Hard of Hearings

Julian Sanchez | October 10, 2005

Along with the conservative critics making full-throated calls for the withdrawal of Harriet Miers' nomination seem to be no small number who're dubious, but keeping an open mind until the hearings. If their concern is just whether she'll vote the way they want on a few hot-button issues, that might make sense, at least if Miers' testimony represents a departure from her longstanding reputation as an utter cipher. On this question, hearings can act as a (poor) substitute for a paper trail. But for those concerned about her qualifications, this seems bizarre. Hearings—even multi-day hearings—cannot reasonably be expected to act as some kind of massive, high-stakes ConLaw exam. Even with some well trained lawyers posing the questions, I very much doubt the sort of answers that emerge from these kind of Q&A sessions would reveal the difference between, say, a bright law student and a deep jurisprudential thinker suited to deliver the final word on complex questions that have left lower courts conflicted. For that, you need the paper trail—not soundbites, but lengthy examples of a nominee's constitutional reasoning as applied to actual fact patterns, either in published opinions or scholarly articles or something. That we should be in the position of trying to use a few days of questioning as a proxy for all that speaks volumes about the cavalierness of this choice.

Comments

|10.10.05 @ 7:32PM|#

Maybe they're taking a look at her interpersonal qualifications (part of the required skillset) and will average them with zero for the conlaw hole.

And then grade on the curve?

What would be passing then?

|10.10.05 @ 7:48PM|#

You couldn't possibly be referring to conservatives arguing that she should be asked about how she would rule on issues that could come before the court. That would be the egregious horror in the history of jurisprudence.

I ask you, good sir: what of the Ginsburg precedent? Are we to ignore the hallowed Ginsburg precedent?

What are we going to tell the children?

|10.10.05 @ 8:09PM|#

"She is unrevealing to the point that it's an obsession," says one of her close colleagues at her law firm.


Hmmmmm.... maybe she has a skeleton or two 'in the closet', if you will? Or maybe she just subscribes to Micheal Corleone's motto of "Never let anyone know what you're thinking." Followed up closely by, "I'll make him an offer he can't refuse." Uh-oh... there it is. She has huge dirt on Bush and she's extorting him.

Sorry, couldn't resist.

|10.10.05 @ 8:22PM|#

After this farce of an appointment is there anyone left who still believes (did anyone ever believe?) Bush is capable of thinking seriously about anything? There are just so many troubling aspects of this appointment it's hard to know which one is the worst. Is it the President's appallingly poor judgment, or the fact that his staff was either too stupid to know how poor it was, or that they were powerless to impress upon him the seriousness of the situation (assuming they understood it), or is it simply the sheer arrogance in the shameless cronyism of the choice? You would think this decision ought to cause some serious reflection on the part of even the most diehard Bush-believers about the President's ability to handle anything more complex than deciding what to have for dinner, much less the conduct of a war. But sadly, I expect that when Bush nominates his personal bookkeeper to the chairmanship of the Fed, we'll get to hear Hugh "Shit Sandwich" Hewitt telling us that it's a solid B+ pick because while the guy may not have demonstrated the sharpest economic understanding, he did help Bush unload those oil wells and helped make him a fortune on the Rangers deal. Besides, he's Bush's pick - trust him.

|10.10.05 @ 8:30PM|#

True. Nonetheless, she's going to have to prepare for the hearings as if they were a con law exam. This will be much, much worse than the bar. I now believe that she is likely to withdraw her name before they begin.

The Senators want to ditch her, and, like you, they don't truly expect to learn anything new during the hearings. Rather, they are hoping that she'll look bad enough during the hearings to galvanize mainstream public opinion, providing them with adequate political cover for a "no" vote.

|10.10.05 @ 8:30PM|#

True. Nonetheless, she's going to have to prepare for the hearings as if they were a con law exam. This will be much, much worse than the bar. I now believe that she is likely to withdraw her name before they begin.

The Senators want to ditch her, and, like you, they don't truly expect to learn anything new during the hearings. Rather, they are hoping that she'll look bad enough during the hearings to galvanize mainstream public opinion, providing them with adequate political cover for a "no" vote.

|10.10.05 @ 8:30PM|#

I don't understand all the fuss. Does anyone actually believe that we'll ever get the Constitution back? Personally, I'd prefer some halfwit that would read the words as written, and not find all sorts of implications that may or may not be there. Hell, anyone who could understand that "Congress shall make no law..." means just that.

|10.10.05 @ 8:48PM|#

Real Bill-

Keep in mind that most of their time is not spent on heavily political questions that we would say should be obvious from a single glance at the Constitution.

