New at Reason

Julian Sanchez | October 6, 2005

Is the guy from Memento the ideal Supreme Court nominee? Not so, says Tim Cavanaugh.

Comments

|10.6.05 @ 9:21AM|#

"To praise John Roberts as a sterling conservative choice and damn Harriet Miers as a cypher is fantasy."

Indeed. Moreover, the two Court nominations pretty much emblematize the status quo of Affirmative Action in the USA: to get a shot at Santa Claus a white man must show sterling credentials, whereas a woman or minority doesn't, at least not to the same degree.

That's the way it is (as a well-known MSM anchorperson never failed to remind us).

|10.6.05 @ 9:37AM|#

Good article. This didn't sount right, though:

"The main difference between the two is that Miers is a woman and didn't attend an elite school�and both complaints have been getting remarkably open play in the last few days." Roberts' decades of service as a White House lawyer is a lot more impressive than Meirs' background.

polt, I'd put Ruth Bader Ginsburg's credentials up against any recent nominee. Perhaps you were referring only to Republcan nominanations?

Dave W.|10.6.05 @ 9:47AM|#

Actually, the guy in Memento left a paper trial, a big one. Its just that the man leaving the trial never had the context to make sense of it. It is probably a coincidence that Memento-man's advice and consent guy was named Teddy.

On the subject of context: thanks to H'n'R for the link to the 1993 Prof Lessig article re constitutional interpretation and context, although I am only halfway through it. Once again, Larry was way out ahead of the curve.

Dave W.|10.6.05 @ 9:51AM|#

Unless both were named after Theodore Roosevelt -- then its more homage than coincidence.

|10.6.05 @ 10:00AM|#

Specifically, I think the concern is that conservative nominees must have no paper trail. If you are a nominee who has a long history of upholding current law and whatever the hell congress wants to do, you are not in danger of getting Borked. Conservatives didn't filibuster Ginsberg. What must be absent is evidence that you would change anything whatsoever.

gaius marius|10.6.05 @ 10:08AM|#

fwiw, i think bush is compelled to nominate these two -- they (roberts and miers) are ideal candidates for him.

they're both personally loyal to the bush clan -- miers obviously so, but roberts too has had his fortune interwoven with the bush family since 1982. bush, as we know, is psychopathic about loyalty and betrayal.

but also -- the lack of a paper trail lifts from the immaculate mind the repulsiveness of examination. what can she be criticized for on juridicial grounds? there is no evidence -- anything an opponent could raise would be either speculative or out of the relevant field. neither has any public philosophy at all -- roberts refused even to begin to address his philosophy, and miers will too.

and this is because if there's anything bush is more averse to that betrayal, it is questioning. politics for him is not about discourse; it is about staying on message. his career is the latest triumph of d'annunzio. when one considers oneself not to be part of a discourse but Correct with the untouchable imprimateur of the holy, questioning IS betrayal -- and the immaculate mind cannot suffer it.

i agree that court nominees needn't be blank slates. but i agree with mr cavanuahg that bush is compelled to nominate blank slates. he may not even want to -- but the prospect of his ideology being subjected to an extended and thorough public examination is total anathema.

this is a theme that has run through this white house from the start. it's a conservative reaction to the trauma of nixon and watergate, and completely dominates the nixonian personalities of secrecy-mad white house icons like cheney and rumsfeld. it is the common ground bush shares with them more than any other, imo -- cheney and rummy come there from nixonian trauma, bush from simpleminded ideological conviction, but there they all are.

|10.6.05 @ 10:08AM|#

Ligon: except RvW, of course...

|10.6.05 @ 10:18AM|#

Jason, "Conservatives didn't filibuster Ginsberg. What must be absent is evidence that you would change anything whatsoever."

So the theory here is that Ginsburg would have sailed through confirmation just as easily if she'd worth a "I'm going to overturn sodomy laws" tee shirt to her hearings. Bzzt.

|10.6.05 @ 10:19AM|#

It's a method that worked for him as far back as his Texas apprenticeship, where he came on as humble as Uriah Heep,

I spy a typo- that should be: 'umble as Uriah Heep.

