The Best They Can Do?
Happy Friday.
Harriet Miers's nomination to the United States Supreme Court is a debacle. For starters, contrary to the current administration's belief, her religion is not a sufficient basis for her nomination to the Court. At the very least, such a litmus test violates the Constitution ("no religious test shall ever be required as a qualification to any office or public trust." Art. 6).
More importantly, however, the woman just ain't that bright.
Of all the words recently written about Harriet Miers, none are more disturbing than the ones she wrote herself. David Brooks, of the New York Times, upon reviewing her opinions in the Texas Bar Journal, explains that:
In fact, members of the haughty, conservative Federalist Society are reportedly ready to "launch a coup" at the prospect of Miers joining the Court. As one Happy Friday victim reported, even Ann Coulter -- none too bright herself but capable of at least constructing a sentence in between make-overs -- is outraged at the current administration's attempt to "dumb down America" all the way to the Supreme Court. Apparently, liberal elitism (defined as the desire to have smart people doing important jobs like running the nation and protecting the free world) has its merits when the third branch of government is threatened.
Obviously, the current administration wants to nominate a woman after they failed to do so to replace Justice O'Connor; the first woman ever appointed to the Court. And, again obviously, the current administration wants a nominee who subscribes to their reactionary ideology (anti-evolution, anti-abortion, anti-education, anti-environment, anti-separation of church and state, and oh yeah, pro-guns). But, is Harriet Miers the best they can do?
Surely, there exists somewhere a highly intelligent, female legal scholar deserving of a seat on the nation's highest court who also shares such ideals. Then again, perhaps the problem is no highly intelligent, female legal scholar deserving of a seat on the nation's highest court could share in such thinking.
Perhaps, in that regard, Miers is the best they can do...
Harriet Miers's nomination to the United States Supreme Court is a debacle. For starters, contrary to the current administration's belief, her religion is not a sufficient basis for her nomination to the Court. At the very least, such a litmus test violates the Constitution ("no religious test shall ever be required as a qualification to any office or public trust." Art. 6).
More importantly, however, the woman just ain't that bright.
Of all the words recently written about Harriet Miers, none are more disturbing than the ones she wrote herself. David Brooks, of the New York Times, upon reviewing her opinions in the Texas Bar Journal, explains that:
"I don't know if by mere quotation I can fully convey the relentless march of vapid abstractions that mark Miers's prose and throw aside ideology. Surely the threshold skill required of a Supreme Court justice is the ability to write clearly and argue incisively. Miers's columns provide no evidence of that."
In fact, members of the haughty, conservative Federalist Society are reportedly ready to "launch a coup" at the prospect of Miers joining the Court. As one Happy Friday victim reported, even Ann Coulter -- none too bright herself but capable of at least constructing a sentence in between make-overs -- is outraged at the current administration's attempt to "dumb down America" all the way to the Supreme Court. Apparently, liberal elitism (defined as the desire to have smart people doing important jobs like running the nation and protecting the free world) has its merits when the third branch of government is threatened.
Obviously, the current administration wants to nominate a woman after they failed to do so to replace Justice O'Connor; the first woman ever appointed to the Court. And, again obviously, the current administration wants a nominee who subscribes to their reactionary ideology (anti-evolution, anti-abortion, anti-education, anti-environment, anti-separation of church and state, and oh yeah, pro-guns). But, is Harriet Miers the best they can do?
Surely, there exists somewhere a highly intelligent, female legal scholar deserving of a seat on the nation's highest court who also shares such ideals. Then again, perhaps the problem is no highly intelligent, female legal scholar deserving of a seat on the nation's highest court could share in such thinking.
Perhaps, in that regard, Miers is the best they can do...
posted by Happy Friday | 7:24 AM
9 Comments:
Lots of words and the only "evidence" cited that she isn't intellegent is a David Brooks article and an Ann Coulter column?
And, of course, all of her poorly written opinions in the Texas Bar Journal.
Primary sources not enough for you?
