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Tuesday, October 18, 2005
Is Venue a Subject Matter Jurisdiction Problem?
Prof. Bainbridge points us to Harriet Miers' response to the Senate Judiciary Committee's questionnaire. I noticed an interesting passage toward the end (p. 55). When asked about judicial activism, Miers responded in part:
"Beginning during my two years as a Federal district court clerk, I was taught by the judge for whom I clerked, Judge Joe E. Estes, the importance of Federal courts' keeping to their limited role. His first task - and therefore mine in assisting him - in every case before him was to examine whether the case was properly in court. Was there a party with standing? Did subject matter jurisdiction exist? Was venue proper? These were all questions - and all related questions going to whether the court had subject matter jurisdiction - that he wanted answered before any others."
This isn't a terribly huge deal, but I can't see how Miers (or Judge Estes) could have seen venue as a subject matter jurisdiction problem. Standing may be a closer call - depending, as a colleague who teaches federal courts relates - on how you see the standing issue. Perhaps the confusion arises out of the sentence in question, which could have been better drafted.
At the very least, small errors like this should instill confidence that Miers is indeed her own woman and is completing these questionnaires with little overt White House help.
Posted by Dave Hoffman on October 18, 2005 at 03:58 PM in Constitutional thoughts | Permalink
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» Will She or Won't She? from ProfessorBainbridge.com
For a lot of people on both the left and right, the single most important question about Harriet Miers' nomination to the US Supreme Court is whether she will vote to overturn Roe v. Wade or not. Many of these [Read More]
Tracked on Oct 19, 2005 1:48:53 PM
» Details, Details from ProfessorBainbridge.com
Matthew Scully wrote of SCOTUS nominee Harriet Miers that:... Harriet Miers, in everything she does, gives high attention to detail. And the trait came in handy with drafts of presidential speeches, in which she routinely exposed weak arguments, bogus ... [Read More]
Tracked on Oct 19, 2005 6:49:26 PM
» Details, Details from ProfessorBainbridge.com
Matthew Scully wrote of SCOTUS nominee Harriet Miers that:... Harriet Miers, in everything she does, gives high attention to detail. And the trait came in handy with drafts of presidential speeches, in which she routinely exposed weak arguments, bogus ... [Read More]
Tracked on Oct 19, 2005 7:00:49 PM
» THE TROUBLE WITH HARRIET from Michelle Malkin
I have stayed away from the depressing and divisive subject of Harriet Miers for a few days. It was a healthy little respite. But things have taken yet another grim, embarrassing turn--and it is becoming increasingly difficult to imagine that... [Read More]
Tracked on Oct 20, 2005 8:39:18 AM
» THE TROUBLE WITH HARRIET from Michelle Malkin
I have stayed away from the depressing and divisive subject of Harriet Miers for a few days. It was a healthy little respite. But things have taken yet another grim, embarrassing turn--and it is becoming increasingly difficult to imagine that... [Read More]
Tracked on Oct 20, 2005 8:40:46 AM
» THE TROUBLE WITH HARRIET from Michelle Malkin
I have stayed away from the depressing and divisive subject of Harriet Miers for a few days. It was a healthy little respite. But things have taken yet another grim, embarrassing turn--and it is becoming increasingly difficult to imagine that... [Read More]
Tracked on Oct 20, 2005 8:42:08 AM
» Miers Questionnaire, Take II from Outside The Beltway
In a lengthy post early this morning, I argued that, although I still think Harriet Miers unqualified for the Supreme Court, the flap over her answers to the Senate questionnaire was silly.
Now that I have seen the questionnaire (in PD... [Read More]
Tracked on Oct 20, 2005 12:42:39 PM
Comments
My first visit here.......and although i've posted on some other sites more specific reasons why I don't support Miers, in the end, and I know this is harsh..but true.........If this woman is actually too dumb to know she's not qualified......she is definitely NOT QUALIFIED.
Before her nomination, i caught her on C-Span speaking to a group of Republican attorneys about her life at the White House. She was a poor speaker and basically did'nt say much of anything.
The morning I heard she was the nominee, I reacted like Ann Coulter!!
Posted by: claire | Oct 23, 2005 11:34:32 PM
The section at page 56 about her service on the Dallas City Council is both risibly implausible and indicative of muddled thinking. Miers would have the reader envision the Dallas City Council as a hotbed of constitutional analysis ("...we dealt frequently with the legal issues facing the city, and with the legal and constitutional implications of our actions"). She then implies that the City Council adopted ordinances such as the one prohibiting flag burning without much concern about their constitutionality, leaving that to the Courts to sort out: "There was a vast difference between our vote as a policy matter to prevent the descration of the American flag, and the job of the Courts (including the Supreme Court) to rule whether such an ordinance was constitutional."
