehnquist was an appropriate replacement. But moving Roberts over to the Rehnquist seat meant everything rode on this nomination--and that the president had to be ready to fight on constitutional grounds for a strong nominee. Apparently, he wasn't. It is very hard to avoid the conclusion that President Bush flinched from a fight on constitutional philosophy. Miers is undoubtedly a decent and competent person. But her selection will unavoidably be judged as reflecting a combination of cronyism and capitulation on the part of the president.
  We’ve got a lot to learn about SCOTUS nominee Harriet Miers. To hear the White House tell us, "With her distinguished career and extensive community involvement, Ms. Miers would bring a wealth of personal experience and diversity to the Supreme Court."
  Diversity. Sure she does. In fact, she gives money to Republicans *and* Democrats.
  Mr. President, you’ve got some explaining to do. And please remember - we’ve been defending you these five years because of this moment.
  Mark Levin at Bench Memos:
  The president and his advisors missed a truly historic opportunity to communicate with the American people about their government, the role of all three branches of the federal system, and the proper function of the judiciary. More importantly, they have failed to help the nation return to the equipoise of our constitutional system. And the current justices whose arrogance knows no bounds will be emboldened by this selection. They will see it as affirmation of their "extra-constitutionalism." The president flinched. Some have compared have compared profligate spending to Franklin Roosevelt's New Deal. But no one will accuse him of FDR's boldness when it comes to the Supreme Court.
  If people are disappointed, they have every reason to be.
  Professor Bainbridge:
  I'm appalled.
  . . .
  . . . This appointment reeks of cronyism, which along with prideful arrogance seems to be the besetting sin of the Bush presidency. At this point, I see no reason - none, nada, zilch - for conservatives who care about the courts to lift a finger to support this candidate.
  Some bloggers are more positive, to be sure, but a surprising number aren't.

NY Times on Katrina and Bankruptcy Reform:

The NY Times has another poorly-reasoned and sloppy editorial this morning criticizing the bankruptcy reform legislation, this time using Hurricane Katrina as the hook. The basic thrust is that in some unspecified way, the events of Hurricane Katrina should cause Congress to rethink the bankruptcy reform legislation.

And I do mean "unspecified"--the Editorial does not provide a single scintilla of evidence that the bankruptcy reform legislation would prevent any person affected by the hurricane from getting bankruptcy relief. None. The legislation simply requires high-income filers who can repay some or all of their debts to do so as a condition for filing bankruptcy. If a person has lost his job and income because of the hurricane, then the legislation permits that person to file bankruptcy just like under the current rules. The means-testing provisions of the legislation specifically allow for "special circumstances" that mean that those provisions of the legislation should not apply to a given bankruptcy filer--clearly the destruction of a person's house and job easily fit within those provisions of the legislation. Every relevant provision of which I am aware affords bankruptcy judges discretion to take into account circumstances that might arise in cases occasioned by Katrina. Although some potential problems have been identified (such as the question of where a person can file bankruptcy) these problems are not the result of the reform legislation at all. The NY Times makes no mention of any of this, just wrapping its charges in hoary and misleading charges of special interest politics and vague accusations.

Omitted from the Times's snarky editorial is the fact that Congressman Sensenbrenner, which the editorial singles out for special criticism, explained specifically why he thinks Katrina is a red herring and why the reform legislation is perfectly capable of dealing with the Katrina situation:

On the House side, Sensenbrenner has disputed the need for changes. He says lawmakers who opposed the new law and lost that fight "ought to get over it."

Backers of the bankruptcy law say it will cut down on abuse of the system by people who can afford to repay debts.

The American Bankers Association, a major backer of the law, opposes changing it for disaster victims. "We feel like the bill is flexible enough to take care of Katrina survivors," the group's spokeswoman, Laura Fisher, said Friday.

Sensenbrenner makes the same argument. He says the poorest bankruptcy filers, people who fall below the median income in their state, can wipe out their debts the same way they did before.

