Posted on 10/15/2005 2:37:57 AM PDT by KentTrappedInLiberalSeattle
Bill Dyer (mail) (www):
Orin, thanks for the link and the post.
"I haven't read the briefing either, I've only read the district court's opinion.
I think that one can draw some inferences with great confidence, without reading the briefing. For instance, one can be relatively sure just from the district judge's description of the parties' positions that Ms. Miers' briefing did indeed grapple with the merits on important and sometimes subtle constitutional issues -- not just the novel Twelfth Amendment issue per se, but also the standing/justiciability issues. That by itself refutes one of the factual mistatements that Miers opponents have been braying all week -- i.e., that she's never dealt with issues of constitutional law in her practice. That is objectively false; not only this case, but others I discussed in my post, conclusively establish that falsity. Yet we'll hear that same falsehood repeated over and over again, probably through and including the confirmation hearings, by opponents of this nomination.
One could also draw inferences, but perhaps with less confidence, to the effect that since Ms. Miers won, her briefing was at a minimum adequate. That wasn't really my point, though; that is, I wasn't intending to comment so much on the briefing at all as on the fact that she won, which I do believe is significant. Completely apart from the merits of either sides' briefing, who won and who lost are significant on a cosmic scale because of the stakes, and I'd submit those facts are also significant based on who Ms. Miers' opposition was — a prototypical example of the kind of lawyer so many are insisting Ms. Miers is not, but that they're insisting one must be in order to be trusted with constitutional litigation. These things aren't matters of pure, objective fact, I'll concede. But my hope is to affect some opinions, or at least reopen some minds, with them.
You write, "three random dudes were trying to overturn a Presidential election on the theory that Dick Cheney was a Texan." Well, no. Prof. Sanford Levinson (probably with covert support and encouragement from the DNC and/or Gore campaign, but that's pure speculation on my part) was trying to do that, and he's no "random dude." He's one of the most esteemed constitutional scholars in America. I can't speak for him, obviously, and I'm not trying to do so. But with respect to your (and others') characterization of this case as a slam dunk for Ms. Miers' side: That's not the inference I would draw from the fact that a scholar of Prof. Levinson's stature signed onto this case, nor from the fact that he appealed his loss to the Fifth Circuit, and certainly not from the fact that he filed emergency motions and then a petition for certiorari in the Supreme Court.
I genuinely am a fan of Prof. Levinson's. If I recall correctly (and I'm pretty sure I do), he taught my legal ethics class (spring semester 1980, I think, right after he arrived at UT and right before I graduated). One of the things we discussed at considerable length was Fed. R. Civ. P. 11 and the parallel ethical canons regarding frivolous litigation. One can absolutely, positively infer, then, from the fact that Sandy Levinson filed this case and then appealed it through those higher courts that he didn't think his position was foreclosed outright by prior caselaw or the facts (or technically, if it was foreclosed, that he had a good faith basis for arguing that such precedents should be overturned), and that he likewise believed himself to have, at a minimum, a good faith basis for asserting those claims. I'm confident of that because I believe that Prof. Levinson is himself an ethical lawyer, and I don't expect anyone to challenge that assertion here.
You also wrote, "it was pretty clear that Cheney just wasn't a Texan." If so, that must be "clear" to you based on your rather sophisticated understanding of the differences between, for example, "citizen," "resident," and "inhabitant" — some of which can have varying meanings depending on context. But just on the Everyman's View of the Facts, this was not at ALL obvious: Dick Cheney had been living in Dallas as the CEO of Halliburton on what looked like a full-time basis. Ultimately, I think the district court got that issue right, and a well-written opinion — which I think this one qualifies as — makes its conclusions seem inevitable and obvious. That's not necessarily the way it seemed before that opinion was issued, however, and what seems a slam dunk in hindsight oftentimes wasn't at the time.