Dave W.|10.6.05 @ 10:24AM|#

Good thing the Plame indictments are coming so soon. You may not be able to ask Miers how she will decide cases, but I don't think there is any problem with the Semnate asking whether she will decide cases where she is buddies with, or shared an atty-client privilege w/, this or that defendant.

|10.6.05 @ 10:27AM|#

joe, i guess RBG's credentials are impressive if you put a lot of stock in the ivy league and academia. so how come with all that book learnin' she can't tell the difference in a public use and a public good? Harriet Miers' resume isn't thin, just different, and she may be the hardest working woman in law business.

|10.6.05 @ 10:31AM|#

Paul, you don't get to dismiss someone as "unqualified" because she ruled differently than you would have liked. That's just childish.

I think the title "the hardest working women in law business" should probably go to somebody running a Legal Aid office. You think Miers ever showed up at a police station at 3 in the morning?

|10.6.05 @ 10:33AM|#

paul,

I can just picture the Miers' Dolly-Parton-esque "Workin niiine to five" montage...

I wasn't aware that "hard worker" is a requirement for sitting on the bench. If I was going to have brain surgery, and I had to choose between the "hardest working" surgeon and the "best and most skilled" surgeon, well, I think we all know which choice we'd make.

One would think that having been a judge in the past might be a pre-req for being the most powerful judge in the land, but I digress.

This isn't about resumes, it's about paper trails.

Dave W.|10.6.05 @ 10:36AM|#

You think Miers ever showed up at a police station at 3 in the morning?

Sure. Whaddya think the first family has stopped doing coke or drink driving?

On SCOTUS I would prefer hard workers to smart workers, but if we push the Bush family to hard here, we lose R v. W, Joe.

|10.6.05 @ 10:44AM|#

joe,

please spare us the liberal boilerplate! You're fooling yourself when you think that the double standard in admissions, promotions, and appointments would not be bipartisan and universal. In that sense Bush's nominations pretty much "look like America".

There are exceptions of course but RBG was not too far from the norm: good credentials, sure, but hardly the best person then available.

gaius marius|10.6.05 @ 10:51AM|#

if you put a lot of stock in the ivy league and academia

much better to put your faith in kennebunkport ivy leaguers who mimic texas rednecks by using words like "strategery". :)

|10.6.05 @ 10:51AM|#

joe i didn't say RBG wasn't qualified, but you're right, i do think she and the majority were wrong on Kelo.

|10.6.05 @ 10:53AM|#

I don't think we've ever gotten the very, very best individual available. I'm not even sure if it's possible to establish a rigorous and objective ranking.

But sometimes we sample from closer to the top of the talent pool. Other times we sample somewhat lower in the talent pool.

|10.6.05 @ 10:57AM|#

I should clarify: I don't know if it's at all meaningful to say who the #1 best person out there is, who the #2 best is, etc. But it's somewhat easier to sort the talent pool into tiers. Sometimes we get somebody from one of the higher tiers. Other times we get somebody from a middle tier. And politics and personal factors always play a factor, of course.

The difference with this one is that we seem to have sampled from a lower tier than Roberts was in, and personal factors seem to have played a significantly larger role.

It may very well be that she's significantly better than many of her predecessors over the past 200 years. But she has the disadvantage of being picked immediately after Roberts.

|10.6.05 @ 10:58AM|#

gaius, i'm a real Texan. are you a Roman are do you just mimic one?

gaius marius|10.6.05 @ 10:59AM|#

i think the primary problem isn't miers' qualifications -- she knows a little about the law and a lot about politics, which is all you need.

and as far as paper trails and ideology go, it's a masterstroke by the bush camp to install two slaves on the court without a whimper from congress.

it's about the dangers of putting people like roberts and miers on the court for reasons of loyalty/cronyism. just because it's been done in the past doesn't mean it's good or safe. in the end, the intense personal connections of these two, in combination with an "originalist" philosophy which boils down to radically expanded rousseauian executive power and the potential of a dynastic succession in 2008 in brother jeb, can spell the outright end of an already severely weakened republic.