"For someone who is genuinely poor and down and out and doesn't have the ability to repay their debts, there is no change at all," Sensenbrenner said.

For people above the median income, the new law makes it harder to avoid debt repayment under bankruptcy. But Sensenbrenner and the bankers' association say a "special circumstance" clause in the law allows disaster victims to escape the means test, still file for bankruptcy and achieve a clean slate on their debts.

The Times misleadingly quotes Sensenbrenner saying that those who opposed the legislation should just "get over it" (the Times protests, "Sorry, Jim. We can't get over it."), but misleadingly fails to note that Sensenbrenner had quite a reasonable explanation for why the Katrina issue was a red-herring. And unlike the Times, he provides specifics to support his position.

Rather than supplying specifics, the Times seems to believe that it is enough to simply state that "most" bankruptcy filers file because of unanticipated financial hardship. Even if true, that hardly proves the point that we should continue to turn a blind eye to those who are cheating the system. "Most" people pay their taxes--does that mean we should abolish the IRS? "Most" people don't commit insurance or Medicare fraud--does that mean we shouldn't prosecute those crimes? Of course most of those who file bankruptcy are the unfortunate victims of financial mishap, which is precisely why it is crucial to preserve the fresh start for those who need it, which the reform legislation does. But that is no reason to turn a blind eye toward fraud and abuse by those who are cheating the system. Even if only 10% of bankruptcy filers are engaged in fraud (the FBI's estimate) then that means about 150,000 bankruptcy filers are committing fraud every year. I really wish that I could share the NY Times's uninformed optimism that the "honor system" for dealing with bankruptcy fraud and abuse could work. If the honor system actually worked, then we could get rid of the IRS, insurance fraud laws, etc. But experience has shown otherwise.

Nor does the Times explain how exactly the victims of Hurricane Katrina would be helped by having to pay more for goods, services, and credit, just to preserve the loopholes for opportunism and fraud under the current system. How exactly does it harm victims of Hurricane Katrina that the legislation increases the penalty for filing bankruptcy using a false or stolen Social Security Number? Or for permitting recidivists to file only once every eight years rather than every six years? Or for divorced women who no longer need to fear being sandbagged and thereby having property settlements discharged in bankruptcy? From making it more difficult for O.J. Simpson to stash money in a Florida mansion to evade his creditors? (For more, see my discussion here and here).

The NY Times can spin yarns all day about the "special interests" behind the bill (conveniently ignoring the special interests that oppose the legislation, of course) or attack Congressman Sensenbrenner's investment portfolio. None of this changes the fact that the Times has not provided a single shred of evidence to support the charge that Hurrican Katrina has anything to do with the bankruptcy reform legislation. The fact is that prudent, balanced bankruptcy laws should preserve the fresh start for those who need relief while cracking down on fraud and abuse by those who want to stick the rest of us with the bill. The NY Times has provided no evidence that Hurricane Katrina has upset this basic balance that is struck by the reform legislation.

Half-truths, ad hominem attacks, and unsupported accusations--if this is the best that the Times can come up with then maybe they really do need to just get over it.

Who Was the Last Supreme Court Justice Born in Texas?
[Puzzleblogger Kevan Choset, October 3, 2005 at 11:10am] Trackbacks
Yet Another Presidential Order:

Who is the next President in this list? (Warning: This relies on some very specific information that many of you are not aware of, so don't spend too long on it. However, that piece of information relates to something discussed on here by one of my co-bloggers three weeks ago.) (Hint: I am referring to the actual U.S. Presidents, not people with the same names as them, not aircraft carriers, not elementary schools in Nebraska — though that would be a good one — or anything else.)

  • James Madison

  • Martin Van Buren

  • James Buchanan

  • Abraham Lincoln

  • Benjamin Harrison

  • _______________

If you get it, please post the name of the missing President, but hold off on an explanation.

UPDATE: Another hint below.


