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-
I think a lot of the objection is he had the pick of the top 1% of conservative lawyers in this country and they were not "good enough" in his mind.
There are dozens who would not have to prove themselves to anybody but Miss Miers is now in the unfortunate position of having to do that at the same time keeping the Dems at bay.
It is a difficult feat to accomplish.
They are indeed qualified and they are often wrong.
"judging her before she has had a chance at presenting her case in a confirmation"
There is no case except "If you don't support her you're not a real conservative".
Oh. So the logic is that one can often be wrong about the Constitution and yet be qualified to interpret it, yet one cannot be assumed to be qualified if one does not have a degree from an Ivy League university. Is that it?
I have no idea what an IV league degree has to do with anything and I certainly do not feel it is necessary to be on the SCOTUS. There are many factors that qualify people to sit on the Supreme Court and educational excellence is only one of them.
That's one issue, but the bigger issues are the obvious conflict of interest, the unanswered question of why so many better-qualified candidates were passed over, and all the unresolved question marks about who she really is and what she believes.
She appears to be the personal agent of the President. And that's not the role of a Supreme Court Justice.
Wow the personal agent of the President. There you go. Case settled.
Umm...what's unqualified about Miers or Byron White for that matter?
White got it right on Roe. A majority of pointy-heads divined a brand new right that was so loopy you NEEDED a doctorate to think it up.
The continuing failure of this nominee's supporters to directly answer any substantive question (such as those I outlined above) does not speak well for the quality of the nomination.
Well you're the thoughtomator man, you can't expect us mortals to play in your league.
[[I think a lot of the objection is he had the pick of the top 1% of conservative lawyers in this country and they were not "good enough" in his mind.]]
Remember, there are over 1,000,000 lawyers in this country, she was named among the Top 100 twice. The Top 1% would include 10,000 lawyers. Being in the Top 100 only once would place her in the Top .01% of lawyers, twice puts her in an even more elite class. I would say that is a pretty good qualification as good enough, better than 99%+ of the Top 1%.
The continuing failure of this nominee's supporters to directly answer any substantive question (such as those I outlined above) does not speak well for the quality of the nomination.
I've answered these questions many times I'm quite sick of doing it. The nominee's detractors can't pay attention to anything but their own obstreperousness what can possibly be done to help them?
ONE LAST TIME:
After looking at all the candidates the you, I, and whoever liked, the President clearly wasn't happy. This is the same President who faultlessly nominated candidates you like over the last 5 years. But he didn't have a good feeling about any of them. He had all their background information (which you and I don't have) and he wasn't happy. But he did know a hard working qualified attorney that had helped him pick all his nominations over the past five years (the ones you and I liked). He DID have a good feeling about her. He KNEW she wouldn't surprise him later because he had known her for almost 20 years.
So he picked her. No, he wouldn't have done it if he had not known her so well. Knowing her so well was what made him know she was a good pick.
Answered?
I thank you for the good faith attempt, it is certainly more than others have tried to do in response to my questions.
However, while the President has nominated many great candidates in the past for various positions, he has also committed some egregrious blunders - I'll name a few: Powell, Gonzales, and recently Julie Meyers; Tommy Thompson is questionable at best (and judging performance, less than that), maintaining Norman Minetta, and others (e.g. Richard Clarke, no small error). So while he's got a good overall record, that is not applicable to every instance.
I'm sorry, but I find it incredibly hard to believe that out of all the outstanding judges who were considered, even among those that have already been confirmed by this Senate, he could not find a better pick. Relying on the argument that their personal relationship made the difference goes right back to my initial objection of a conflict of interest. He may know her well - but nobody else does.
You don't pick Supreme Court justices like you pick your friends. You pick someone who will uphold and defend the Constitution of the United States. There is no record of this nominee doing so. Other candidates have extensive records of doing so. All the arguments for this candidacy ultimately rest on the following assertions:
a) The President has judged the character and ability of this nominee correctly; and
b) The President has chosen this nominee based on his past promises.
Neither assertion is reliable enough to form the basis to support a Supreme Court candidate.