I'm not fan of the choice, but I can't help but take a lot of pleasure from the Right's discomfort. And yes, there are PLENTY of female legal scholars who share Bush's thinking -- Priscilla Owen and Janice Brown, to name but two of the most obvious. But would you really be happy with THEIR nominations? Just asking.
Oh, and that Ann Coulter comment is just plain sexist. It's easy to criticize her about her substance -- I mean, c'mon -- without resorting to comment on her "make-overs", eh?
I'm just sayin'.....
Perhaps the dig at Ann's make-overs is more about her vain hair-flipping and leg-crossing (to say nothing of the mutual flirtation she and Bill engage in when she on Maher's show) than about her gender.
Or maybe it's just about that plastic visage she calls her face.
Well done. Huzzahs for that one.
And if Ms. Anonymous thought Happy Friday's Ann Coulter remarks were sexist, well I can't wait to read the replies to this!
To start, amazing to see Happy Friday speaking well of David Brooks, who despite his word-slinging at the Times, has less than perfect credentials for this Blog. He may even be a (shhhhhhh) . . . Conservative. But, as if that’s not enough, GOP hatchet-woman, Ann Coulter, gets some kudos: she’d probably take the make-over comment as a compliment, though calling her brightness into question could get one called a Liberal, with a capital “L.” Finally – and this is the confusing part – positive words about John Roberts, who was slogged mercilessly on these very page a few months back (It’s Worse Than We Thought, I believe was the message). But enough of Brooks, Justice John & Loathsome Ann. Let’s talk about our Auntie Harriet.
First there’s the Truth behind her nomination. The Word. The Story. The more I read the about Miers, the more I smell a similar view on The Good News behind it. W said he "knows her heart" and "guarantees" she'll be the type of justice the right wants. Do those words sound familiar? Bush IS the man who answered "Jesus Christ, because he touched my heart," or something like that, when asked who his favorite philosopher was.
Bullshit George is clearly doing his "one of my guys" things (Mike Brown, anyone?), even though this guy is a gal. I don't care about the politics or the loyalty. I don’t care of he’s an evangelist or not. I just don’t want her chosen because she’s an evangelist. I want to court to have good people on it. The Best. That's why I never said a negative word about Roberts -- his philosophy and mine are different, but everyone acknowledges his integrity, his smarts and his experience. I'm fine with that. Whine thought they may, the Democrats surely didn’t expect Georgie Boy to tab Dershowitz or Tribe, did they? And hope though we might for a conservative with brains who can write well enough to be published in his own right, we’re never gonna get Easterbrook or Posner. Ain’t happening. Learned Hand never got the call; Posner isn’t either.
But, as Happy Friday alluded to, it’s the Right that’s been freaking out about Miers: Kristol, Will, and others of “The Thinking Right.” I believe they’re pretty damn EMBARRASSED by this nomination. But again, that's the Thinking Right. And I respect them, even if my ideal candidate and theirs differ. But there are still plenty of GOP apologists out there, hoping (against hope) that a smoking gun of substance turns up, haaaaaaanging on before they decide, shilling with the requisite dearth of shame & dignity, putting Harriet on some pedestal she's not fit to stand upon. And as for the Parade of BS coming from the White House on this issue . . . don't even get me started.
But I’m not sure what evidence these Hopers are waiting on. Her name almost never appears on Westlaw searches, indicating limited courtroom experience. As a managing partner type, I can't see her name popping up on the briefs (or internal memos!) underlying those published court opinions. If she wrote law review articles, they'd have turned up by now too. Are they waiting to see a draft complaint in a negligence case? A contracts mid-term from law school?
Nor can I see the hearings showing much. Can a legislator -- facing election at some point over the next 5 years -- afford to sound too wonkish, drilling her on television about her opinion regarding the breadth of the establishment clause, or to what degree it should apply to the states? I'd love to see it, but I'm not counting on it. If she hasn't written about such issues (frankly pedestrian at the Appeals Court level) as an advocate, academic or judge, she shouldn't even be considered.