Miers on the War on Terror:

David observes that Miers may have been chosen for a willingness to uphold the administration's policies in the War on Terror. I recall that when AG Gonzales was under consideration, there was much talk that he might have to recuse himself from war-related cases.

Does anyone know whether limitations would apply to Miers? Will she have to recuse herself in War on Terror cases? I don't know this area of law and practice very well, so comments are open if anyone has thought about this.

Frum on Miers:

David Frum nicely sums up my concerns about Justice-designate Miers. I encourage you to read the whole thing, I'll just excerpt a bit:

So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best?

I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated ... I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or - and more importantly - that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.

I am not saying that she is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things. Not even her closest associates on the job have no good reason to believe either of these things. In other words, we are being asked by this president to take this appointment purely on trust, without any independent reason to support it. And that is not a request conservatives can safely grant.

There have just been too many instances of seeming conservatives being sent to the high court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president, especially one backed by a 55-seat Senate majority, to take a hazard on anything other than a known quantity.

But here is what we do know: the pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements - the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard - that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is impossible to me to imagine that she can endure the anger and abuse - or resist the blandishments - that transformed, say, Anthony Kennedy into the judge he is today.

Harriett Miers?: I don't know much about Harriett Miers, but I thought I would blog a few tentative reactions to her nomination.

  First, I am quite puzzled by President Bush's choice. According to news reports, Bush had instructed his staff to "find another Roberts." But Miers seems to be the anti-Roberts. As far as I can tell, she has no particular experience or expertise in any areas of law that the Supreme Court is likely to consider in the next twenty years; she has no history of having thought deeply about the role of judges in a constitutional democracy; and she is a complete unknown among the parts of the DC legal community that will now be considering her candidacy for the Supreme Court.

  Of course, this doesn't mean that Miers can't be an excellent Supreme Court Justice. She had a reputation in Texas as a very good and very principled lawyer. And it's also true that never having been a judge isn't disqualifying: William Rehnquist had never been a judge before being confirmed to the Court in 1972. But Rehnquist was a bit different. While he hadn't served as a judge, Rehnquist had considerable experience with the issues that came before the Supreme Court prior to his nomination to be a Justice. Rehnquist was the head of DOJ's Office of Legal Counsel at the time of his nomination, and was himself a former law clerk to Justice Jackson.

  Another thought is that, if Miers is confirmed, it seems quite possible that the effect of George W. Bush's two Supreme Court picks will be to retain the basic balance of the Supreme Court. Despite all the hullaballoo about the Court shifting to the right, the basic direction of the Court may remain "as is." It's hard to predict this, of course, as I have no idea how Miers would vote. But it seems plausible to me that Roberts will be a slightly more liberal version of Rehnquist, and Miers will be (if confirmed) a slightly more conservative version of O'Connor. The net result would be little change in the basic direction of the Court.

  In any event, all of this is very tentative. I don't know much about Harriett Miers, so I'll be learning more about her over the next few days just like everyone else.
Justice Rufus Peckham:

Perhaps no Supreme Court Justice has been caricatured as unfairly as Justice Rufus Peckham, author of Lochner v. New York, among other opinions. Consider the closing lines of the Peckham biography on

Peckham took as his mission the separation of state powers from national powers and the separation of all government from individual rights. His was a daunting task, for as his colleague, Oliver Wendell Holmes observed, the major premise of Peckham's jurisprudence was "God damn it." Peckham wrote frequently while he was on the bench but modern students of constitutional law find his reasoning "unfathomable" and the results reached by that reasoning "insupportable."

I was asked to author a Peckham biography for a forthcoming reference book, and managed to write something a bit more nuanced:

Born in Albany, New York, Peckham was the son of Rufus Peckham, Sr., a prominent Albany attorney, politician, and judge. After being admitted to the bar in 1859, Peckham practiced law with his father’s firm Peckham was active in upstate New York Democatic politics, aligning himself with anti-Tammany forces. Through his political activities, Peckham became friendly with important New York Democrats, most importantly Grover Cleveland. In 1883, Peckham won a trial court seat on the New York Supreme Court. In 1886, he was elected to a seat on the New York Court of Appeals.

