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Wednesday, October 05, 2005

Harriet Miers' Qualifications and the Myth Myth*

Scott Gerber argues in this op-ed that "many" commentators have argued in effect that a qualified nominee for the Supreme Court must have graduated from an elite law school and be former judges, and that this is a myth.  Gerber aims for his target and hits it.  Alas, it is a target of his own devising, notwithstanding the unassailably unspecific word "many."  Criticism of Miers as undistinguished has focused far more on her later career than on the status of her law school.  (One exception to this, as I recall, was a quote from David Strauss that seemed to focus equally on her law school's status; his mistake, as far as I am concerned.)  And while judicial experience should not be a prerequisite for service on the High Court, it is somewhat different to argue that one is unimpressed by what the nominee has done, and particularly by her lack of either experience or a published record dealing with a broad range of constitutional issues, and that judicial service would have filled that gap.  And fewer people still, if any, have argued that both resume items are a prerequisite for service on the Court.

I think Gerber is right; I just don't think he's responding to what's actually been said. 

* For the inspiration for this title, see, e.g., The Muppet Movie (1979).

Posted by Paul Horwitz on October 5, 2005 at 05:31 PM in Law and Politics | Permalink

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Comments

In any event, Stone had some comments about Miers here, from Huffington Post.
http://news.yahoo.com/s/huffpost/20051004/cm_huffpost/008301;_ylt=A9FJqZ7EoUJDnDkAmwP9wxIF;_ylu=X3oDMTBiMW04NW9mBHNlYwMlJVRPUCUl

Posted by: Dan Markel | Oct 5, 2005 9:57:47 PM

Paul, was it Geoff Stone or was it David Strauss who made the comment? Maybe both, but I thought that what I had heard that was derogatory about Miers' credentials came from the former.

Posted by: Dan Markel | Oct 5, 2005 9:54:02 PM

I sympathize; I think the detail on SMU was unnecessary. On the other hand, note that Bainbridge's criticism does not end with the law school; rather, it suggests that nothing in Miers' career after law school comprised a demonstrable showing of "high power thinking." His criticism, whether accurate or not, would still have been left standing had he either omitted the SMU point or made clear that he offered her law school status not as a disqualification but as part of an accumulation of evidence.

Posted by: Paul Horwitz | Oct 5, 2005 8:03:20 PM

Here's an example of what Gerber is talking about. From Bainbridge's blog (http://www.professorbainbridge.com/2005/10/hewitts_still_w.html):

"You don't take a Saturday Night Special to an artillery duel. The Supreme Court is the big leagues. You don't bring your B team to the World Series. Miers may well be a smart lawyer. But she went to the #52 ranked law school in the country and then headed up a Dallas law firm that one of my colleagues who practiced in Dallas tells me got big but was not in the first rank. And, as Pejman observed, "Crashing through glass ceilings is impressive. But the Supreme Court demands more than that." Call me an intellectual snob if you want, but while I don't insist on Ivy League credentials, I do insist on documented high power thinking."

The #52 ranked law school? The horror! At least in this case, he is being an intellectual snob. Miers may not be "high power think[er]" -- I don't know -- but that's not because she went to #52 SMU.

Posted by: Josh L. | Oct 5, 2005 7:51:26 PM

Perhaps Gerber is mistakenly thinking of the view of many academics that one must go to an elite law school to be a qualified professor candidate. Is that a myth?

Posted by: cwmills | Oct 5, 2005 6:37:44 PM

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