This tendency of legislative bodies (giving Miers the benefit of her resume-padding suggestion that the Dallas City Council was such a body) to posture in enacting laws which they (especially those of their members who are supposedly Supreme Court material) ought to know are of dubious consitutionality, passing the hard decision and unpopular decisions to the Courts while they score points with the electorate, accounts for much bad legislation. It is depressing to contemplate that Miers, who submits herself as qualified to sit on the Supreme Court, thinks that such behavior is actually a laudable example of the distinct roles of legislatures and courts.
And as others have commented, this is the sort of earnest but sloppy thinking for which we'd have been excoriated and which I doubt we'd accept from our associates.
Posted by: DCS | Oct 21, 2005 10:19:55 AM
Apparently, although "[B]eginning during [her] two years as a Federal district court clerk, [Ms. Miers] was taught by the judge for whom [she] clerked, Judge Joe E. Estes, the importance of Federal courts’ [sic]
keeping to their limited role."), she never was taught the importance of Supreme Court nominees learning the difference between the plural and the plural possessive.
Most of us would not get away with making such mistakes without being excoriated, not to mention terribly embarrassed.
Posted by: JDS | Oct 19, 2005 11:56:08 PM
John: I think I allowed for the confusion in drafting in my post.
I agree with Vic at the Conglomerate that there were many errors of this type in the document. Given the importance of the document, its public nature, and the resources available, even fairly trivial errors are to my mind inexcusable.
But perfectly ok on blogs.
Posted by: Dave Hoffman | Oct 19, 2005 10:50:00 AM
You are reading more precision into the quote than the quote fairly permits. Until the last sentence it's perfectly accurate and precise. Then read the last sentence without the interjection between the em-dashes and it's still perfectly accurate. The issue, then, is whether the interjection refines the beginning of the sentence (a reasonable reading) or if it's an "and" interjection supplementing the beginning of the sentence (another reasonable reading). If the latter it's OK. If the former it's slightly loose talk but hardly worth commenting on.
Posted by: John Steele | Oct 19, 2005 10:26:12 AM
While Paul compares his own litigation record to Miers' and wonders whether he too might be qualified for the Supreme Court, I've had a different kind of speculation, particularly as I sit on my school's appointments committee: Prior to Miers' appointment as White House Counsel, would she have been a credible candidate for a tenure-track faculty position at most law schools? Not mine (low second tier).
Posted by: AB | Oct 19, 2005 10:14:44 AM
What strikes me about her answer to the little judicial activism essay question is the vaguely undignified "first job interview out of college/high school student writing an essay" tone she adopts. Like that importance of words line -- doesn't that just reek of "in my english classes, I learned the importance of expressing myself clearly?"
There's more stuff of interest in that document. For example, check out the end of the answer to question 12c, on page 12: it asks about discriminatory policies or practices, and she just answers policies. I'm not going to read anything into it, but it's amusing.
She's never even appeared before the Supreme Court, or participated in a Supreme Court brief, and has only participated in 3 cert petitions?! She's only argued 7 appeals, 4 of which were in federal court?! (Hell, I've argued 2 federal appeals! In many fewer years. When I get two more under my belt, do I get nominated to the Court??)
On page 51 she says she was a witness in a sex discrimination suit against her firm. For which side, one wonders?
In the middle of the judicial activism essay question ("what I overturned on my summer vacation") she implicitly states her views on "flag desecration." (pg. 56)
Posted by: Paul Gowder | Oct 18, 2005 11:01:24 PM
Edit--in the spirit of "getting the words exactly right," my first sentence should have read:
"I don't think it's an enormous mistake, though if Miers had left off the last (unnecessary) sentence she'd have an unambiguously accurate paragraph."
Posted by: Dave | Oct 18, 2005 6:05:24 PM
I don't think it's an enormous mistake, though if Miers had left off the last (unnecessary) sentence she'd have an unambiguously accurate sentence.
That she stresses the importance of choosing words with meticulous accuracy in same discussion imparts a certain irony:
"[W]ords are vital--whether they are agreed upon by parties or are the product of a legislative compromise. Many times in practice I found myself stressing to clients the importance of getting the words exactly right if their interests were to be protected in the future."
But on the whole, her responses to the survey seem serviceable if not particularly impressive. I didn't know she litigated the 12th Amdt case on behalf of Bush/Cheney.
Posted by: Dave | Oct 18, 2005 6:02:31 PM
Regardless of the error, it's not a very convincing assertion: doesn't every court do at least an implicit jurisdicitonal analysis before deciding a case on the merits?
Posted by: Jeff V. | Oct 18, 2005 5:58:48 PM
How so?
Posted by: Dave Hoffman | Oct 18, 2005 5:39:42 PM
Venue is fairly, in this context, described as a problem "related ... to whether the court had subject matter jurisdiction."
Posted by: alkali | Oct 18, 2005 5:33:18 PM
It also illustrates her kinship with the president: lazy minds misspeak alike.
Posted by: MT | Oct 18, 2005 4:37:46 PM
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