Just because I am tired of this one:
An argument for the idea that a non-judge can be qualified for the Supreme Court is not an argument for the nomination of Harriet Miers, except in the broadest of senses (i.e., non-judges can be good Justices, Harriet Miers is a non-judge, ergo Harriet Miers can be a good Justice–there are substantial components missing from that overly simplistic formulation if one’s goal is to convince anyone of Miers’ qualifications for the bench).
And to numerous commenters: I have never said that one has to be a judge to be selected for SCOTUS. Indeed, my first lengthy post on this issue stated:
I will even say that there is something appealing about the idea of picking someone, as Senator Leahy likes to say, “outside the judicial monastery.” Still, it does seem like an odd place to learn the ropes of the judicial branch, despite the historical precedent. If anything, if one is picking from outside the bench, then I would have preferred to see maybe someone with an academic background, or maybe someone with a prosecutorial background.
BTW, I have yet to see anyone actually take up my challenge to defend the Miers’ pick. I have plenty of people who haven’t liked specific statements I have made on the subject, but they all really just nibble at the edges of my position rather than telling me why I (or anyone else) should support this nomination.
The basic arguments continue to be:
1. Trust the President (which I find to be inadequate on a number of levels).
2. Non-judges can make good Justices (see above).
3. She has had an impressive legal career (so have tons and tons of lawyers, what makes her worthy?)
3a. The “first” litany–president of her law firm, first woman head of Dallas/Texas ABA (so what? How does any of that make her qualified to be on the high court?)
4. Opposition is “elitist” (I have never argued that her law pedigree was relevant, and nor have the vast majority of those opposing her).
5. Opposition is “sexist” (certainly I have made no sexist claims, and I find the accusation wholly ridiculous).
And yes, I know I should stop blogging this subject, but I suspect that I will continue to do so anyway…
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The reason nobody tends to defend her here is that you’re obviously not open to being convinced. Why bother?
The reason for Miers nomination is simple: She’s a very accomplished lawyer that holds many of the same beliefs as the president. Simple as that. That’s the reason for the nomination of virtually every SC justice, indeed many federal court nominees.
Since you obviously don’t put much stock in private sector accomplishments the fact that she began at the bottom and rose to the top of a large professional services organization doesn’t register. That’s big stuff, and is impressive outside the halls of academia. And many people agreed. My guess is her stock portfolio will reflect her accomplishment, exceeding Robert’s $5 million.
In any professional service organization you have only 1 thing to sell, your intelligence and hard work (or is that 2?). She, like Roberts rose to the top of that business. The fact that she didn’t go to the right schools and wasn’t wasn’t promoted by the right “movement conservative” groups (this was the real reason for much of the angst) doesn’t seem to be a big deal outside Washington and academia.
Comment by Buckland — Thursday, October 13, 2024 @ 12:20 pm
Buckland,
I am open to hearing argument in favor of Miers and I appreciate your post.
However, I would note two things.
1) We really don’t know that she shares the President’s views, or, if she does, which views she shares. We may assume this to be true, but this boils down to the “trust Bush” argument, because what public pronouncements do we have that would qualify as confirming her views?
Beyond that, conservative jurisprudence isn’t supposed to be about personal views, it is supposed to be about a particular view of constitution and legal interpretation that may, in fact, override personal views at times. As such, I find the nomination problematic.
2) Her generic profile (success in business) is not, per se, guarantee qualifications for the Court. I know (or least, so it seem, reading some of the comments that have been left) that it is easy to cast me, and others, as simply Ivory Tower Academic types who don’t understand the real world. I have a great deal of respect for the business world and understand what it takes to succeed in such an environment. My own father was a VP and Comptroller of a fairly large multi-national company. I am not wholly divorced from that world.
I do not argue against the idea that it takes smarts and hard work to accomplish what Miers has accomplished. However, that really isn’t an argument for qualifications to this job. There are tons of smart, capable, hard-working people out there, but we should expect some degree of demonstrated capability in the area of constitutional law and some demonstrated thought about appropriate jurisprudence. There is no such evidence vis-a-vis Ms. Miers.
And I would note, I couldn’t care less where she went to school. I further am not concerned about her lack of “movement conservative” credentials.
I will confess to having misgivings about how she may end up voting, but I have deep, sincere concerns about her abilities vis-a-vis the position to which she has been nominated.
