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Miers -- One View
Myself | 10/09/2005 | Wisconsin

Posted on 10/09/2005 9:24:32 AM PDT by Wisconsin

I am a retired lawyer. I have argued three cases before the U.S. Supreme Court, two of which are usually at least footnotes in most Constitutional Law texts.

I do not want a "great" Supreme Court Justice. I want a "great" Supreme Court. No single justice decides a case before the Court, the Court as a whole does.

.....


TOPICS: Constitution/Conservatism; News/Current Events; Politics/Elections; Your Opinion/Questions
KEYWORDS: miers; scotus; supremecourt
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I am a retired lawyer. I have argued three cases before the U.S. Supreme Court, two of which are usually at least footnotes in most Constitutional Law texts.

I do not want a "great" Supreme Court Justice. I want a "great" Supreme Court. No single justice decides a case before the Court, the Court as a whole does.

Though I tend conservative, my "great" Supreme Court is not necessarily conservative. A great Supreme Court is one that has an open mind -- one that sees each case not merely as the stuff to be pressed into another brick in a long running ideological argument, but as an individual question with its own facts and peculiarities of law. A great Supreme Court is one that has intellectual integrity -- its decisions are defensible as logical honest outgrowths of the facts and law in the case. A great Supreme Court is one that decides matters clearly and forthrightly and thus provides guidance for lawyers and inferior courts.

What do I mean by an open mind and intellectual integrity? In one of my cases the concurring opinion starts off :

"I join the opinion of the Court, but I add these comments to emphasize the narrow scope of today's decision."

and ends with:

".....the Court has been presented with another of those cases - "few in number...."

Those words are a tribute to the then existing Court -- the four judges who concurred ideologically opposed the result. Unwillingly, but honestly, they nonetheless reached it. I do not think that such opportunity for success is as open in today's Court.

In my opinion the present Court has two great failings. I suspect these are the result of the present near equal ideological split.

First, it cheats. It fails to discuss or consider facts that are inconvenient to its decisions. It silently ignores or redecides the trial court's findings of fact. This corrodes justice.

Second, it lacks clarity. Perhaps in order to attract a swing vote in the middle, its majority opinions are often vague, muddled, and internally contradictory. It is all too fond of various forms of "balancing" tests. Most disputes are settled because the lawyers and the parties have a fair idea of what the result would be if they litigated. Losing that certainty exacts a serious and real cost in uncertainty. It also gives increasing scope for unjust causes of outcome -- which trial judge was drawn, where the case was brought, what the decision of the U.S. Attorney was. Uncertainty does serious harm to justice.

I know very little about Harriet Miers. What I have read, however, suggests that she would bring several things to the court. First, she seems a detail person with a strong desire for to grasp all the facts before deciding. Good for her. This court badly needs someone who could say at conference, "But what about the district court's finding at paragraph 113?" or would put in red ink on a circulated draft, "Contradicted by testimony at page 456 of the record". Attention to detail can both force the court to a greater intellectual rigor and to a more open mind.

Miers background suggests to me that she will also recognize that certainty, by itself, has a value to law that may be greater than ideological victory. The present court lacks this apprecition.

My two favorite modern justices, John Marshall Harlan II, and Hugo Black, were not themselves great justices. But both made the courts they were on better courts. Harlan's high standards forced intellectual honesty from his brethren. Black forced them to come down from the towers of reasoning and look at what the Constitution said. He also taught that a straight reading of the Constitution was not only a shield for conservatism, but a sword for personal liberty and civil equality.

As to qualifications : Harlan was a patrician that would meet every requirement of even the snootiest law school professor. Black was an ill educated Roosevelt political crony of sordid and despicable background. Both became superb choices. They made the court better.

I think Miers will make this court better.

1 posted on 10/09/2005 9:24:34 AM PDT by Wisconsin
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To: Wisconsin

Bump!


2 posted on 10/09/2005 9:27:29 AM PDT by ScreamingFist (Peace through Stupidity. NRA)
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To: Wisconsin

I'm not a lawyer or a scholar.

I just want someone on the court who'll pound sand up the noses of the justices who thought Kelo was good law.

Maybe Harriet is that person.


3 posted on 10/09/2005 9:28:17 AM PDT by IncPen (Because it's not your money, Senator Kennedy. It's mine, and I'd like to keep it)
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To: Wisconsin

Great essay from the perspective of an experienced jurist. Thank you.


4 posted on 10/09/2005 9:31:37 AM PDT by Dog Gone
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To: Wisconsin
I am no lawyer; however, I suspect you are right.

The critics do not know Mier nor have they heard her speak to any meaningful issue.

Many reject her because she does not have the slam dunk qualifications that Roberts has. Others reject her because she did not come from the so-called conservative farm system.

