Redstate

She told Sen. Leahy today that one of her favorite Justices of all time was Chief Justice Burger, the same Warren Burger that voted for Roe v. Wade and is regarded as one of the worst CJ's the court has ever had.  The quote is near the bottom.

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/06/AR200510060
1713.html

Well, I'd say something about the fact that there is even a need for such a story, but you know what it would be already. It's an interesting consideration, but one I think you realize yourself should be unnecessary.

I was just reading Bruce Fein's recent, and he had an alternative theory for why "growth in office" happens:

Mediocre minds resist challenges to prevailing orthodoxies, which means Miss Miers would neither disturb nor confine the court's outlandish privacy, racial preference, church-state, death penalty, campaign finance, or enemy combatant decrees.

I think that's a lot more likely to contribute to "growth in office" than the allure of the Georgetown cocktail scene. But who knows?  

We're supposed to support an underqualified nominee because, 4 years from now she might "get even" by voting with the liberal block?!

That's hardly a "selling" argument to doubters...

The actual quote is so much worse:

In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" -- which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade . Miers said she meant Warren Burger, the sources said.

This. Is. Crazy.

Mulligan.

You better make sure he's dead once you try.

If actually believe you can defeat this nomination, that's one thing. If you don't, you try an entirely different approach.

in a sad way.

My spontaneous combustion humorous. :-)

I think she actually meant Earl Warren.  She replied to Leahy with "Warren", and then said she meant Warren Burger.  Who calls Justices by their first name like that?

Either way, Earl Warren, Warren Burger, both just as horrible.

Hmmm.

The key is not to reward Harriet Miers.  It's to punish Bush, the GOP and every single gushing pundit if either she, or Roberts, ever diverge.

We've seen this song and dance before.  Here on RedState you've posted examples.  GOP leaders go on "record" supporting some goofy unknown that turns out badly.  Those GOP leaders aren't held to account.

Well I say we should hold them to account.  Contact and list each and every single Republican figure, private and public, and list their support or opposition.  If Miers, or Roberts, turns out badly then those that supported must be punished.

This half is right:

I think she actually meant Earl Warren.  She replied to Leahy with "Warren", and then said she meant Warren Burger.  Who calls Justices by their first name like that?

And while that's enough to send me into conniption fits, this just isn't fair:

Either way, Earl Warren, Warren Burger, both just as horrible.

Burger was just incompetent. Warren was flat-out evil. That they both arrived at the same result isn't Burger's fault, IMHO.

It is, however, a fitting metaphor for this whole discussion.

The quote is priceless, and deserves it's own topic IMO.

Wait until Dobson sees her favorite Justice voted for Roe, I'm sure that will go over well.  I'm sure Sen. Brownback will be just as pleased.

Thank you, that is all.

is to get rid of law clerks for the Justices. Although Eddie Lazarus is full of tales of "right-wing" law clerks trying to "bend" a justice's will, the more likely tale is left-wing clerks, vetted by Tribe, Dershowitz, and the rest of the liberal legal academy being fed to Reinhardt, et al., on a fast-track to Kennedy, O'Connor or Stevens. A major concern I have with Miers is that she will rely too heavily on her law clerks due to her having spent most of her career on commercial law matters and not constitutional law.

The point of going to Harvard or Yale is not to have a pretty sheepskin but to be exposed to the brilliant minds of the faculty and the rest of the students.  That is what trains a quick mind to be even quicker.  Can you get there without that experience?  Yep.  But the odds are dramatically lower.

Can't wait to hear and see her answering questions on legal theory and philosophy, especially right after the wizbang performance of John ROberts.  Somehow, catering this event with popcorn just sounds so deficient somehow.

Did she know the Chief Justice?

. . .The Brethren suggested to me that Burger voted with the majority on Roe to control the assignment and keep it out of the hands of Douglas and/or Brennan/Marshall.  He decided to assign it to Blackmun (who, remember, was an old family friend from Minnesota), which turned out to not be a great idea.  In fairness, though--who in the majority would have produced a more palatable opinion?  Douglas, Marshall and Brennan were out, Burger himself would probably have been unable to write an opinion acceptable to the rest of the majority, Powell was still an unknown quantity, and Stewart was the one who demanded that Blackmun put the "fetuses aren't human beings under the Fourteenth Amendment" language into the opinion.  At least with Blackmun you got horrendous legal writing that gave opponents all sort of grounds to attack the reasoning--a better-written opinion from one of the other Justices might well have been far more challenging to go after.

In any event--my recollection is that Burger voted on the anti-abortion side after Roe came down:  if your only ground for finding him distasteful is his Roe vote (as opposed to being a mediocre Justice and Chief Justice in general), I'm just saying it might be a bum rap.

about her strong faith and that she does not hit the G-town bars. look at broder's column

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/05/AR200510050
1940.html

Moreover, why no credit for her role in picking all the great app ct justices fwith bush? This is an inside straight! you can't see that this? