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-
You're calling the President who put his Presidency on the line to depose Iraq a coward?
You're calling the President who put this nation on the path of a long term war against a fanatical enemy in the far corners of the Earth... when such a maneuver would risk his political future... a coward?
Come again... Tell me how a President who would risk everything to depose a terror-supporting tyrant is too much of a coward to face the Senate?
I think you should analyze the situation from the stand point of the President. What would a fight over a qualified, known conservative have gained us? Especially consider that with the RINOs in the Senate, we would never have won the majority needed for the Constitutional Option.
Nominating a known conservative would be like starting a land war with China. We'd feel awful good about socking it to the Communists, but the people with their hands on the nuclear trigger will balk and we'd be left with warm fuzzy feelings, casualties, and exactly the same situation before the battle.
Reminds me of the European wars... All those battles, all those dead, and the borders almost always ended up exactly where they were before. Useless wars fought because of big egos and too little sense, and no thought for strategy.
Whose goals were apparently to put conservative judges in the courts. Do you think she was tricking him for the last 14 years? That's pretty good camouflage. Do you really believe she thought "Sheesh! What lame-o's! But this is what Bush wants." To give you an idea of how closely Bush's goals meshed with hers, David Frum (no fan of this nominee) says she called Bush "the smartest man she'd ever met." You don't really think she was just being a good soldier do you?
You are totally missing my point and misrepresenting my position. There is little or no proof that she has acting independently to uphold the ideas of the Republican Party or the Conservative movement in a legal setting.
What I might "hope" or "feel" is true about this irrelevant.
You are totally missing my point and misrepresenting my position. There is little or no proof that she has acting independently to uphold the ideas of the Republican Party or the Conservative movement in a legal setting.
What I might "hope" or "feel" is true about this irrelevant.
That would be true if it were YOUR choice. If it were YOUR choice, I would expect you to be very certain that your nominee to the Supreme Court believes in judging and not legislating.
Unless you have a real REASON to doubt that Bush has assured himself in the same way about this candidate, your criticism is uncalled for, worse, it is petty. Bush has vetted this person for almost two decades. She is eminently qualified (don't miss reading posts #38 and #36). If he has not chosen this nominee over all the others (with all the information at his disposal) with good cause, then I don't think we should have trusted him with the Presidency.
This smells to me like a choice made to ENSURE there were no mistakes. He has not let us down on judicial nominees in the past (and neither has Miers). There is NOTHING we know about this candidate to cause us to reasonably, seriously entertain doubts now.
I disagree. You don't have to think she'll be a poor justice in order to completely disagree with the nomination itself. A Supreme Court nomination is one of the key political events of the decade - and how the President chooses to go about selecting a justice is just as important as the actual person they select.
In this case Bush has appeared arrogant and out of touch with his base. To add insult to injury, he suggest that whiny conservatives just "trust" him - where he's done preciously little to earn that trust lately.
And being named in the "top 100" lawyers is some kind of absolute - like the "20 most beautiful people" I suppose? </sarc>
I'm sure some of that "top 100" business is based on lobbying, "who you know", etc - certainly can't be used as one of the main pillars of evidence that she will make a good justice, and even more, that she will be the type of justice George Bush promised when he courted conservative voters.
You are right but we are past the nomination itself right now, it is done. On an earlier thread today I said, "The question now is not whether the he made a wise choice but whether or not SHE is a wise choice."
Well, at this point the hearings will tell people whether the woman can defend herself and think on her feet.
Whatever happens, Republican fund raisers will have their work cut out for them in upcoming months.
The same guy who hasn't been able to summon the courage of his convictions to veto a single spending bill? The same one that handed over billions of our money to Arab terrorists? The same one that covers up for the Clintion administration at every opportunity? The one who falsely claims that Islam is a "religion of peace"? If it's not cowardice, it's something even less virtuous driving that behavior.
What you suggest is like negotiating a peace with the Nazis in April of 1945, and letting them keep Czechoslovakia. The enemy is nearly defeated, all that is needed is the final, decisive blow to end their reign of tyranny... the worst time of all to lose heart.
I appreciate your point of view but I don't see that it boils down to anything but a sophisticated version of "trust me". And I don't automatically trust a President that generously gives taxpayer money to African tyrants and Arab terrorists alike, while assisting millions of aliens in the violation of our sovereignity.
So, why don't you just come out and call the President a coward?
Why pussy foot around the issue?
John Kerry and all the other liberals have been calling the President a gutless coward for 5 years now. Why don't you go over there and shake their hands and tell them that you support their opinion?
Come on... The cowardice argument is fallacious. It is intellectually defunct. There's a difference to bowing to the reality of politics and cowardice. Whenever the President has had to stand up to his base and to fellow Republicans, he has. He's stood up to international enemies and allies and called the shots. He and his family will forever be the targets of Islamic fanatics. Courage or cowardice? He's put his life and job on the line to do the right thing for the country. If you think any time that he doesn't do what you want him to do it is out of cowardice, you're mistaken.
So, tell me again in plain words... Is the President a coward?
It's either that or corrupt. I will let you decide which you prefer to believe.
Come on... Do you have the political courage to put yourself on the record?
Tell me plainly - Do you believe the President is a coward? Or do you believe he is corrupt?
I believe he is neither. What do you believe?
Why not go all the way? Was Brandeis qualified to interpret the Constitution?
I believe that he is corrupt. I was offering cowardice as a less damning explanation for those who couldn't bear to face the truth of his corruption, but since you are determined to know how I feel about it, there you go.
You see? That wasn't so hard now was it?
Now we know where you stand, and from what viewpoint you derive your opinions.
I just happen to disagree with you, but that's life.
But but but how can this be? She only went to SMU. No, no, there must be some mistake.
Earl Warren had a conservative track record when Ike put him on the USSC bench. We all know the outcome.
Fair enough. I believe that President Bush's interests conflict with that of the people of the United States of America in several areas, and that he cannot always be trusted. In this case - as in others, e.g. immigration, spending, the relationship with Saudi Arabia - I think the nomination is more the product of his personal intersts than that of the country. Where he works for the nation's well-being, I am quick to support him. Where he works against it I oppose him.
Moreover I have a lot of unresolved concerns about the nominee herself, as enumerated in previous posts I have made here on the subject.
Knowing the President is as accomplished a strategic actor as he is, I wonder if this nomination may be a ploy. The expected scenario was that the nominee would be opposed vehemently by the Left, which would place a rightward limit the President's choices. Perhaps instead he has contrived to put a leftward limit on what the Democrats could hope for by reversing the situation and provoking the vehement opposition from the Right. But even if so, I don't like it, because with the lack of spine evident in the Senate GOP she just might make it in.
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