Back to the business analogy–one wouldn’t name a full Professor of Constitutional Law to be CEO of a corporation, because even though the person was clearly smart and hard working, that person would not have the demonstrated abilities to be CEO of that company. Smart and hard-working is not enough.
It seems to me, that many who are supporting Miers are looking at this like a legislative election, despite all the discussion of not wanting someone who will legislate from the bench–i.e., they think that Miers will produce the results they want, so they can support her. If that is the case, then really they do want her to legislate from the bench, and all this does is further politicize an already over-politicized bench.
Comment by Dr. Steven Taylor — Thursday, October 13, 2024 @ 12:36 pm
The case for Miers: she’s a sychophant working for a megalomaniac. Welcome to the administration that “creates it’s own reality.”
Comment by HarryE.T.Meyurf — Thursday, October 13, 2024 @ 1:16 pm
Re yr # 3: Neither does it make her less worthy nor unworthy!
Nobody answered the challenge? I offered not one but two defenses, the best being that she was in the game and to valuable to be elevated to a bench when in her late 40s and 50s, the age of the deep Bench Warmers, and this is merely a belated appointment that woulda, coulda, shoulda been made a decade or more ago.
Comment by Henriet Cousin' — Thursday, October 13, 2024 @ 1:28 pm
Upon what do you base that argument aside from pure speculation? It isn’t as if her name has been floating out there as a possibility for decades.
And twenty years ago she hadn’t even done many of the things currently being acribed to her as key elements of her resume.
Comment by Dr. Steven Taylor — Thursday, October 13, 2024 @ 1:30 pm
“Back to the business analogy–one wouldn’t name a full Professor of Constitutional Law to be CEO of a corporation, because even though the person was clearly smart and hard working, that person would not have the demonstrated abilities to be CEO of that company.”
Not a good analogy, IMO. I mean, sure, I wouldn’t appoint a decorated firefighter, of stellar quarterback to be CEO of my company either, despite all their accomplishments. But businesses frequently appoint CEOs that do not specialize in their certain form of business because they are interested in the skillset and worldview that the person brings to the job.
Comment by Terry — Thursday, October 13, 2024 @ 8:55 pm
Speculation represents a guess. So in that my speculation like all the others. It happens to be as good or better a speculation than all the others.
It could be an opinion? An opinion represents a judgment. All genuine knowledge as distinct from mere opiniion is based on fact. It is not speculationor theorizing (educated guessing) up in the air with no feet on the ground. My educated guess based on knowledge and experience suggests Miers name has been “floated” maybe more than once in the past withing the GOP/Bush Administration inner circle. It is a theory that bears exploring?
R/
Comment by Henriet Cousin\' — Thursday, October 13, 2024 @ 9:27 pm
Terry,
I guess the bottom line is I am unconvinced that Miers has either the appropriate skillset or the requisite worldview for the position.
Comment by Dr. Steven Taylor — Friday, October 14, 2024 @ 6:07 am
Realizing that this may seem overly simplistic, the fact remains (as it has since ratification of the Constitution) that there are no per se qualifications to serve on the Court. Technically, you’re every bit as qualified for the job as is Harriet Miers…Or Antonin Scalia…Or John Marshall…etc.
So, any qualifications for the job are either to be inferred from one’s own subjective viewpoints, or to be inferred from historical precedent.
Historically, Miers’ qualifications put her about in the middle of the pack of ALL of the current or former justices. I can’t remember the exact number, but it seems like around 40-45% of the justices who have served were never judges before being on the Court. A few, sad to say, had few qualifications whatsoever, other than being a friend to the sitting president. Only in recent years have we adopted the practice of only naming those who attended one of 2 or 3 Ivy-League schools.
Reading some of the opinions penned by this group, one must seriously question the wisdom of only naming our justices from the ranks of this ‘academic elite.’
So, let’s address your subjective “requirements” for a justice. She’s had success in the real world. Multiple times, in multiple LEGAL jobs, which demonstrates both legal ability and work ethic. Such success is more than could be said about most of the CURRENT crop of justices, and definitely more so than many who have served on the Court in the past.
In all, is she the most qualified person ever nominated to the Court? No, but do we really want to raise the bar each time we nominate a new justice, so that each new one is better-qualified than the one before? This seems to be what is really being required by much of the opposition, but that still isn’t even the real issue, is it?
