October 16, 2005

Today's Miers Thoughts

by PG

1) I'm annoyed that people underestimate Harriet Miers due to her Texas affiliations, but I'm also concerned by potential excesses in Texans' circling the wagons.
2) I'm sorry to see Miers's being mocked, but I think the White House is partly responsible because the dearth of information is leading people to seize upon whatever is available.
3) Statutory interpretation comes up more often in Supreme Court cases than constitutional interpretation does, but one can, and as an admired judge generally does, have a theory for the former as well as the latter, and preferably one that is consistent between both.

For the links and extended discussion, see below.

1) As a person raised in Texas and still half-hoping to live in Austin someday, I'm familiar with the phenomenon of people from areas distant from Texas assuming that if something is in Texas and not football nor barbecue, it must be inferior. I saw it most recently when deciding between Georgetown and UT for law school last year, with well-meaning advisors telling me that I wouldn't get recruited by big non-Texas firms if I went to UT, and wondering how I could even be considering UT over Georgetown, despite Texas's having a better-ranked faculty.

The assumption that Miers couldn't have gone to a higher ranked school than SMU -- in particular, Ann Coulter's imbecilic LSAT comparisons to Harvard -- is a particularly ill-founded one even in an array of ill-founded assumptions. At the time of application, Miers was dealing with a difficult family situation, including illness and economic difficulties, so she may well have opted for the best local law school that gave her a scholarship instead of deserting her family and going into debt to attend another school.

Someone asked me what the opinion of lay liberals was on Miers, and I had to admit that the only person I'd read was Molly Ivins, who is mainly concerned with the abortion issue and thus considers Miers comparable to John Roberts and better than Edith Jones or Priscilla Owens. Ivins, herself a Dallas girl who has dealt with Coastal snobbery, was not likely to jump on the elitist bandwagon, and her view strikes me as sensible for a person with limited education and interest in the process of a candidate's constitutional theory rather than just the results thereof. Like Miers, Ivins also is a successful unmarried woman, and probably will stay off the weird Dowd/ Brown train of second-wave feminism that assumes Miers must have sacrified her personal life for her career.

However, this kind of reluctance to bash someone who shares characteristics with oneself also impedes me in assessing what the people who interacted with Miers before she disappeared into the White House really think of her abilities. With folks like Beldar justifiably asserting that their personal knowledge of players on the local legal scene enables them to speak more authoritatively about Miers, young Texpatriates like myself are left shrugging, "All right, your interpretation of publicly available documents must be more accurate than mine, so what's the point of trying to form any independent opinion if it all relies on how well acquainted I am with Texas judges?"

Texans are pretty conservative -- even the Democrats -- as demonstrated by former Texas chief justice John Hill, who was sent to the Democratic convention in 2000 as a Bush supporter, and now has been recruited for the selling of Miers. Layered atop their friendly feeling for Miers as a fellow Texan is some attachment to Bush and a defensiveness about non-Texans' superior attitude to Locke Liddell, SMU, the Texas Bar Association and every other institution with which Miers associated until 2001. How one digs under all this to get a genuine evaluation of Miers as a potential Supreme Court justice is more than I can compass.

2) The Washington Post reports that Miers is being ridiculed for her personal correspondence, and I can corroborate that people are making fun of her telling Bush, "You are the best governor ever." This is petty, and hardly indicative of Miers's legal writing ability; I wouldn't want my average blog post, much less courtesy correspondence, to be taken as an accurate test of how I'd compose a brief, memo or judicial opinion. In contrast to Miers, however, I do have writing samples of mock briefs, memos and even a judicial opinion (albeit one written five years ago for an undergraduate course) available for the perusal of those concerned about my writing ability. Aside from a horrifying moment a couple of weeks ago when I realized I'd been giving possible employers a moot court brief that included the phrase "primo facie," I've felt reasonably secure that these samples reflected well on me.

While someone still might have asked the Texas State Library to release personal correspondence, and some people probably would have taken the same jabs, much of the absurd attention given to this writing is born of frustration that there's nothing else being made public. If I refused to give firms a writing sample and they weren't able to dismiss me as a candidate for that refusal, they'd probably take to Googling me and digging up every blog post and undergraduate op-ed they could find -- which, taken by and large, don't come off nearly as well as formal work. The cases available on Westlaw in which Miers was counsel provide quite limited information on what kind of attorney she was, and the White House shows no signs of releasing any of the work she did for Bush. Free that information, and in the rush to analyze it the thank you cards will be forgotten by all except Leno and Letterman.