Peckham proved a reliable foe of the nascent regulatory state. See, for example, Peckham's influential opinion in People v. Gilson, 109 N.Y. 389 (1888). His opinions arguing in favor of limited government power to regulate the economy combined a Jacksonian hostility to "class legislation"; a classical liberal natural rights philosophy; sophisticated political-economic analysis; and a bold willingness to disregard common law doctrines in favor of what Peckham considered more modern and liberty-enhancing ideas. In People v. Budd, 22 N.E. 670 (N.Y. 1889), and People ex rel. Annan v. Walsh, 22 N.E. 682, 687 (N.Y. 1889), Peckham dissented from majority opinions upholding the power of the state to fix maximum charges for grain elevators. Peckham attacked the longstanding common law doctrine, consitutionalized by the United States Supreme Court, that states may regulate prices charged by "businesses affected with a public interest." Peckham spoke of "the absolute liberty of the individual to contract regarding his own property," but he also provided a penetrating critique of the view that grain rate regulation served the public interest.

President Cleveland appointed Peckham to the Supreme Court in 1896. By this time, an emerging consensus on the Court held that unreasonable uses of the police power violated fundamental rights--especially liberty of contract--protected by the Fourteenth Amendment’s Due Process Clause. In 1897, Peckham helped cement this consensus with his opinion for a unanimous Court in Allgeyer v. Louisiana, 165 U.S. 578 (1897). Allgeyer involved a relatively narrow issue, but Peckham included pro-liberty of contract dicta in his opinion that would be cited by attorney and judicial foes of government regulation for the next forty years. Nevertheless, for the rest of Peckham’s tenure, the Court as a whole was rather deferential to states' claims that they were acting within their legitimate police powers. The Justices upheld all manner of novel regulatory schemes, often over the dissents of Peckham and his consistent ally, Justice David Brewer.

A rare Peckham victory came in Lochner v. New York, 198 U.S. 45 (1905). Peckham wrote an opinion for a bare five-Justice majority invalidating a New York law forbidding bakery owners from employing bakers for more than sixty hours per week. A great deal of mythology surrounds this opinion, much of it arising from Justice Oliver Wendell Holmes's famous dissent; in particular, there is little support for the commonly held views that Peckham's decision is "formalistic" or that it was based on "Social Darwinism." Rather, Peckham sought to differentiate between legitimate "health laws" and illegitimate "labor laws" that intefered with the right to liberty of contract without a valid police power justification. Peckham concluded first that common knowledge did not suggest that baking was unhealthful. Moreover, statistics from Lochner's brief, obliquely referenced by Peckham, showed that bakers' mortality rates were similar to those of clerks, attorneys, physicians, and other unregulated professionals. These statistics, combined with poor briefing by New York, likely account for Peckham's ability to win a majority. By contrast, three years later Peckham joined the rest of his colleagues in upholding a maximum hours law for women workers. Both common experience and "sociological" evidence supplied by attorney Louis Brandeis suggested this was a legitimate health law.

Beyond his infamous Lochner opinion, Peckham is perhaps best known for his expansive interpretation of the Sherman antitrust law, which he saw as protecting sturdy small businessmen against unfair corporate competition. His opinions on civil rights for African Americans are remarkable only for the apparent ease in which he abandoned his usual antistatism in voting to uphold Jim Crow laws. On the other hand, he, along with Justice Brewer, were far more likely than any of their colleagues to vote in favor of Chinese litigants in the many immigration cases that came before the Court.

Justice Peckham served on the Court until his death in 1909.

Miers Nomination--Well, My Prediction Was Right:

Well, it looks like I was right, but I'm not too happy about it. As I wrote a month ago:

Why Roberts? Why did the President decide to nominate Roberts for Chief? The first reason is obvious--the way things are shaping up, he seems like an easy confirmation.