gaius marius|10.6.05 @ 11:00AM|#

are you a Roman are do you just mimic one?

just mimic, mr paul. :)

you are from texas? tell me -- how is miers publically perceived down there? i understand she's got a reputation for being a crazy baptist fundie.

|10.6.05 @ 11:08AM|#

i didn't know she was a churchgoer until the recent articles. i've dealt wih her and she has a reputation for integrity (she was very generous to me so i'm not all that objective about her). i don't think her church is baptist.

|10.6.05 @ 11:09AM|#

The only thing that even raises a flag for me is that she is so obviously loyal to the Bush clan. As someone said yesterday, any Capo would love to choose the Judge that will hear his case.

The questions about qualifications/tiers/etc. are all irrelevant to me. Picking two very qualified recent Justices, Scalia and Marshall, you can see people who have very high self-esteem but are incapable of admitting that they might have been wrong. Scalia loves original intent, but not w/r to the drug war or the 4th and 9th amendments. Marshall thought the Constitution meant whatever he wanted it to mean.

I'm not a fan of either of them to any great extent - but they were (are) both very highly qualified. To which I say "so what?"

In some manner, I'm actually happy that W appointed "his horse" - maybe people will finally stop seeing the federal government as some sort of super-qualified expert on all subjects capable of telling you how best to live your life. Maybe with Iraq, Katrina, and Miers, we're reaching the point where Toto is pulling back the curtain...

|10.6.05 @ 11:20AM|#

polt,

"You're fooling yourself when you think that the double standard in admissions, promotions, and appointments would not be bipartisan and universal. In that sense Bush's nominations pretty much "look like America"."

I think Bush's, and Republicans' in general, minority nominations tend to be much less impressive than Democrats'. The simple fact is that there are lot more people who aren't white men in our party. When the Republicans decide to appoint a woman or minority, it is almost always tokenism - meaning, they have to reach pretty far down on the talent scale, because they have so few options to being with. Now, as Janice Rogers Brown and Sandra Day O'Connor demonstrate, this isn't a universal. But it is a pattern.

Marshall vs. Thomas.

Ginsburg vs Miers

JC Watts vs Chollie Rangel

Hillary Clinton vs. Elizabeth Dole (and Dole is probably one of the most talented Republican woman politicians).

Alberto Gonzales vs. Bill Richardson

Anybody seeing a pattern?

When Democrats draw up a list of the ten most talented, qualified people for a position, there are minorities and women on it. If Republicans want to get minorities and women (less so women, but still) onto a top ten list, they often have to lower the standards. We've got a deeper bench.

|10.6.05 @ 11:22AM|#

I'll note that the most obvious counterexamples to the above, Powell and Rice, came up not through the political branches, where the parties have the greatest influence, but through the military and academia.

Dave W.|10.6.05 @ 11:23AM|#

Too bad your presidential candidate was from the shallow part of your pool, instead of the deep part.

|10.6.05 @ 11:39AM|#

joe,

no doubt that Thurgood Marshall was an impressive person and a great lawyer, but he wasn't exactly a superstar when it comes to legal reasoning. Clarence Thomas is less personable but by no means a dud in comparison.

As to the rest of your short list: Pu-leeze!!!

RBG vs. Miers: remains to be seen; Watts vs. (De)Rangel: pot, kettle, black; Hillary: you have to be joking! Gonzales vs. Richardson: hard to say, probably a tie.

Back to your bench, pal! Try again!

|10.6.05 @ 11:46AM|#

"Anybody seeing a pattern?"

Is the pattern that you prefer liberals? Otherwise, no.

|10.6.05 @ 11:49AM|#

polt,

Without venturing an opinion on Marshall vs. Thomas as judges, it is clear that, at the time of their nominations, Marshall was a towering legal figure of national standing, and Thomas was...not.