Rather, 90% of their cases are obscure matters. The 1st, 2nd, and 3rd circuits rule one way on a matter, and the 4th, 5th, and 6th rule another way. And it's some arcane matter, nothing as simple as figuring out whether pot is interstate commerce. So they have to sort it out, and then write a ruling that not only addresses the issue, but addresses it in a clear and useful manner that will be useful in future cases as well, so they won't have to keep revisiting it. And it's supposed to be as consistent as possible with previous rulings, so that they don't suddenly upset a whole bunch of long-standing arrangements (laws, contracts, etc.) while resolving the case before them at the moment.

|10.10.05 @ 9:06PM|#

I don't understand all the fuss. ... I'd prefer some halfwit that would read the words as written...

Perhaps if she was just any halfwit, but the problem is she's a rather undistinguished Bush lackey, which is worse than a halfwit. As I said on another thread, after cases like McConnell, Kelo and Raich it's hard to imagine she could do any worse, but as thoreau points out, there are other considerations.

Besides, someone who thinks Bush is the "most brilliant man" she's ever met is not qualified to sit on The People's Court much less the Supreme Court.

|10.10.05 @ 9:20PM|#

"Hard of Hearings"
Go ahead, Herrick, tell them what I'm really hard of.

|10.10.05 @ 9:34PM|#

Besides, someone who thinks Bush is the "most brilliant man" she's ever met is not qualified to sit on The People's Court much less the Supreme Court.

Exactly!

Surely there must be a conservative woman who isn't a Bush crony and has a resume heavier on the analytical and intellectual aspects of law.

|10.10.05 @ 9:50PM|#

The hearings are going to be brutal. Bush's people are already teaching her the art of duck-and-dodge, but the senators are warming up to roast her on any and every issue. Of course, Kennedy and Feinstein will grill her on the usuals- abortion, affirmative action, etc.- but expect fellow Dems like Herbert Kohl and Russ Feingold to be much tougher than they were last time. But the most damage will probably come from Coburn and Brownback, hard-right/religious Republicans who obviously do not feel satisfied with the choice.

If Miers survives the hearings, a combination of three things would have to happen for her to be defeated in the senate:

1) A handful of hard-right Republicans vote against her: Coburn, Brownback, Santorum, Lott, DeMint, etc.

2) A vast majority of the Dems vote against her. Reid can't do it, since he has already given her (suspiciously) glowing reviews, but if between 40 and 43 of the others actually ignore the minority leader and vote against her based on lack of know-how, then all that's left is...

3) "Maverick" Republicans like McCain and Graham vote against her because they are just uncomfortable with her.

Of course, if all the above were to happen, then Miers would never get out of the hearings; if all the Dems voted against her, then all that would be needed would be one "nay" from Coburn or Brownback.

Great time to be a bookie.

|10.10.05 @ 10:18PM|#

I don't get it...why didn't he appoint Ann Coulter, instead? Oh, right, sorry, she's recently decided he's a liberal pansy. Never mind.

So what do republicans believe in now-a-days, anyway?

|10.10.05 @ 10:44PM|#

If Miers gets rejected Bush should appoint himself to the Supreme Court.

|10.10.05 @ 10:55PM|#

The Democrats and Maverick Republicans (TM) will at least act grave and solemn as they pound away at her, but the betrayed theocrats will tear into her with righteous fury.

Do you think Bush would actually send her out to get beat up like that? I think he will. I think he's so clueless, he'll convince himself, "Ah, she'll be fine," and be genuinely shocked when she's not.

And who can tell him different?

|10.10.05 @ 11:00PM|#

Jolly Member-

How about Justice William Jefferson Clinton?

Taft did it, after all.

If there's an attractive female lawyer arguing before the Court, he'll totally be flirting, giving a whole new meaning to the phrase "oral arguments".

|10.10.05 @ 11:36PM|#

"... the betrayed theocrats will tear into her with righteous fury."

Eh? I was under the impression that the "theocrats" were about the only faction relatively pleased with Miers' selection, her being an evangelical and all. But then, I haven't been reading religiously about this whole nomination brouhaha.

|10.11.05 @ 12:33AM|#

Me want Posner Supreme Court

|10.11.05 @ 12:44AM|#

Clinton as a justice! Even knowing that I would disagree on a good number of his decisions, it would still be a hoot from hell!

|10.11.05 @ 1:23AM|#

Do you think Bush would actually send her out to get beat up like that? I think he will. I think he's so clueless, he'll convince himself, "Ah, she'll be fine," and be genuinely shocked when she's not.

