Connected Fish in a Mediocre Pond

Channelling her inner Jim Murray, Dallas resident Virginia Postrel takes a withering swipe at her adopted hometown:

Harriet Miers has spent her life in Dallas, and done extremely well in its connections-oriented legal culture--so well that one of her Dallas friends has now nominated her to the Supreme Court. That gives me the creeps. If she had a record as a constitutional thinker, I might feel differently. But then, if she had a record as a constitutional thinker, she wouldn't have fit in in Dallas.

Ouch! Meanwhile, a lefty bankruptcy lawyer working in the great city Postrel left behind, rises to the defense of Miers' qualifications:

[S]he has accomplished a great deal in her legal career, a career not limited to running the Texas State Lottery, as Ann of a Thousand Lays so condescendingly mentions. She broke the barrier against her sex at a major law firm in Texas, ran the Bar Association in Dallas, then later in the whole state of Texas, and served on the Dallas City Council, before becoming White House Counsel. It may not be unfair to label her a "crony" of the President, but Byron White was no less a "crony" of JFK when he got tabbed, and his credentials were every bit as similar as Miers'. If Bush's other crony appointments were akin to Harriet Miers, the issue probably wouldn't come up, just as it didn't with President Kennedy. Even if I choose to oppose her nomination, her accomplishments entitle her to my respect.

Comments

[jf]

But Harriet doesn't have as cool of a nickname as "Whizzer".

[Crusader Rabbit]

Or "Bobby."

[mediageek]

Even allowing that Miers is a sharp-as-a-tack legal eagle, so what?

These days it seems that the law and reality are on two completely divergent paths, bearing almost no resemblance to one another.

The thing that seems chilling about it is that judges and legislators don't seem to be capable of perceiving that difference, let alone do anything about it.

In that respect, there's not much difference between someone who spends all of their time playing Magic: The Gathering and someone who spends all of their time studying precedents and laws in a musty library; both are nothing more than experts in textual minutiae that only bears a passing resemblance to Real Life?.

[Dave W,]

I think the following analogy is helpful:

Everybody understands the distinction between a practicing family physician and a medical researcher. It is probably possible to be both, but I don't think that is common. We know that both family physicians are smart and know some things about human psyiology and anatomy. Despite the similarities, when an opening comes up in the job market, the person doing the hiring generally knows whether they are looking for a medical researcher or a family physician. To put a medical researcher in a medical research job would not be considered a knowck on a family physician who applies and is not hired.

I think there is a similar distinction in the law. Judges and law professors andd appellate lawyers (eg, Roberts) dedicate their lives to thinking about what the law should be -- I think of them as the medical researchers of the law.

Practicing lawyers tend to engage with jurisprudence on a much baser level. they think the law should be whatever helps their client the most at the time. That is good. It takes great intelligence to argue some legal position that has basically been pre-selected for you due to your clients positioning. It is not that practicing lawyers don't care about the law, they care about it -- the same way a family physician cares about medical research. the state of the law is a neccessary input for the practicing lawyer to do her work, but the practicing lawyer community's role in deveolping that input is quite indirect. Mostly it is the people writing judicial opinions, government legal position papers and law review article writers who are developing the law in a hands-on (and brains-on) way.

From what I can tell, Roberts is like a medical researcher, but Miers is like a family physician. that doesn't make her dumb or inferior. It just means that she should be the president's lawyer, rather than the president's judge.

[the h-dawg]

It seems Bush, then, does respect precedent--the precedent of cronyism established by JFK.

He is clearly setting a new precedent in this era of politicized court appointments, however, in finding candidates with the barest qualifications and the least discernable record of jurisprudence. As far as one can tell, one of Ms. Myer's most important qualifications is that Harry Reid finds her acceptable.

[Alan Turing]

"...his [Byron White's]credentials were every bit as similar as Miers'."

Let's hope this lawyer's briefs are better written and researched that his defense of Miers. White was a Rhodes scholar and first his his class at Yale Law School.

[Peter K.]

"every bit as similar"??

[Peter K.]

"every bit as similar"??

[smacky]

This is completely off-topic (what? me post something off-topic?), but can anybody verify if this is real, and if so, from which broadcast this clip came from?:

Lookie.

[Evan Williams]

Mediageek: speaking of MTG bearing only a passing resemblance to the reality-based community...

Anyway...

I'm sick and tired of hearing all this nonsense about the quantity of her achievements. If I have to hear about what a hard worker Miers is, one more freakin' time, I'm gonna freakin' go all behr-ZEHR-kehr!