But now we have seen her advisory opinions as head of the Texas State Bar. And, oh my, are they frightening. A collection of glorified wonk-speak, monstrous constructions of verbs turned into nouns and vice-versa, all in the service of the muddled ideas underlying the words. Or vice versa. As Orwell said:
"You can shirk [the effort to let words express fresh ideas] by simply throwing your mind open and letting the ready-made phrases come crowding in. They will construct your sentences for you -- even think your thoughts for you, to a certain extent -- and at
need they will perform the important service of partially concealing your meaning even from yourself. It is at this point that the special connection between politics and the debasement of language becomes clear." -- "Politics and the English
Language," 1946.
Miers' writing does just what Orwell warned against. No wonder she admires Warren Burger, a judicial mediocrity if there ever was. Perhaps she's just a miserable prose stylist. That's ok; we don't necessarily need, or want, another Cardozo. More likely though, as Brooks suggests, her reasoning skills are weak, her analyses unoriginal. Lack of originality, like lack of artful phrasing, should not disqualify her either. But if we end up with nothing more than a trained chimp, skilled in identifying only those words and phrases from the Constitution's text and filling in the relevant check-box, why not just opt for the chimp? It'll do less harm.
Miers Hit on Letters and the Law
Writings Both Personal and Official Have Critics Poking Fun
By Charles Babington
Washington Post Staff Writer
Saturday, October 15, 2005; A07
Supreme Court confirmation battles usually involve excavations of the nominee's judicial opinions, legal briefs and decades-old government memos. Harriet Miers is the first nominee to hit trouble because of thank-you letters.
Miers's paper trail may be relatively short, but it makes plain that her climb through Texas legal circles and into George W. Bush's inner circle was aided by a penchant for cheerful personal notes. Years later, even some of her supporters are cringing -- and her opponents are viciously making merry -- at the public disclosure of this correspondence and other writings from the 1990s.
Bush may have enjoyed being told by Miers in 1997, "You are the best governor ever -- deserving of great respect." But in 2005 such fawning remarks are contributing to suspicion among Bush's conservative allies and others that she was selected more for personal loyalty than her legal heft.
Combined with columns she wrote for an in-house publication while president of the Texas Bar Association -- critics have called them clumsily worded and empty of content -- Miers may be at risk of flunking the writing portion of the Supreme Court confirmation test, according to some opponents.
"The tipping point in Washington is when you go from being a subject of caricature to the subject of laughter," said Bruce Fein, a Miers critic who served in the Reagan administration's Justice Department and who often speaks on constitutional law. "She's in danger of becoming the subject of laughter."
Blogs are posting satirical Miers correspondence featuring made-up grammatical errors. Via e-mail, authentic Miers quotations have raced around the country, prefaced by derisive comments about her qualifications.
One example, from a May 1996 letter asking George and Laura Bush to appear at a ceremony honoring her, displayed both an obsequious tone and a tortuous prose style. "I am respectful of both of your great many time commitments and I realize you receive many, many requests," she wrote. "Of course, I would be very pleased if either of you is able to participate. However, I will be pleased with your judgment about whether participating in this event fits your schedule whatever your decision. . . . I feel honored even to be able to extend this invitation to such extraordinary people."
This was among the Bush gubernatorial correspondence released this week by the Texas State Library, and posted on Web sites, including the Smoking Gun. Miers was Bush's personal lawyer and lottery commission chairman when he was Texas governor and later became his White House counsel. Her letters have provided recent fodder for sarcasm for writers such as Gerard Baker in the conservative magazine the Weekly Standard. "Miers has delivered some thundering dictums in her various legal and paralegal roles," Baker wrote in a column first published in the Times of London. He cited a 1997 handwritten card that mentioned Bush's daughters: "Hopefully Jenna and Barbara recognize that their parents are 'cool' -- as do the rest of us. . . . All I hear is how great you and Laura are doing. . . . Keep up all the great work. Texas is blessed!"
From the White House vantage point, such commentary is hardly a laughing matter. In part because she does not have a long record of serious constitutional writings -- in contrast to recently confirmed chief justice John G. Roberts Jr. -- Miers may be at particular risk of being turned into a judicial equivalent of Vice President Dan Quayle. Until his stumbling national debut, Quayle had been regarded as a bright senator from Indiana, but he never fully recovered from the initial blast of mockery.