The nut issue for most conservatives is that they don’t know (1)how she’ll rule on their ‘pet’ issues, or (2)whether she’ll “legislate” from the bench. If these are the biggest issues (and your posts seem to indicate they are), then you really should take a step back, and realize that just the current crop of justices were pulled (mostly) from the ranks of the lower courts, and had reams of prior jurisprudence, and all looked reliable from either a conservative-issues standpoint or a judicial-approach standpoint. How did they work out for the presidents who nominated them?
O’Connor, rather than being either a ‘reliable’ conservative or a constructionist justice, became a moderate swing-vote (nicknamed “she-who-must-be-pleased”), who employed a “pragmatist” approach, which really means no single judicial approach.
Stevens had four years on the Seventh Circuit, from which to come to some sort of a conclusion about his views and his approach, and yet he began a steady shift to the left (or, some would say, the Court shifted further to the right), almost from the day he was confirmed.
Souter, likewise, had a long judicial record, both at the state level and for a short while on the First Circuit Court of Appeals. And, likewise, he has shifted to the left, over time.
In short, if you’re wanting somebody with a track record merely to put your mind at ease about the nominee’s judicial approach or views, you really haven’t watched the Court very carefully. The justices have a tendency to change their views/philosophy, once they get the post.
Comment by Tom — Saturday, October 15, 2024 @ 9:53 am
But my objections are not primarily based in outcomes. I think that the nature of the institution is such that the right thing to do is appoint someone with some substantial evidence of serious thought and consideration of the major issue of the court and, further, someone who isn’t going to have to have three years to get up to speed on how to be a judge.
And, quite honestly, there is nothing that guarantees how any nominee will vote once on the court, track record or not.
Comment by Dr. Steven Taylor — Saturday, October 15, 2024 @ 9:59 am
Well, your mind should be at-ease, then. Just about any law student learns in his/er first year how to write a legal analysis of any given set of facts. This “learning the ropes” of the court doesn’t hold any more water than the “trust the president” argument.
She’s had success AS A LAWYER, which is why your earlier professor/CEO analogy is off-base. She’s worked in the appropriate field for 35 years. Judges come from the ranks of lawyers, after all.
“…I think that the nature of the institution is such that the right thing to do is appoint someone with some substantial evidence of serious thought and consideration of the major issue of the court…”
Why? Is it really so you’ll know that she spends time thinking about such things, or is it so you can know WHAT she’s been thinking? If it’s the former, she may not have spent a great deal of time thinking about such things, because that wasn’t her job at the time. If it’s the latter, then your objection IS based upon outcome.
In either case, since she’s been a lawyer for the past 35 years, she likely has been thinking about many such issues, but as an advocate for one side or another, rather than as an impartial referee between the two. Even this should not give one pause. In order to effectively represent one side of an issue, one has to be aware of the strengths & weaknesses of the other side. This requires a good deal of deep thought about issues. Her success in such endeavors points to one with the overall makeup to be a good legal thinker.
Which, of course, simply leaves judicial philosophy. Will she strictly interpret the constitution, or will she employ some other approach? As I noted earlier, one might as well not ask such questions, since today’s answer is likely to be different from tomorrow’s.
Comment by Tom — Saturday, October 15, 2024 @ 10:19 am
Look, here’s the crux of the situation. Yes, on technical terms (i.e., the Constitutional provisions in Article III), there are no required qualifications to be Justice. By that standard, Miers is “qualified.” By that standard, so is Alexander Rodriguez.
At any rate, as I noted many days ago, there are only 9 seats, and the opportunity to fill those seats is rare, and this is a lifetime appointment.
Given these facts, it seems to me that what we should demand is not simply an adequate or qualified candidate, but an excellent one.
I have seen nothing yet to demonstrate that Harriet Miers is anywhere near the best candidate for this position and I have yet to see any arguments to suggest that she is.
The main resume point in her career that has gotten her to this point is that the President has know and worked with her for a decade or so. That is not a very good reason or process for appointing Justices.
If we were going to crony route, I would have preferred Alberto Gonzales, who at least was on the Texas Supreme Court and has served as Attorney General.
Comment by Dr. Steven Taylor — Saturday, October 15, 2024 @ 10:43 am
Tom wins the debate!