As for that Steve Smith quote above, it's horseshit. Oh, so, since Kennedy nominated a crony, it's okay for Bush, too. Talk about your weak excuses, man...dang! Nor do I give a rat's ass about how much she has accomplished. There are millions of people out there who have probably accomplished more than every SCOTUS justice in its history. When it comes to "accomplishments", quality most obviously trumps quantity. Memorizing the slugging percentage of every major league baseball player over the last 25 years is quite an "accomplishment", but it has no relevance to constitutional law. Nor, for that matter, does running the stupid-ass lottery, or serving on Dallas city council, or "breaking the sex barrier" at her law firm.

I have no problem with trying to justify her appointment with relevant quals...but simply assembling a big pile of irrelevant "achievements" is just lame.

Lastly, Steve Smith, at the end of his quote, raises a huge strawman to burn down. This is not about generic "respect". Yes, I respect her...but this debate is not about respect.

[Evan Williams]

Smacky,

Pretty sure it's real. Forget where it came from, but as far as I know, it was from when he was running for gubna, or something.

[joe]

"connections-oriented legal culture" is both repetitious, as well as redundand.

It's also repetetive, too.

[rafuzo]

These days it seems that the law and reality are on two completely divergent paths, bearing almost no resemblance to one another.

Heh heh. Good one.

One of my coworkers made a good point: Since so many "qualified" nominees have gone on to such horrifically bad Supreme Court careers (I bet Anthony Kennedy and John Paul Stevens once seemed like "qualified candidates" too), maybe it's good that we have people with little or no constitutional qualifications. Or not.

[Evan Williams]

Rafuzo-

nice one-liner there, but I think it's safe to say, outside of the realm of sarcasm, that being qualified is not a direct cause of being a horrific justice. You can probably find just as many, if not more, qualified candidates that went on to be great justices. If there is any such thing...

[Herman]

But Harriet doesn't have as cool of a nickname as "Whizzer"

Bet she didn't play for the Detroit Lions either.

[the h-dawg]

I can easily imagine the video now playing in the heads of all those Federalist Society, Constitution-in-Exile, and groups who have labored for 20+ years to get the court changes promised by the conservative movement. This video shows Bush leaning back on a sofa in the Oval Office with Miers holding a neatly organized legal brief, ready to take notes. "Hey Harry, put down the pen a moment. You've done a darn good job for me on this legal stuff over the years. How would you like a Supreme Court seat?"

[Vynnie]

Dave W -

You've got a good analogy, but I would apply it differently. I'm a "practicing lawyer," and I spend almost all my time doing research. Several of my co-workers have moved into low-level judgeships, and the chief counsel of my unit is a former judge. The split in skillsets recognized by the legal community is between House Counsel who do research and Litigators who argue in court, not between abstract research and representing clients. Britain goes so far as to make them two separate professions - Solicitor and Barrister, respectively.

Representing a client isn't the impediment you would think. In order to do competent research work, you need to consider the other side's potential arguments. Nothing spells "malpractice" quicker than telling your client to do something without letting them know there's a risk of being sued. Personal bias can be an issue, especially for lawyers that represent one client for most of their careers (government attorneys like myself) or a narrow scope of clients (usually activist lawyers in the nonprofit field). But personal bias is always part of the SCOTUS nomination game - what candidate since Roe hasn't been asked some version of "what is your personal bias on abortion?"

If Bush had nominated a career litigator, I would follow your point. Brilliant cross-examination skills do not equate to superior understanding of statutory construction. But it sounds like Meiers has spent most of her career in house counsel posts.

That said, I'm still waiting for someone to explain how Meiers rises above any of the other thousands of house counsel attorneys in the country to the extent of having SCOTUS qualifications. Maybe she really is sharp enough to handle the job - but if so, I'd like to hear her or the President make the case. Which, if past experience is any guide, neither will.

If we give her enough flack, maybe Bush will withdraw her and nominate Ann Coulter instead. Now THAT would be entertainment ...

[Syd]

Or at least it would get him committed.

[Dakota]

Bottom line is we have no way of predicting what kind of judge she will make. This scares people who really wanted this appointment to go one way or another. Obviously most here would applaud the appointment of a principled federalist.

The most troubling part to me is that she seems to be a political animal first, legal authority second.

Plus GWB saying "trust me" immediately puts me on high alert.

[Dave W.]

Representing a client isn't the impediment you would think. In order to do competent research work, you need to consider the other side's potential arguments.

I know. I have wrote a few briefs back in my litigator days. I know the depth of knowledge that litigation partners tend to have. They tend to be a lot deeper than a non-lawyer, but a lot shallower than a law review article. I also worked under a litigator who did write law review articles, and if he were the guy Bush was appointing, then I would say "great." But this was like one of 10 or so partners that I worked under over those years. He was the exception, not the rule. And it was easy to tell that he was the exception. Because he lists his law review articles right there on his c.v.