I do genuinely appreciate your post as well as Jim Lindgren's, and not because I've necessarily convinced you, him, or anyone else who reads them, or who follows your links to my blog from this one. I have a sense that at least within the blogosphere (which I'm vain enough to think can be an opinion leader of sorts), the average view of Ms. Miers' qualifications is shifting from where it started on Monday morning, which was "third rate lawyer" for an "undistinguished firm" who had nothing to commend her over any other lawyer. I already knew enough of Ms. Miers and her firm to be certain on Monday that those characterizations were very unfair to her. And everything I've learned since Monday has reinforced that conclusion, at least on my part."
10.8.2005 2:13am
Agreed. Let's get the facts on the nominee on the table for review and reasoned debate. Let's discuss the integrity of using "stealth" as a political tool for "we the people."
In fact, the discussion that has been going on is the antithesis of "partisan." It is an intermural debate over the ethics of stealth in the political process. ANd the partisan argument is left untouched. Pity, that.
To whom? The person who has the constitutional duty/authority/privilege to nominate says he knows her very, very well. Many people who have worked with her, or know her personally over a long period of time, support her strongly. So where in the Constitution is the requirement that the nominee must be well known to 'the people' and 'the people' must approve? Did I miss that somewhere?
Thanks!
Just downloaded the zip file and browsed through the discussion.
Your writing is most unimpressive and your comprehension sucks. JMHO of course.
Uh, well, there is this little issue that most legislatures, including the Congress, are empowered to pass laws to regulate the establishment and practices of the courts.
Read parts of this thread, and get back to me with your answer. It is impossible to give principled advice and consent when the nominee is a cipher.
http://www.freerepublic.com/focus/f-news/1502188/posts?page=6#6
Check posts #6, #7, #12 & #13.
The substance is that it is a separation of powers issue.
At least Fein could control his anger enough to see that. Unlike you.
Agreed!
Meirs' undergrad degree was in mathematics. Can't fake that.
(As I recall, Bush's SAT's were low in Verbal and high in Math.)
But the legislature has the power to regulate the courts. Period. That is not a separation of powers issue.
Of course there are no little notes from Miers to Bush about his daughters or whatnot so her actual ability to write a legal brief might be tough to discern in their absence.
Sorry for the sarcasm but articles like this one in the WaPost bring out the worst in me. You would think if I could find one of her legal briefs in a very important constitituion case, so could the WaPost.
Oh?! You mean the Senate IS NOT going to have hearings on this nominee, to get the information by which they can do the 'advice and consent' thing? I missed that too...
Yes, I have.
OTOH, it is easy to throw accusations without providing evidence as you have done in your above statement.
Well, yes, obvious it is easier. But my message was in the context of "your assertion" Ajackson's rebuttal - and both sides can be fact checked. So there is one example.
Listen, I respect that you are a good advocate, and I don't care how you decide to frame you arguments. But your arguments can be and are fact checked. I rarely post a correction to a person that I find being deliberately misleading becaase to do so touches off ill will and a side bicker. But I can objectively say that I do not trust what you post.
The issue she was writing about had nothing to do about regulating the establishment and practices of the courts.
The fact that she urged separation of powers as a reason to be against a legislature usurping the court's traditional role of regulating the practice of law, including the reasonableness of fees, is not "outrageous".
Besides, separation of powers always comes up when legislatures or executives try to manipulate courts by holding back or limiting funding, for example. There's nothing "outrageous" about bringing it up.
No sweat. I'm all for presenting both sides of any issue. In the spirit of the Federalis Society and all that. And I must say that you too are an outstanding advocate.
So to that extent, we are both guilty of presentation with some amount of bias. It is unavoidable. I certaintly admit that I do.
Exactly! As I noted earlier, this is the same slimy type of hit piece reporting, that papers like the Compost and NYSlimes used to try to paint both Reagan and Bush as complete idiots, again and again.
I don't expect the same out of fund managers. I expect them to know money.
A lot of commas in that sentence. I recommend you rework it:
To date, not ONE bright student failed to write coherently, even brilliantly. Without exception, all of the poor thinkers invariably produced equally poor writing.
Are you sure you are an English teacher?
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