"Watts vs. (De)Rangel: pot, kettle, black"

Oh no he didn't! Oh no he didn't! Were I an English teacher, you'd find the letters WC next to this item. ;-)

Seriously, you might not like Rangell, politically or personally, but he has a much sharper mind than JC Watts, who induced cringes when he spoke on television.

Just looking at their terms in the Senate, Hillary Clinton has distinguished herself far more than Liddy Dole. Hillary could well win the next Democratic nomination, on her merits, whereas Dole captured absolutely nothing outside of the miniscule body of vote-for-any-woman Republicans.

Gonzales is a complete lightweight, who wrote the most transparently wrong legal opinion anyone has ever seen in his torture memo, making an absurb misreading of a statute in order to claim that only "pain equivalent to death or organ failure" counted as torture, when the statute in question obviously defined it more broadly.

|10.6.05 @ 11:51AM|#

Dave W, John Kerry is kindest, smartest, bravest, most decent man I have ever met.

heh

Seriously, he is perhaps the deepest among national Democratis in talent and intellect. You saw the debates. He's just not much of a charmer is all.

Dave W.|10.6.05 @ 12:10PM|#

Actually, I didn't see any of the debates. Kerry may have intellect, but he didn't seem to have much political talent, or at least not the kind that plays nationally. Still, my comment is out of line because you guys did have a white guy with talent. I think he's a fundraiser now or summat.

|10.6.05 @ 12:12PM|#

He came within three points of unseating a sitting president during time of war, when the war was stilly pretty popular.

That's not bad.

Dave W.|10.6.05 @ 12:27PM|#

On the other hand, he was the first prez cand, from either party, to lose the pop vote to a chimp.

Larry A|10.6.05 @ 12:33PM|#

When Democrats draw up a list of the ten most talented, qualified people for a position, there are minorities and women on it. If Republicans want to get minorities and women (less so women, but still) onto a top ten list, they often have to lower the standards. We've got a deeper bench.

<Flash> I agree with Joe.

Minorities who share the Democrat philosophy believe in government solutions, and therefore participate in the political process building the credentials Joe sees as prerequisite for office.

A problem for Republicans, and the major problem for Libertarians, is that most who share their philosophies, particularly the minorities who buck the trend to join them, are doing something useful with their lives.

Where is it written that the only good candidates for SCOTUS must grow up in the hothouse world of the courtroom?

Dave W.|10.6.05 @ 12:38PM|#

Where is it written that the only good candidates for SCOTUS must grow up in the hothouse world of the courtroom?

Same reason FEMA heads are expected to have disaster management experience. THe subject matter is difficult and arcane. You need to be able not just to vote the correct way, but also to write opinions about why the justices who oppose you are incorrect. Being a CEO (which Miers basically was) does not qualify you to do this because you actually need to know some ivory tower, navel-gazer type things.

|10.6.05 @ 1:20PM|#

Since joe brought up Hillary Clinton and Elizabeth Dole, consider that while both are lawyers married to prominent politicians, they have very different resumes:

One spent several years in various White Houses, several years in lower posts in various executive agencies, 2 stints as a Cabinet Secretary, and then she ran the Red Cross for several years. Now she's a Senator.

The other spent some time in DC early in her career, then spent a long time in private practice. She left law practice to serve as First Lady. Now she's a Senator.

Going strictly by the resumes, leaving aside ideology for the moment, which one sounds more impressive? Which one would you consider more qualified for one of the highest posts in our government?

Me, I'd take Dole. joe, what about you? Do you really think Clinton's resume is more suitable for the Presidency? What about Supreme Court?

What about everybody else?

|10.6.05 @ 2:01PM|#

"So the theory here is that Ginsburg would have sailed through confirmation just as easily if she'd worth a "I'm going to overturn sodomy laws" tee shirt to her hearings. Bzzt."

Yes, she would have sailed through without filibuster. I don't think a single person involved in that process thought that RBG would be just fine with sodomy laws. She was a known liberal jurist.

|10.6.05 @ 2:02PM|#

OK, when you put it like that, I guess that was a bad example. Dole just comes off as a lightweight, but she does have an impressive resume.