I don't think the President can withdraw this nomination at this point without a major loss of face. ...at least, I suspect he would lose less face seeing her get shot down in the senate then by publicly conceding a mistake.

...and I remain unconvinced that the spineless Republicans in the Senate will really go through with shooting her nomination down anyway. ...It's a long way to the next election. ...and our collective memory is so very short.

|10.11.05 @ 1:42AM|#

Richard Posner should have replaced Sandra Day O'Connor.

Michael McConnell should have replaced William Rehnquist.

But I guess America never gets the Supreme Court justices it deserves. You know, kind of like presidents.

|10.11.05 @ 9:58AM|#

panurge, McConnell wrote an article in TNR ripping apart the Bush v. Gore decision. He is going nowhere as long as the Bush Family hold power - ability and merit are nothing compared to loyalty with those people.

Tom Crick - you're probably right. A loss in front of the Senate can always be spun into the comforting "Liberal elitists beating up on an Ordinary American" narrative.

SP, "I was under the impression that the "theocrats" were about the only faction relatively pleased with Miers' selection, her being an evangelical and all." The Christian Right has been the loudest anti-Miers factin of all. They wanted their prize - a loud and proud theocrat on the Supreme Court, rammed down the throat of the godless opposition, to show the country who's really boss. Even if Miers will vote exactly the way they want, the symbolic triumphalist politics that forms the center of the Christian Right movement would be absent from the confirmation process.

|10.11.05 @ 10:05AM|#

Perhaps I'm guilty of only having a hammer in my toolbox, but can't we just take the Constitution and turn it into a computer algorithm and then be done with this whole charade? Or do most people only "wink-wink" believe in the Constitution?

Adam|10.11.05 @ 10:13AM|#

Even if Miers will vote exactly the way they want, the symbolic triumphalist politics that forms the center of the Christian Right movement would be absent from the confirmation process.

So is this an admission from a genuine "liberal" that Bush isn't a ChristianRightBot? (And what of the Dobson Factor? What does Dobson know?!)

|10.11.05 @ 10:25AM|#

Absolutely, Adam. Bush isn't a theocrat. He just plays one on teevee. He's been throwing those people bones so they'll back his corporatist agenda since his first campaign for Texas gov, and they're just now wising up.

|10.11.05 @ 11:07AM|#

Ha ha ha! "corporatist agenda". I knew you were good for something around here, joe, I just didn't know it was comic relief.

Frankly, I think it's great that Bush appointed an out-and-out nitwit for the Supreme Court. Maybe it'll disabuse Americans of the notion that these justices are intelligent.

R C Dean|10.11.05 @ 11:56AM|#

Russ, most people have no earthly idea what the Constitution says, or what it really was intended to establish, taken as a whole.

Lots of people believe in a version of the Consitution that, in an astounding coincidence, allows them to do exactly what they wanted to do all the time.

Thus, just to pick one example, your nanny-staters believe that the "general welfare" clause is a blanket grant of power to the federal government to engage in wealth transfers. Your regulatory control freaks believe the commerce clause is a blanket grant of power to the federal government to regulate all goods and services. Neither clause does any such thing, of course.

Etc. ad nauseum.

|10.11.05 @ 12:01PM|#

rafuzo, do you even know what the term "corporatist" means?

|10.11.05 @ 12:34PM|#

If Bush isn't a corporatist, then, well, I dunno. He's a corporatist, get over it, rafuzo. And Miers isn't a nit wit. She's a Bush loyalist, she's overly religious in my opinion to the point of being a danger to the county and she's single because she wears goth hooker make-up.

But not a nit wit. Everything is going perfectly to plan. Yes, exactly as we *ahem* I mean they planned.

|10.11.05 @ 12:43PM|#

I think rafuzo is under the impression "corporatist" is a word I made up to mean "evil corporate capitalist bad guy who makes money."

|10.11.05 @ 12:51PM|#

joe said:
I think rafuzo is under the impression "corporatist" is a word I made up to mean "evil corporate capitalist bad guy who makes money."

C'mon now joe, you know that around these parts you can't even bring up the word corporate or any variation thereof in any kind of negative way without getting a response like that.

|10.11.05 @ 1:15PM|#

...who, like wear ties and suits and stuff, and are all like, look at me, I'm a big rich guy.