Writes Stephen Bainbridge:

Admittedly, I would hate for my blog entries (or even my law review articles) to get this sort of scrutiny. BUT. Harriet Miers’ response to the Senate Judiciary questionnaire is the single most important and consequential (both for herself and the country) piece of legal writing she has done to date.

First off, I agree with Steve in terms of scrutiny of writings–Goodness knows that I have had far more than my fair share of typos on this site, and I have made errors in print. However, I have never claimed, nor had claimed about me, that one of my strengths is attention to detail.

Beyond that (and I think that comma placement is hardy a relevant issues at the end of the day), the thing that really struck me about Steve’s post is the idea that “the single most important and consequential (both for herself and the country) piece of legal writing she has done to date” is this questionnaire. If that fact (and I do think it is an accurate statement) doesn’t underscore her lack of qualifications for this position, then I don’t know what can.

Certainly we should expect a nominee to the Court to have at least something to go on, in terms of assessing legal reasoning and qualifications, than this questionnaire–a document that would normally be largely ignored if Miers had some other obvious qualifications.

5 Comments

1. “Harriet Miers’ response to the Senate Judiciary questionnaire is the single most important and consequential (both for herself and the country) piece of legal writing she has done to date.”

   That it is a writing, of course, there can be no dispute. That it is important and of consequence, well, there could be some dispute. In this case I believe it is of more importance than perhaps it should be, because of the fact that we have so little to go on otherwise.

   But really, to say it is legal writing is rather ridiculous. Answering a questionnaire is in no way comparable to law review articles, briefs, even journalistic legal articles. In other words, unless I mistake the nature and content of the questionnaire, there would be little to no legal research, citation and/or analysis involved. It seems to me to be a bit more like a job application. I could be wrong about this — it may indeed ask difficult legal questions (i.e. what is your position on the incorporation doctrine, or the breadth of the commerce clause, or dogs living in the same house as cats), but I don’t think so. So, to call it legal writing is, in my view, specious.

   Having said that, even if it is just a “job application,” I would want my potential employer to have the best impression of me possible. Miers apparently didn’t accomplish that.

   Comment by Scott Gosnell — Thursday, October 20, 2024 @ 11:02 am

2. Scott,

   But isn’t that part of the point–she has no substantial set of articles, briefs, etc. by which to judge the nomination–unless one counts her column work.

   I take your point, but the deeper point is that we will have to use this document to judge her legal reasoning, when we should have far more to go on.

   S

   Comment by Dr. Steven Taylor — Thursday, October 20, 2024 @ 11:23 am

3. I agree with you on all but one substantive point — if I understand the questionnaire correctly (and certainly, correct me if I’m wrong), it calls for answers to questions that elicit no legal reasoning. It’s like asking me my work history for the last 20 years — I can answer, and it will contain information about my law practice, but it won’t contain any legal reasoning whatsoever, and therefore shouldn’t (in my book) qualify as a “legal writing.” In other words, after reading her answers, I don’t think we’ll know one whit more about her legal philosophy, or even legal reasoning process, than when we started.

   Comment by Scott Gosnell — Thursday, October 20, 2024 @ 12:20 pm

4. I just linked to the text, and to Robert’s responses, so you can take a look.

   On balance, you are correct. However, there is a question of “judicial activism” that requires at least some demonstrated legal philosophy.

   “legal writing” may be the wrong term (although it was used by a Law Prof and quoted by me, not deployed by me). Maybe it wouls be more accurate to state that this document is perhaps the most important that we have that looks into her legal mind, and that underscores the problem.

   Comment by Dr. Steven Taylor — Thursday, October 20, 2024 @ 12:33 pm

5. Also, questions 17 and 18 have the potential to shed some insight on the question of legal thinking.

   Comment by Dr. Steven Taylor — Thursday, October 20, 2024 @ 12:40 pm

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