But allow me to propose a second, more speculative possibility. A distinguishing characteristic of this President seems to be the faith he puts in his own personal judgements and assessment of people. Perhaps it is arrogance, perhaps it is that he truly is a better judge of character and ability than the rest of us, but he truly seems to believe that he has better judgment about others than anyone else around him. Or perhaps he wants someone who he thinks will be loyal to him and no one else (such as outside interests). It is similarly my impression that far more than most Presidents he relies on his personal assessments of people who he chooses for his inner circle, rather than their resumes or experience. Indeed, he chose Roberts notwithstanding his relatively short time on the bench. Roberts, of course, was selected by him as well. Let me suggest that Roberts therefore has the one necessary (but not sufficient condition) for being Chief--he had previously won the President's trust the first time around.


If I am correct in this assessment of the President's decision-making style, this would suggest that his next nomination would likely be from the crop of judges that he has appointed since becoming President. This would include Brown, Clement, or McConnell, but not more experienced luminaries such as Luttig, Jones, or Wilkinson.

At the time, of course, I had assumed that some minimum degree of luminescence would be required, in addition to Presidential trust. Little did I know that being close to the President would turn out to be the sole criteriaon for nomination to the Supreme Court.


A quote off of the Comment board David linked to nicely sums up the cronyism of the pick:

Instead, this job gets filled as if it is a second tier cabinet post.

I haven't double-checked the transcript from the press conference, but is everyone sure that he said "Supreme Court" and not "Secretary of Transportation"? The latter certainly seems somewhat more plausible...

It's Miers:

White House counsel Harriett Miers will be nominated to the Supreme Court. I know absolutely nothing about Ms. Miers, beyond the basics from the media. But my initial reaction is that it's unfortunate (but not surprising) that for both Supreme Court nominations, the president has chosen well-connected insiders with ties to the executive branch, rather than individuals who are more likely to bring a more "independent" perspective to issues of government and especially presidential power. And appointing his "personal lawyer" from Texas seems very Lyndon Johnsonish, and is hardly likely to repel recent charges of Bush Administration cronyism. On the other hand, I'm please that Miers is (a) not from an elite law school; (b) not a federal judge; and (c) spent the vast majority of her career outside the beltway. All good things to bring new perspectives to the Court, and, in the case of (b), break a silly tradition [that Justices MUST be from the federal bench] that has evolved.

UPDATE: Comments on the conservative "confirmthem" site are apoplectic. This nomination may give the president some problems with his base.

FURTHER UPDATE: What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR's primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn't the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR's nominees moved the USSC generally to the Left. Thoughts?

[Puzzleblogger Kevan Choset, October 3, 2005 at 7:49am] Trackbacks
Bush Expected to Nominate

Harriet Miers to the Supreme Court.


Sunday, October 2, 2005

Laissez Faire Books Sale:

Laissez Faire Books, home of the "World's Best Selection of Books on Liberty," is currently running a sale offering 15% off all items, including books by some of your friendly neighborhood Volokh Conspirators. LFB has an excellent reputation for customer service, which comports with my experience.

Luttig Takes the Lead:

Fourth Circuit Judge Michael Luttig has taken a sudden jump and lead (by the time you read this link , the betting may have substantially changed) in the Tradesports Supreme Court nomination betting. Still, he's only at a bit over 18%, so there is no dominant favorite. We shall see.

Inside Scoop on the Second Nomination: I have been poking around DC to find who the White House might nominate for Justice O'Connor's seat on the Supreme Court, and I wanted to report what I'm hearing. First, sources tell me that Judge Joseph Wapner is in the running. Wapner is a trusted figure to many Americans and should be easily confirmable, but there is some concern about his age (he's 86). Judge Harry T. Stone is also mentioned. Stone's sense of humor and his magic tricks might attract Justice Kennedy's vote, and could also keep Scalia entertained; on the other hand, the Right may object to his lack of conservative bona fides. Finally, I am hearing the name Judge Reinhold a lot, although I'm not sure if that's because my sources think he is on the short list or because they recently watched Beverly Hills Cop. Anyway, stay tuned. We should know in a day or two whether the nominee is Wapner, Stone, Reinhold, or someone else.
A Response to David: David asks whether it is "strange that the government would offer Larry Franklin, a government official who actually leaked classified information, a plea agreement so that he would testify against two lobbyists who are accused of what would seem to be the lesser offense of knowingly receiving the classified information."

