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Friday, October 14, 2005

On Credentials

Let's look for a moment at what we know about Bush's reasons for nominating Roberts.  I'm talking about stuff that is on the record.  She is a born again woman. . . .  Okay, let me try it this way:

  • Miers is a woman;
  • She is a born again Christian;
  • She is an accomplished attorney;
  • She is very capable and probably smart;
  • Bush trusts her;
  • She worked for him.

Now let's look at some credentials she does not possess and those that are not apparent:

  • She has never worked as a judge;
  • She did not go to a top law school;
  • She has not articulated views on the Constitution and its meaning or general philosophical views about the role of courts and/or the government in society.

Finally, some of the criticisms from some conservatives (above and beyond the list of credentials she does not possess):

  • Her views on important social and legal questions are not clear;
  • She has manifested antipathy (at best) concerning the Federalist Society;
  • She has said and done some things that might raise questions about her commitment to conservative goals and principles;
  • She does not consider the NAACP to be a liberal interest group.

Is there anything I've missed?  (And yes, I realize that there is a lot of overlap within in each list, as well as between them.)

My only thought is that it is possible that she would be an excellent Justice.  But do we really have any reason to think so?  And are the credentials that she does possess actually credentials for this job?  This is not meant to denigrate her, and I'm willing to listen to what she has to say at her confirmation hearings.  I am just trying to figure out why some people do support her, apart for the position taken by some liberals that she is the least bad scenario.

Posted by Hillel Levin on October 14, 2005 at 03:47 PM in Hillel Levin | Permalink


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Hmmm... I am reluctant to get into another lengthy and time-wasting (although interesting) debate with Hillel about nominations, but as a generally conservative attorney who has had a basically positive reaction to the Miers nomination, I am happy to explain why that is.

First, those who haven't should definitely read Stuart Taylor's article in the September Atlantic (http://www.theatlantic.com/doc/200509/taylor) should. Essentially, he lays out the lack of practical legal experience of the members of the Supreme Court. As I see it (and this is off my own understandings, so correct me if I'm wrong): Stevens, Scalia and Breyer came almost entirely from academic and circuit ct backgrounds; Thomas did practice for a short time (I believe in the Missouri State AG's Office, where he met John Ashcroft and Larry Thompson), but had a primarily political background in the Reagan Administration and a short career as a cir ct judge; Souter was a state ct prosecutor and judge, then served for a very short time on the first cir; and Ginsburg was a "public interest advocate" for (and I'm admittedly oversimplifying here) women's rights and speech issues, then served as a cir ct judge. At the time that Taylor wrote the article, only Kennedy had any meaningful non-public arena (i.e. commercial law) practice experience, as a solo practitioner in Sacramento before being appointed to the 9th Cir. Roberts was obviously a partner in a large law firm, but engaged in a very rarified and unusual practice, even within that firm, which is one of a small group that even engages in "supreme court litigation."

So, I came to the Miers nomination annoucement with the general pre-disposition that if someone had told me a year ago, that a future SCt nominee would be the former managing partner of Locke Liddell Sapp (an upper level Texas firm with a national practice) and sitting White House Counsel, I'd have said that those experiences would be very valuable additions to the body of knowledge on the Supreme Court. I'd say that this would be especially true in what I view as the most neglected areas of Supreme Court jurisprudence, which is the commercial law area. The fact that the justices come from such academic/jurisprudential/political backgrounds means that they (and, I would guess, even more so their clerks) are primarily interested in constitutional issues. Those cases seem to take up a hugely disproportionate percentage of the court's time as compared to the caseload of the federal courts, just as the court's focus on the death penalty is far out of proportion to the criminal caseload nationwide (in both federal and state courts). Issues of how to interpret the Clean Water Act, of banking regulatory statutes, or tax laws, could use the same level of attention that the 11th Amendment has gotten; in my humble opinion, those laws and the manner in which they're construed have a far greater effect on the lives of "ordinary" Americans than does the 11th Amendment. So, to me, a practicing lawyer, the idea of someone with a strong practice background in commercial civil litigation is very attractive.

Secondly, as a practicing lawyer, I was somewhat surprised to hear Miers described as "unqualified" (not by your post, Hillel, but by many others). From where I sit, her qualifications are far more impressive than, say, O'Connor's were at the time that she was nominated (pace Emily Bazelon's silly piece in Salon). She is, after all, the White House Counsel -- a job far more "prestigious" than being on a state intermediate appellate court. In fact, I'd say that there's an argument that WHC is more prestigious than a position on a federal appellate court: Ab Mikva left the DC Circuit to become White House Counsel in the Clinton Administration, and I can't think of any WHC's who have taken cir ct appointments (though perhaps someone will know of one that did).

Now, I will certainly concede that much about Miers is unknown, and perhaps that is worrying. That's why we have hearings (and I have always thought that we should have a more open discussion of nominees' views than has been the case since the establishment of the so-called "Ginsburg precedent"). If she lays an egg at the hearings, then that would certainly be a basis for opposing her nomination. But I find her a) qualified and b) from a background that I think is attractive pending further examination via the hearings. She seems to me to be objectively more qualified than, say, Lewis Powell, who had similar private practice experience but without the WHC background.

My question to the George Wills and Charles Krauthammers (two commentators with whom I find myself generally in agreement, though not in this case) would be whether, under their descriptions, there could be appropriate nominees who were not either former professors, former judges, or former members of either the Solicitor General's Office or the Office of Legal Counsel at DOJ? I know that I am opposed to that kind of limitation and feel strongly that more practicing lawyers would be a great addition to the Supreme Court, which seems increasingly cloistered and out of touch with the effects of their decisions (but I concede that I might feel this way because I am more affected by their decisions the more I practice law).

So... that's why I support her nomination, pending her confirmation hearings. For what it's worth, I expect her to do a solid job at her hearings, and because of the preposterously low expectations for her, that will make her seem far more impressive than is actually the case.

Posted by: SG | Oct 17, 2005 12:35:56 PM

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