I think a little patience is in order.
5 posted on 10/09/2005 9:31:47 AM PDT by Loyal Buckeye
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To: Wisconsin

This will never do. You're putting things into perspective, using reality as a context. You're supposed to be alarmist, screeching "deception!" and "Bush has let us down."


6 posted on 10/09/2005 9:32:16 AM PDT by Clara Lou
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To: IncPen

while people, in the news media, including Geo Will, talk about OConnor as a swing vote she clearly voted against Kelo and for the Texas 10 Commandment monument. That is conservative enough for me. Meirs will be stronger than OConnor because as this writer said - she will get the details into the law. It has been left out too long with the courrent court.


7 posted on 10/09/2005 9:35:13 AM PDT by q_an_a
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To: Wisconsin
Frankly, you're more qualified to be on the court and probably understand and can articulate Constitutional law than Miers. She has no grasp originalism nor as many, including Rush Limbaugh, have pointed couldn't articulate from the bench in written opinions.

This appointment is like putting star of the local softball team into a the starting lineup of a major league baseball team.

All we have is what little we know. What know isn't comforting. She's supports affirmative action and Title IX. She's organized conferences at SMU featuring radical feminists like Gloria Steinem.

Why in the world would she be a better pick than the many articulate conservative originalist judges that have openly spoken out and articulated the benefits of originalism and who have proven track records?

8 posted on 10/09/2005 9:35:19 AM PDT by Ol' Sparky
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To: Wisconsin

You may be right about Miers.
But like you, possibly, whatever I'm doing
I like thinking I'm going to win.


9 posted on 10/09/2005 9:36:50 AM PDT by OkieDoke
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To: All
You may have to use this in the future, like I have:
10 posted on 10/09/2005 9:40:00 AM PDT by AliVeritas ("A Proud Member of the Water Bucket Brigade-Keeper of MOOSEMUSS".)
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To: Wisconsin

I must admit, it's a very well-presented argument. So, what you're basically saying is why clamor for a 65 yard drive when 55 yards is all you need for a touchdown? :)


11 posted on 10/09/2005 9:40:26 AM PDT by AntiGuv (™)
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To: Ol' Sparky

..........Frankly, you're more qualified to be on the court and probably understand and can articulate Constitutional law than Miers. She has no grasp originalism nor as many, including Rush Limbaugh, have pointed couldn't articulate from the bench in written opinions..........

Gross speculation


12 posted on 10/09/2005 9:42:00 AM PDT by UB355 (Slower traffic keep right >>>>>>>>>>>>>>)
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Comment #13 Removed by Moderator

To: Wisconsin
The only ideology that matters is strict construction of the Constitutìon. All the great intellectual reasoning in the world is wrong and deadly to our republic if it starts from or has to refer to Mobutu vs. Tshombe as decided by the Congolese Maximum High Court or rationally finds penumbras and implications in nuances of emanations.

its decisions are defensible as logical honest outgrowths of the facts and law in the case

and ain't worth a happy dam if they are not congruent with the Constitution.

14 posted on 10/09/2005 9:45:32 AM PDT by arthurus (Better to fight them over THERE than over HERE.)
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To: Wisconsin

Thanks for your opinion....


15 posted on 10/09/2005 9:46:01 AM PDT by deport
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To: Wisconsin

Excellent essay!


16 posted on 10/09/2005 9:48:29 AM PDT by maryz
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To: Wisconsin

Good commentary, but I can't possibly credit it with any merit until I know where you got your law degree.


17 posted on 10/09/2005 9:48:43 AM PDT by Mr Ramsbotham (Laws against sodomy are honored in the breech.)
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To: Ol' Sparky
"She has no grasp originalism nor as many"

Probably can't re-build a carburetor either. What was Bush thinking? Sheesh
18 posted on 10/09/2005 9:49:05 AM PDT by Smartaleck
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To: AntiGuv
"So, what you're basically saying is why clamor for a 65 yard drive when 55 yards is all you need for a touchdown? :)"

Exactly. We could nominate Brown. We could nominate anyone with perfect conservative credentials and a paper trail five miles long. And you know what? The left would use it to destroy the nominee.

If there's no paper, there are no issues for them to address. This victory is ours for the taking, and there is no reason at all to admit defeat on the basis that the perfect is the natural enemy of the good.

19 posted on 10/09/2005 9:49:43 AM PDT by Reactionary
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To: Ol' Sparky
"Frankly, you're more qualified to be on the court and probably understand and can articulate Constitutional law than Miers."

Lets see... Take the word of a man who has actually argued cases in front of the Supreme Court...or listen to Ol'Sparky.

I think I'll listen to the voice of experience. Sorry Sparky.

20 posted on 10/09/2005 9:50:14 AM PDT by Rokke
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