She invented the third brake light.

|10.6.05 @ 2:04PM|#

OK, Jason, but doesn't that contradict your earlier statement about nominees who want to change the big, bad, statist staus quo not being confirmable?

|10.6.05 @ 2:29PM|#

"Seriously, he is perhaps the deepest among national Democratis in talent and intellect. You saw the debates. He's just not much of a charmer is all."

I saw the debates. I don't know what you saw, but I didn't see anything impressive.

Q:"What are you going to do about Iraq?"
A:"Be so charming that everyone will help us out."

Q:"What should we be doing about homeland security?"
A:"Every container that enters the US needs to be inspected. It is appalling that we don't do so now."

Q:"You sure have declared a lot of spending priorities. Are you going to raise taxes?"
A:"I believe in Paygo, but I won't need to raise taxes. If I roll back the tax cuts, we will have milk and honey running down every street in America."

There wasn't a lot credible there.

|10.6.05 @ 4:09PM|#

"OK, Jason, but doesn't that contradict your earlier statement about nominees who want to change the big, bad, statist staus quo not being confirmable?"

Eh? I think we may be talking past each other. I'm now confused as to why you're confused. To me, the status quo is characterized by a very high deference to congress, not so much deference to states, expansive views of public welfare and commerce - stuff like that. I'm suggesting that anyone who is a danger of interpreting key arguments differently (i.e. there is a limit to what commerce entails) will face filibuster at a minimum. The people who want to do this are largely conservatives, ergo conservative appointees tend to face a problem liberal appointees don't.

Larry A|10.6.05 @ 6:59PM|#

Dave W:THe subject matter is difficult and arcane.

The subject matter of most SCOTUS cases is the Constitution of the United States, which is neither.

You need to be able not just to vote the correct way, but also to write opinions about why the justices who oppose you are incorrect.

IMO Given recent history, a majority of the present justices flunk the first part. Anyone who can compose a standard essay in English can accomplish the second.

Dave W.|10.6.05 @ 7:43PM|#

Larry A:

For the next class, you are assigned the Blonder Tongue case. Be sure to let us know if you think the correct party prevailed. Not every Supreme Court case looks like that, but a lot do.

Here's the link:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=402&page=313

|10.6.05 @ 8:50PM|#

The subject matter of most SCOTUS cases is the Constitution of the United States, which is neither.

Keep in mind that in addition to the dozen or so high-profile and heavily politicized cases that they hear every year, they hear 70 or more cases that involve reconciling different interpretations of vague statutes, arcane tax code questions, obscure matters of contract law, maritime jurisdiction, and all sorts of other weird things.

The 1st, 2nd, and 3rd Circuit Courts of Appeals rule that a statute is to be interpreted one way, the 4th and 5th Circuit Courts of Appeals interpret it another way. The Supremes have to iron it out in a manner that's both reasonable and also consistent with prior precedents and all of the other laws on the books. Most of these obscure cases are decided 9-0 or 8-1, so there's no ideology involved. But it takes a really smart lawyer to write a good ruling that will not only resolve the issue at hand, but hopefully also make things easier in the future so the Court doesn't have to revisit it.

If all that they ever did was decide whether pot is interstate commerce and abortion is protected by the Bill of Rights I'd concede that anybody with a decent college education should be able to do the job. But a lot of it is much more involved than that.

If anybody here is convinced that he's smart enough to write a ruling that is consistent with the Constitution's language on maritime law, and also consistent with duly ratified treaties, duly enacted legislation, traditions of maritime law, and previous rulings, well, go ahead and send in your resume if the Senate rejects Miers.

|10.7.05 @ 3:07PM|#

People who proclaim that Constitutional law is so gosh darn easy, that the Justices must be idiots for ruling differently than they'd like, belong in the same circle of hell as people who look at a Jackson Pollack painting and say, "Shoot, my five year old could do that!"