You missed a very important qualifier in my statement.
Top 1% of CONSERVATIVE lawyers. Miss Meirs credentials as a lawyer appear to be adequate but there is little or no evidence she has used them to advance the Conservative cause or that of the Republican Party.
When she was on the advisory board at SMU law school she set up a women's lecture series. The women she invited were Patricia Schroeder (democratic congress woman), Gloria Steinam (liberal feminist) and Ann Richards (Democratic Governor of Texas). This was in the late 1990's.
I doubt it, Souter/ Ginsberg probably think it something that requires a laxative.
Ah! But none of those were JUDICIAL nominees. Could it be that the aid he received from Harriet Miers had something to do with that? (BTW he didn't hire Dick Clark--he was a leftover from the Clinton Admin)
I'm sorry, but I find it incredibly hard to believe that out of all the outstanding judges who were considered, even among those that have already been confirmed by this Senate, he could not find a better pick.
But you don't have access to their entire history nor have you spoken directly to them. Bush and Miers and company have. What makes you so informed on this issue?
You don't pick Supreme Court justices like you pick your friends. You pick someone who will uphold and defend the Constitution of the United States. There is no record of this nominee doing so. Other candidates have extensive records of doing so.
Once again. Miers is emminently qualified. If he didn't know her for 20 years, he would presumably require a lot of background information on her. Since he did, he didn't.
Imagine you are highering a programmer. You interview lots of candidates some seem smart, some *claim* to have good educations, but are they dependable? Could they be snowing you? Will they quit in a month? You don't really know and you have a product line coming out in a very short time and the future of your entire small company depends on its success. Then you realize that your programmer-friend who has been "helping you out" has produced nothing but top quality work for the year he's been working with you. He doesn't have an MIT degree, but you know he's really good, everyone in your company raves about him, and you know personally that he won't let you down. Maybe you wouldn't hire him based on his resume, but you don't need a resume since you've seen HIM work and you've seen HIS work.
Is that cronyism?
You should look at this another way: The President examined ALL the candidates you and I like. He REJECTED them. They all had an element of risk involved regarding their philosophy, how they would rule, or whether they would pass the Senate. Rather than gamble, he went with what he KNEW would be a good choice. That's not cronyism.
It would be cronyism if she were unqualified. But she's not unqualifed. Even Rush says so. Even David Frum says so. She's one of the top 100 lawyers. He wouldn't have thought of her if he didn't know her, but knowing her is what made the choice appealing. It wasn't a gamble. Do you want him gambling on this nomination?
Try exceptional.
but there is little or no evidence she has used them to advance the Conservative cause or that of the Republican Party.
She has been partially to largely responsible for putting before the President every judicial candidate he has nominated over the last 5 years--candidates YOU and I liked very much. How is that not advancing the cause of conservatism?
100/1,000,000 = 1/10,000 = 0.0001 = 0.01 percent
In the top 0.01% of attorneys nationwide, not once but twice!
I wonder if only 10% of those who made the top 100 attorneys list nationwide make a second time.
If so, then we have her in the top 0.001 % of attorneys nationwide. For those of you from Rio Linde that's one one-thousandth of one percent - a pretty small grouping!
And let's not forget, Chief Justice Roberts never made it to "White House Counsel", he stopped at the lowly position of 'assistant WHC'. Yep, that's right - change the timelines by a few years and Roberts would have been a working below/for Ms. Miers. And it was there he did some of his so called 'best work.'
To see how I really feel about Ms. Miers, go to Ms. Miers Goes to Washington or see what Varifrank had to say about public squealing and hysterical carrying on
BTW - I really liked the image of her clearing brush with W. They could have been talking about a few Aunts of mine.
RileyD, nwJ - "Only the humble are sane."
Excellent point. Ex-cel-lent.
She was advancing the goals of her boss.
He will not be there with her in her Chambers on One First Street. It would be comforting to know she has the strength of her CONSERVATIVE convictions while being bombarded with the liberal sensibilities of the Lefty Four.
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