Here is a war story that may be helpful:

One time the judge basically had my litigation team write her opinion for her. In the coming years, that opinion (that I had a big hand in drafting) got roundly criticized in subsequent judicial opinions and law reviews for the next 5 years or so. It is not that I couldn't write a balanced opinion that would have set some good standards in an emerging area of the law -- of course I could have, I'm real smart. It is just that I wasn't being paid to look at things from a jurisprudential perspective -- rather, I just wanted to gore the other guy's ox as bad as I could get away with. And I did. Good lawyer. Bad judge.

[independent worm]

Vynnie, I was in the middle of writing something similar. But I'll just add my 2 cents about the vast number of appellate attorneys there are. In order for there to be a case at the SCOTUS, somebody has to be representing the parties.

And quite often, the language from the parties' briefs finds its way into the Justices' opinions (sometimes credited, but not always).

So plenty of "practicing attorneys" are putting as much thought into constitutional matters as any justice.

All, some, or none of which may have anything to do with Miers, as I have no idea what type of practice she had back in TX.

[Dave W.]

Independent Worm:

You will notice that I distinguished appellate lawyers from practicing lawyers in an earlier post.

Of course there is no bright line between practicing attorneys and appellate attorneys. the litigator who wrote law review articles that I mentioned above was as much more of an appellate attorney, even though I worked with him on trial court level cases. Despite the fuzziness at the boundary, I think we all know which category H. Miers falls into (barring some great oratory at the hearings).

[Shem]

Smacky-It's real all right. It's from when he was Governor. I actually used to have a clip with sound, and it's definately legit.

[Details, Shmetails]

Dave W. -- actually, you were being paid to write it from a jurisprudential perspective, though you seem not to have realized it. You're lucky you didn't get your client's victory reversed.

[Crushinator]

"Ann of a Thousand Lays"

Does that skank really get that much action? I thought right-wingnuts only screwed around within the confines of marriage and only for the purposes of procreation. I am shocked, shocked to read that she is not a pristine virgin (if we can believe the word of a bankruptcy lawyer).

[Number 6]

Crushinator-If having ones picture masturbated over by hoards of mouth-breathing Limbaugh listeners counts as getting laid, then Coulter is the whore of freaking Babylon.

[Vynnie]

Dave, I would have done the same thing if I represented your client. And I would have written it with the opposite slant if I represented your client's opponent.

I should have said "having represented clients in the past isn't the impediment you would think." Obviously, having a currently retained attorney sit as judge is a Bad Idea.

Now, if you want to speculate that Miers' loyalty to Bush isn't intended to end at the bench ... I certainly won't try to say you're wrong.

[Dave W.]

Dave W. -- actually, you were being paid to write it from a jurisprudential perspective, though you seem not to have realized it. You're lucky you didn't get your client's victory reversed.

Yes, I did have a pretty good idea of the likelihood of an appeal. I didn't say I gored the ox as badly as I could, I just said as badly as I could get away with. However, both those attitudes are quite different than what the judicial mindset should be.

[Dave W.]

Vynnie:

hopefully there is common ground here -- how about:

playing the practicing atty role is not an impediment to playing a judge role (eg, judge, appellate atty, law prof).

However, playing the practicing atty role to the exclusion of judicial roles over the course of a long career is a probabilistic impediment to playing the judicial role well.

[Dave W.]

Oh, yeah, and what is this about my opponent being represented? That's not how I remember the case.

[Vynnie]

However, playing the practicing atty role to the exclusion of judicial roles over the course of a long career is a probabilistic impediment to playing the judicial role well.

I think that is a very important factor to consider - "probabilistic impediment" says it well. I know PI defense attorneys who take on plaintiffs' work with no trouble shifting gears, and vice versa - and also attorneys who have heart and soul invested in whatever has fueled their careers. For that matter, I've had some law professors with pretty intense dogmatic fixations, but that's another story.

Whenever a SCOTUS candidate comes to the Senate with past affiliations, I'd like to see the senators look long and hard at whether those affiliations will lead to an unacceptable bias.

Heh, and maybe one day when I've got a few million for campaign contributions, the Senate will give a crap what I'd like!

[Paul]

Crushinator-If having ones picture masturbated over by hoards of mouth-breathing Limbaugh listeners counts as getting laid, then Coulter is the whore of freaking Babylon.

Ahh, Number6...methinks there's something you know, that we don't. 😉

[Bob Basil]

How will Miers be able to answer supercomplex questions regarding Constitutional Law from the likes of Biden and Schumer? Is she taking a Kaplan's course to bone up? Will she say, "This is how we do things in Dallas"?