Fair or not, late-night comics have picked up the Miers thread. NBC's Jay Leno suggested the court may need "a woman who's had more courtroom experience, like Courtney Love." CBS's David Letterman envisioned Miers exclaiming as she watched the New York Yankees botch a playoff game: "And they call me unqualified?"
Among those defending Miers is former Bush speechwriter Matthew Scully. In a New York Times op-ed column yesterday he called Miers an exacting writer and lawyer and hailed her "enormous legal ability." Earlier in the week, the Times's conservative columnist David Brooks savaged the columns Miers wrote in the early 1990s as president of the State Bar of Texas. "The quality of thought and writing doesn't even rise to the level of pedestrian," Brooks wrote. Passages he called typical of her "vapid abstractions" included: "More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems."
Fein said he is more concerned about Miers's legal thinking than her syntax, especially as outlined in her three-page letter to then-Gov.Bush on June 11, 1995, when she was the former state bar president. The letter implored Bush to veto a bill moving through the Democratic-controlled legislature that would have prevented the state Supreme Court from capping lawyers' fees.
"This proposed law does violence to the balance of power between the legislative and judicial branch of our State's government and constitutes an assault upon the powers of the Supreme Court" just as it had fallen into "Republican hands for the first time," Miers wrote.
Fein said it is outrageous to invoke separation-of-powers arguments when a legislature -- wisely or not -- tries to foster free enterprise. By citing the GOP's new control of the Texas Supreme Court, he said, Miers seemed to be seeking a partisan outcome on shaky constitutional grounds.
Can This Nomination Be Justified?
By George F. Will
Wednesday, October 5, 2005; Page A23
Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.
It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.
He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.
Furthermore, there is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.
In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."
It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.
The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.
Under the rubric of "diversity" -- nowadays, the first refuge of intellectually disreputable impulses -- the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation. Identity politics holds that one's essential attributes are genetic, biological, ethnic or chromosomal -- that one's nature and understanding are decisively shaped by race, ethnicity or gender. Categorical representation holds that the interests of a group can be understood, empathized with and represented only by a member of that group.
The crowning absurdity of the president's wallowing in such nonsense is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing Miers, deplored judges who "legislate from the bench."
Minutes after the president announced the nomination of his friend from Texas, another Texas friend, Robert Jordan, former ambassador to Saudi Arabia, was on Fox News proclaiming what he and, no doubt, the White House that probably enlisted him for advocacy, considered glad and relevant tidings: Miers, Jordan said, has been a victim. She has been, he said contentedly, "discriminated against" because of her gender.
Her victimization was not so severe that it prevented her from becoming the first female president of a Texas law firm as large as hers, president of the State Bar of Texas and a senior White House official. Still, playing the victim card clarified, as much as anything has so far done, her credentials, which are her chromosomes and their supposedly painful consequences. For this we need a conservative president?
And it gets even worse. A letter that she wrote to Bush in 1995 (when he was Gov of Texas), in her capacity as Texas Bar Head, urging him to veto a bill that would give the legislature power to regulaye attorney's fees is another trainwreck. The letter is only in PDF from what I've seen, but here are the final two paragraphs. Yikes:
"The passage of this proposed law squarely raises the issue of the special interest laws [sic] for the benefit of those who have the wealth and power to cause to be passed self-protective legislation. What possible justification can exist for this law? There may be attempts to explain or provide justification. Those of us who are knowledgeable about the legal community know that this law is a special interest bill to protect from legitimate scrutiny and regulation individuals in our state perceived to wield power and influence.
I respectfully suggest that this law should be vetoed. It is bad, indefensible policy. Additionally, I feel confident it will never work and those involved in its promulgation will be smeared with legitimate criticism for a blatant attempt to shield, protect and curry favor with interests that have brought shame on this state, badly hurt our economic development efforts directed at creating jobs and continue to this day to cause our state to be held in disrepute for 'justice for sale.'"
"cause to be passed self-protective legislation"??? Not likely to see that one in your 1L case book, huh?
Post a Comment
<< Home