Posted on 10/06/2005 2:25:34 PM PDT by quidnunc
My teammate X was sprawled on the hotel bed, muttering "Why? Why?" as he contemplated the failure of his legal genius.
X was the smartest member of my law school's moot court team. He wasn't the finest of public speakers and his legal writing style wasn't textbook perfect, but who could question his monumental intellect? He won the award for highest first-year GPA. He read abstruse law and philosophy journals for fun. He debated with professors after class, exercising a subject mastery that left onlookers slack-jawed. And when he proudly announced to his moot court teammates that he had found an obscure jurisdictional issue in the tournament fact pattern — a discovery that we just had to present to the tournament judges — who were we to object?
The moot court judges spanked his pet idea like an unruly two-year-old. The alabaster castle of X's elegantly crafted oral arguments fared badly against the massive sledgehammer of blunt legal reality. The moot court judges were local litigating attorneys who had no patience for cutesy law review theories and tricky, if-you-read-the-law-a-certain-way shenanigans. For all his brilliance, X had failed to persuade. And, absent persuasion, the law is just a game of Scrabble, played with ideas for tiles.
Where brilliance failed, directness succeeded. My partners and I avoided X's ultra-intelligent theory altogether in our oral arguments, and subsequently made the break to semifinals at the tournament.
I thought of X when I read the blogosphere response to the nomination of Harriet Miers to the Supreme Court. A litigator with a resume lacking in the oak-leaf clusters and gold-plated bowling trophies that separate the super legal achievers from the super-super legal achievers, Miers has been damned as an over-promoted crony and praised with the kind of lackluster yet overwrought accolades usually reserved for the fastest kid in the Special Olympics race. The famous quote from Senator Roman Hruska has been much cited. Of a dubious Supreme Court nominee, Senator Hruska once said: "Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there." Har, har! What a ludicrous defense of a hopeless nimrod! Har har har har har!
After we've harred our merry hars, let us reflect on the poorly articulated wisdom hidden in Senator Hruska's words. Lawyers, judges, and people do tend to be average. (Average is funny that way; it's like a mathematical law or something.) We might benefit from a justice smart enough to be smart and average enough to connect with the other 99% of the legal profession. But we aren't likely to find such a justice among the Xs of the legal profession.
Law students like X tend to end up in the judiciary, and later in life they dominate the Supreme Court. And it shows. Consider the Lemon test. Derived from a 1971 Supreme Court decision, the Lemon test is a conceptual tool for determining whether the government has "established" religion in violation of the First Amendment of the Constitution. It's a three-pronged test, and subsequent Supreme Court jurisprudence has added to it lots of modifiers and sub-clauses and associated intellectual debris. The result has been jurisprudential chaos. Predicting the constitutionality of a governmental interaction with religion is like playing an expert-level game of Minesweeper: it's half educated guessing and half dumb luck, with bombs randomly strewn across the playing field to thwart your meticulous reasoning at unexpected times. Such over-reasoned intellectual froth has the mark of X all over it.
-snip-
MOOSEMUSS. Yes, MOOSEMUSS. That is what came to mind when the discussion amongst the right about the Harriet Miers nomination went into full tilt yesterday … MOOSEMUSS.
Hat tip to Mr. Atos for planting the seed with his Bangalore Torpedo piece, and after all the rancor yesterday, I thought, MOOSEMUSS.
I don’t buy the theory that in an instant, that the President, who incidentally, got the GWOT right, and the John Roberts nomination right, who has Dick Cheney as his VP and Condi Rice as his SOS … blew a gasket and has gotten this completely wrong. I thought … maybe … MOOSEMUSS.
I think that the President had many possible choices here, but I think he chose to be a bit more devious than he is being given credit for. I think he, as Mr. Atos points out, is taking this opportunity to covertly attack the leadership and structure of the Democrat base. Why do I think that? MOOSEMUSS.
MOOSEMUSS is the easily learned acronym that highlights the nine, generally accepted, Principles of War. Notice I didn’t say battle. Battle … a general encounter between armies, ships of war, or airplanes. War … a period of declared and open hostilities. For the uninitiated, fighting wars … protracted periods of combat, and fighting battles … encounters between warring forces, are two entirely different matters and require two entirely different schemes. One, war, requires strategic thinking, and battles, require tactical thinking. These are two entirely different operational levels.
So, when I think MOOSEMUSS, I am not considering the tactical, I am considering the strategic.
Let’s look at the Miers nomination and see if, somehow, the guy who got the GWOT, may also get the Principles of War, when it comes to waging a long term strategic campaign against the Democrats.
M – Mass – Concentrate Combat Power at decisive time and place.
I think the President gets it … this is not the time to force an all out fight with the Democrats … he is not willing to expend all of his political capital in order to push through a more controversial nomination. Let’s chip away until the mid-term election, but let’s don’t give them any additional ammo going into them.
O – Objective – Direct every military operation against a clearly defined, decisive and obtainable objective.
Again, this nomination, while important, is not the final conservative objective … I would view that as the ultimate emasculation of the Democrat Party to the point it is ineffective as an organization. This nomination is an intermediate objective, but not the final objective … no need to expend all of your ammo here.
O – Offensive – Seize, retain and exploit the initiative.