Comment by Henriet Cousin' — Saturday, October 15, 2024 @ 11:09 am
If one is satisfied with the mediocre on the bench, I suppose he does.
Comment by Dr. Steven Taylor — Saturday, October 15, 2024 @ 11:34 am
Of course, it is gratuitous to declare that someone who agrees with you is the winner, don’t you think?
Comment by Dr. Steven Taylor — Saturday, October 15, 2024 @ 11:35 am
I am satisfied that she will be, in cotton grading terms, fair to middling. Describing her qualifications as fair suggests they are neither notably good nor bad, excellent nor poor. Middling implies that they are good, but far from excellent, but describing thems a mediocre gives ground for the inference that they are distinctly less than what one might call good. Second-rate ranks her midway between extremes regarded as first-rate and third-rate–good enough for SCOTUS.
As a debate team coach, I think losers in debate complaining that the judgment was unfair is “uncalled-for.”
R/
Comment by Henriet Cousin\\\' — Saturday, October 15, 2024 @ 3:30 pm
Ah, but I never appointed you judge, you simply assumed the mantle.
And is “fair to middling” what we should want or expect for Supreme Court nominations? Is that really whay you want to argue?
Remarkable.
Comment by Dr. Steven Taylor — Saturday, October 15, 2024 @ 3:34 pm
YAWN! Sorry, did I miss anything? I’ll try to keep this short.
A thanks to Henriet…I’d like to think I did okay…
Anyway, the biggest problem, as I see it, is this: The ‘best’ person for the job, as far as your ideas of ‘qualifications’ and ideology, will likely be unconfirmable. Miers is a good pick insofar as she has little or no paper trail for the democrats to hang their hats on to support a filibuster.
Your idea of Alberto Gonzalez has merit (I like him), but he (like Sam Alito and Priscilla Owens) has too much baggage. Gonzalez would get crucified over the torture memo, no matter how legally correct he was. Alito (nicknamed “Scalito” for his judicial similarity to Scalia) would face similar hardships. Priscilla Owens is likewise ‘unsuitable’ to the democrats, who stalled her confirmation to the fifth circuit for four years.
That leaves the president with something of a dilemma. He can nominate a moderate judge, with the requisite track record that will be confirmable, or he can nominate a Gonzalez, Alito, or Owens, and watch his nominee get ‘Borked.’ Either of these choices is unpalatable.
Or, he can find someone who he knows to be of like mind, but who the democrats would have a hard time filibustering. This would have to be someone who was either never a judge, or who served for a very short time (like Roberts). However, this lack of judicial experience would require that the nominee be qualified in some alternate way, like a proven track record of success in the private sector.
Bonus points if the nominee is either a minority or a woman, since this would make the democrats hard-pressed to fight the nomination.
Comment by Tom — Saturday, October 15, 2024 @ 7:23 pm
I assume you are younger than 50 years otherwise you would have learned by now that the “who died and made you Judge” argument is a childs game in the extreme. I did NOT assume to judge. I, like all grown-ups, purchased the right to judge. The “coin”…by freely submitting to the judgment of others.
R/
P.S. Tom, you make great good sense. My respects.
Comment by Henriet Cousin' — Sunday, October 16, 2024 @ 1:07 pm
All I noted, my friend, is that it is rather amusing that you declare the person who agrees with you the “winner” in a debate wherein I was unaware that we were keeping score. To be a judge one presumes a degree of neutrality.
But then again, I suppose it is ironic that we are now jousting over this point when the fundamental issue is who should be qualified to be the most senior of judges in our system of government.
Comment by Dr. Steven Taylor — Sunday, October 16, 2024 @ 1:19 pm
Jousting over petty points, what else is there to do until the hearings? The game is afoot.
Of course, we keep score–in every way. It is human nature.
Those who take my point about those who judge must submit to the judgment of other will admit that Miers is submitting to so far baseless public judgment of the harshest kind. Ergo, she is paying in the “coin of the realm” for the right to judge from the SC bench. That we must respect.
I acknowledge that I was not arguing generalities of “who” ought to be nominated to SCOTUs, but rather the particulars of the Miers nomination and the public critique of it. My bad.
R/
P.S. I knew you intended no insult with the Clinton remark. ;_)
Comment by Henriet Cousin\\\' — Sunday, October 16, 2024 @ 3:51 pm