Even if she's a fine corporate attorney and advisor, she will still be torn to pieces, which will be terribly not sad.

[Paul]

Y'know, I'm going to make one comment about Miers' qualifications in relation to the now infamous Ann Coulter article. I think that Coulter actually hit the nail on the head in a part of her article that NO one is talking about. That is:

to compose clearly reasoned opinions about ERISA pre-emption, the doctrine of equivalents in patent law, limitation of liability in admiralty, and supplemental jurisdiction under Section 1367 ? I think we want the nerd from an elite law school.

What we have to step back and think hard about, is what we armchair legal scholars posting on H&R spend little time considering: The Supreme Court doesn't spend 90% of its time on Big Cases(tm) with high press notariety, getting to write fanciful opinions with linguistic flair. A huge amount of a Justice of the Court's time is spent on incredibly nebulous cases requiring legal knowledge the rest of us lay-people never think about.

I think that Dave W's analisys above, speaks to this point. And Ann Coulter's article points out, while certainly full of snappy one-liners and partisan points about conservatism on the SCOTUS is that when we nominate judges to the SC, regardless of their 'over-arching' liberal or conservative bias, is that we want them to have the hard-core and yes, obscure constitutional law qualifications to wade through all the obscure crap which make up 98% of the job.

I believe that the Justices call these cases 'dogs' (correct me if I'm wrong on this trivia point). These are the cases that never get any press, are full of obscure and maddeningly complex legalese, and have little possibility or room for dramatic opinions.

Do we really think that Miers is qualified for this, conservatism or liberalism put aside?

Paul

[ldj12]

Cool...Postrel's sooo hot!

[gwangung]

I believe that the Justices call these cases 'dogs' (correct me if I'm wrong on this trivia point). These are the cases that never get any press, are full of obscure and maddeningly complex legalese, and have little possibility or room for dramatic opinions.

Do we really think that Miers is qualified for this, conservatism or liberalism put aside?

If we can't get an answer of "Yes", then she shouldn't be confirmed.

[Mark B.]

According to this obit, in addition to his Rhodes Scholar and Yale background, Byron White also clerked for Chief Justice Fred Vinson and served 2 years as Kennedy's Deputy Attorney General. There really isn't much similarity between Ms Miers' and Justice White's credentials other than the "President's crony" tag.

[thoreau]

Paul-

That's a good point. Maybe a lawyer can help me out here: Does her experience give her a valuable perspective that will help her write opinions that are useful to the practicing lawyer dealing with these highly technical subjects? Or does it limit her ability to do things outside her area of expertise?

Dave W. gave some insight into that issue above. My guess is that it hinges on a number of issues:

1) In the breakdown that Dave W. described, did she spend more of her time on research and putting together briefs, or did she spend her time in the courtroom?

2) Did she spend most of her time on cases that went to court, or did she make herself profitable by doing things that were still very important but not always in court, e.g. preparing complicated contracts? Most contracts between businesses are not contested in court, yet they require skilled lawyers to draft (precisely so they won't end up in court) and I'm sure it's a very profitable endeavor. I just don't know if it qualifies one to write highly technical decisions.

3) How much of her work involved federal law vs. state law?

4) Did she rise to the top in her private practice via her brilliant grasp of subtle legal matters, or did she rise to the top by being the best manager, or by being the best at recruiting and assisting clients? I'm no lawyer, and I'm sure that all 3 skills overlap: You can't manage something if you have no clue what it's about, you can't help the client if you have no idea what the other people on the team are putting together for the client, and even the most brilliant legal mind still has to understand the client's concerns when preparing a brief or contract. But I assume that in large firms there are people who specialize (as happens in any business with different groups or departments). So what did she bring to the table?

I want to make it clear that I respect her obvious success in the private sector, but not every leading light of a major law firm is suited to be on the Supreme Court. Just like not every good scientist should head up a major research institute (or corporate R&D department) or become an astronaut.

[js]

"Since so many "qualified" nominees have gone on to such horrifically bad Supreme Court careers (I bet Anthony Kennedy and John Paul Stevens once seemed like "qualified candidates" too), maybe it's good that we have people with little or no constitutional qualifications."

Spot the logical fallacy day? This argument simply doesn't follow. Although the good news is that if you hedge it with enough maybes you can make it mean practically nothing ;).

[Dave W.]

You can't manage something if you have no clue what it's about

lol

[thoreau]

Dave W.-

Yeah, after I posted it I realized how naive that was. I expect that somebody will post a Dilbert reference or something.