This nomination is a home run here. The Dems were obviously preparing for the worst … basically any other, very conservative judge, they were ready. They would have come out of the box on Monday morning with their canned offensive and dominated the evening news with their media blitz. The President, with this nomination, redefined the fight, put the Dems on defense, and is able to maintain the initiative, against the Democrat party for the foreseeable future. Harry Reid endorsing Miers, is a much a capitulation as it is an endorsement. The President put the Dems on their heels and took away their ammo …
S – Surprise – Strike the enemy at a time, a place and in a manner for which he is unprepared.
See above- Offensive. This move completely disarmed the Dems. They were immediately frozen, and have yet to get any traction on this issue, in any coherent way. This was achieved by coming across with a surprise nomination, not by attacking their prepared defenses.
-snip-
(Major Mike in My Sandman, October 5, 2005)
To Read This Article Click Here
Justification: "We should purposely nominate un-qualified people"
Just pathetic.
Good reads..I welcome the new insights.
Quote:
MOOSEMUSS corollary ... perfect can be the enemy of good enough.
Critic's Justification: "If she doesn't meet my arbitrary resume conditions X, Y, & Z, she is totally unqualified."
More pathetic.
"There are 1,084,504 lawyers in the U.S. 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." -Charles Krauthammer
That says it for me.
I really do not know how to respond to you. The big issue with a SCOTUS nomination is not a President who nominates her and will be gone from the political scene in 3 years.
The IMPORTANT issue is not whether or not the President made a wise choice but whether or not SHE is a wise choice.
Is Ginsberg qualified to "interpret" the Constitution? How about Souter?
[[The people writing these defensive articles need to start coming to HER defense instead of that of the President.]]
An interesting point, but one that seems to be lacking in substantive reason when considering those entrenched will not change their minds. Plenty has been written in her defense, and the retort is always the same - they seek to demean because she is not who they wanted. They think their judgement is better than the president's. They think their crystal ball and strategy is better. Yet, they avoid that being a 'papered judge' is not the constitutional standard for a SCOTUS judicial nominee.
In the legal profession (as a lawyer), she can hardly be described as a lightweight. You do not get voted, not once, but twice, as one of the Top 100 Most Influential Lawyers in the U.S. without some serious intellectual acumen in the legal profession. Over 33% of of Supreme Court justices in our history have had no experience as judges. I have seen o serious case made against her, the sole objection is the double standard of wanting a litmus test to guarantee how she will rule. I refuse to buy into that ideological hypocrisy.
But beyond simply focusing on her, it is very relevant to focus on the big picture, the end game and the startegy employed to get there. Miers is simply one battle in the war over the direction of the Supreme Court. Miers is a half step, replacing O'Connor, who half the time voted as we wanted. Miers is unquestionably more conservative than O'Connor. My eye is on the big battle that will occur when Stevens and/or Ginsberg step down. They are the next two that figure to become open and that will be the decisive one that shapes the court for a generation or more.
It is called big picture thinking, keeping your eye on the future and not losing focus. If conservatives cannot remain focused, and instead fight amongst themselves over a non-decisive issue, when that big battle comes, we will not be prepared to fight and win. The one truism about war that definitely holds true in politics is 'divide and conquer'. Make no mistake, the democrats are rubbing their hands together in glee over this division.
You will hear some say "It is Bush's fault". I say that is garbage, take responsibility for your own actions and reactions. We each choose to act and react as we do, no one makes us do so. If the conservative spectrum can wake up to the big picture, because of the Reid and Leahy democrat foul up of suggesting her, this will be a no lose battle for the conservatives and a no win battle for the democrats. We have a chance here to strike a debilitating blow to the left, hewing the progressive left away from the centrist democrats, one that will fracture their base, if we stop attacking each other in a vitriolic manner.
This is not the result of any strategy. It is a result of having too little courage to do battle with the enemies of the republic.
[["There are 1,084,504 lawyers in the U.S. What distinguishes Harriet Miers from any of them other than her connection with the president?]]
She has 'twice', not just once, been voted among the Top 100 most influential lawyers in the U.S (both times before coming to the White House and she was certainly not a household name). How many of those 1,000,000+ lawyers can say that ? I would say that pares that list down considerably.
Krauthammer, though generally providing some good analysis, has always been a little bit of a snob.
MOOSEMESS is more like it.
Let's face it: This is less about Miers' "qualifications" than about the fact that we've been itching for a fight with the left.
After all, no one questions whether a lunatic like Souter is "qualified," do they? No, they don't. And Republicans *never* questioned the "qualifications" of a lunatic ACLU lawyer like Ginsberg. But they're sure raising a stink about it now.
What? Are progressive republicans concerned that Harriet might not find a justification for gay marriage in a penumbra emenating from the Equal Protection Clause?
It's not "progressive" Republicans making a stink about this, it's grassroots patriots wondering whose interests she will serve on the court and how well she will serve them.
Oh. So you've dropped the issue as to whether or not "she's qualified," aye?
Well, that was quick.
I think judging her before she has had a chance at presenting her case in a confirmation hearing is pathetic.
Does she just look unqualified?
Have you been a foreman on a Texas Grand Jury lately?
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