  I think it depends on the nature of the plea agreement, as well as any plea negotiations that might have gone on with the other two defendants. If the government sought out Franklin and offered him a sweet deal, and never approached the other two defendants with a plea offer, then it might indeed be strange. But it seems more likely to me that the prosecutors had a plea offer open to all three defendants, hoping that one of them would fold and testify against the other two; this would strengthen the government's case considerably. In that case, Franklin was just the first to take the deal, and there is nothing strange about him pleading guilty.
Franklin/AIPAC case Query:

Anyone else find it strange that the government would offer Larry Franklin, a government official who actually leaked classified information, a plea agreement so that he would testify against two lobbyists who are accused of what would seem to be the lesser offense of knowingly receiving the classified information (something, I understand from media reports, is rather common in D.C.)? Either (1) the feds are trying to send a message to lobbyists, journalists, and whatnot that they risk prosecution for accepting leaked documents, and have decided to make an example of these two men; (2) the feds are still hoping for an espionage prosecution to justify the tremendous resources they seem to have been largely wasted on this case, and hope that pressure on the two AIPAC defendants will lead to this; (3) the feds have decided that if they don't get at least three convictions out of this case, they will look foolish; or (4) there is something else, and perhaps something strange, going on.

UPDATE: Continued discussion at Orin's post, above, and in the comments section to that post.

More On "'Hunting Terrorists' At Bucknell":

The other day I posted on Evan Coyne Maloney's report of students being called on the carpet at Bucknell for inviting a speaker to campus who was advertised as "Hunting Terrorists" at Bucknell. Maloney has an update on subsequent developments and now it appears that Bucknell is backpedaling rapidly.

The new post has the entirety of the "fairly unfortunate language" of the email in question that triggered the meeting (this seems to be the entire text):

Date: Mon, 29 Aug 2005 00:04:14 -0400 To: "Bucknell Faculty Staff and Students" From: Matt Gabler Subject: [CAMPUS:8789] The Real Story from the Frontlines Where were you during the months following September 11? Major John Krenson was hunting terrorists.

The Real Story from the Frontlines: Major John Krenson details his experiences as the Chief Intelligence Liaison Officer between the US Coalition and NATO forces in Afghanistan.

Gardner lecture Hall (Dana Engineering) September 6 7:00 PM

This event is brought to you by the BUCC, Dean Ferraro, and Young America's Foundation.

Bucknell contends that the "hunting terrorists" issue was just "one small segment" of the conversation in question and has been blown out of proportion. As Maloney suggests, not only does this appear to be inconsistent with the email correspondence surrounding the situation, but does not seem very plausible. Perhaps Bucknell's senior leadership just randomly calls in leaders of student groups to talk to them about their programming on a periodic basis, although thus would be a strange custom based on the various places I have attended and taught. And perhaps this meeting coincidentally occurred right after the "hunting terrorists" event and the College President taking personal note of it. But that story strains credulity to me.


I hadn't been following the Comments on this post closely, but in looking back at the original post, I see that one of the Bucknell students involved actually posted the text of the email in our Comments the other day here (it is the same thing I posted above).

Yossi's letter to Palestinians:

Yossi Klein Halevi, one of my favorite writers (his Memoirs of a Jewish Extremist: An American Story, is a wonderful autobiography, and must reading for anyone who wants to understand the roots of the Jewish Defense League and other extremist American Jewish organizations that took root primarily among Orthodox Jews in the 1960s and 70s), has penned a powerful "Letter to Palestinians." An excerpt wouldn't do it justice, so read the whole thing.