3) Juan Non-Volokh says,

Reading some of the commentary on Miers' qualifications (or lack thereof) to be a Supreme Court justice, one could get the impression that a fully formed theory of constitutional interpretation is the most important, if not the exclusive, qualification for a prospective Supreme Court nominee. I think this view is mistaken. Indeed, if anything the current Court, as a whole, lacks significant experience in many other areas of law that are just as important to the Court's work.
He goes on to note that constitutional law not only is required in few cases, but also that it does not necessarily have a greater impact on Americans' lives than the other decisions.

In comments, the main point being made is that constitutional law is particularly important because it cannot be overturned by the legislature. If the Court misinterprets a statute, Congress can pass corrective and clarifying legislation; if the Court misinterprets the Constitution, we must wait for amendment or a change in the Court's own decision. (And when Congress does try to correct the Court's constitutional interpretation, its legislation gets slapped down with another judicial decision.)

This is at least technically true, though in practice Congress doesn't seem to do much correcting. Another problem with Non-Volokh's argument that I saw was not addressed in comments, and that is the degree to which justices have theories of statutory intepretation as well as constitutional interpretation. These perhaps break down less obviously into conservative and liberal camps -- though even constitutional law isn't that simple, as we see with Scalia's seemingly liberal views on U.S. citizens captured as terrorists and criminal defendants' rights -- but I think there is at least as much consistency there as elsewhere. If one considers the intent of the people who wrote a constitutional provision to be relevant, then presumably the intent of people who wrote a statute is as well.

One example Non-Volokh gave of a non-constitutional issue that the Supreme Court must consider is "the proper standard of review in an antitrust case." The last SCOTUS antitrust decision I read was unanimous in its holding, but split in the reasoning. Scalia wrote for a majority that included Ginsburg, Breyer, Kennedy, O'Connor and Rehnquist; Stevens for himself, Souter and Thomas. Scalia asserted that a breach of the Telecommunication Act did not make for a claim under the Sherman Act, and that the Court was not going to extend Aspen Skiing. Stevens said there was no need to make decisions about whether the company's actions provided ground for a Sherman Act claim, because the person attempting to make it lacked standing anyway.

Where would Miers likely fit in this division? for that matter, where would John Roberts? I don't think we need to know whether they lean more toward Scalia's "let's going ahead and get this clear" or Thomas's "it's none of our business" model, or perhaps would have written their own concurrence or even a dissent. However, that our justices have a consistent and hopefully discernable way to decide similar cases seems to me desirable, and whether work as an advocate -- where one makes whatever argument is most likely to forward the client's interests -- helps one to develop such approaches is not clear.

October 16, 2005 05:25 AM | TrackBack

I'm not sorry to see her being mocked. It's great stuff.

Posted by: Ruth at October 18, 2005 10:18 PM

I have to admit that I feel bad for Miers on a personal level, but then I realize that she decided to accept the nomination. A seat on the Supreme Court is probably the second most powerful position in the Federal Government, perhaps even the first if you consider the longevity of a life-time appointment. To go into that with minimal tangible evidence that she is capable of making decision that determine the future of this country is an embarassment to the people that the government is meant to represent. She should be publicly shamed for her lack of preparation as a whipping-boy for this lousy administration.

On the other hand, as a liberal (could you guess?) I'm not so sure that maybe the left isn't dodging a bullet here. There is minimal evidence to suggest that Miers is going to turn out to be radical conservative voice on the Court, making it likely that she could serve as the moderate balance that the Court so desperately needs.

Its a tough call. I'm not sure if I am more comfortable with an utterly underqualified unknown or a rabid conservative who has shown that he/she is up to the task of dealing with this country's debates in an intelligent manner, even if I don't agree with them.

Posted by: Fletch at October 20, 2005 08:16 PM

"Its a tough call. I'm not sure if I am more comfortable with an utterly underqualified unknown or a rabid conservative who has shown that he/she is up to the task of dealing with this country's debates in an intelligent manner, even if I don't agree with them."

The personal mockery is a bit much, but I think that is more directed at GWB then at HM (even if her reputation has been absolutely shredded as sort of collateral damage).

As to what the Dems should do when faced with the quandry given above, I've thought about it. I'd much rather have a brilliant and talented person with whom I disagree on just about everything (wait, that's John Roberts...) then a simple hack (no offense to Ms. Miers intended. Being described as a 'hack' when being considered for a SCOTUS post is sort of like being the worst player in the NBA.)

Why is this? I'm not really sure. Maybe I have faith that even my staunchest opponent, if he or she has the principles and the patience, can be persuaded to see reason. If I can't convince them, that's my bad. By comparison, what could I possibly say to change the opinion of a political 'results driven' justice?

Posted by: Pooh at October 21, 2005 09:04 PM

I wonder if Miers is merely a straw man? That is, did Bush nominate her with the expectation that she would not be confirmed, opening the door for him to nominate someone else? And would that someone else be more conservative, or more moderate?

Posted by: Jeremy at October 22, 2005 08:53 PM
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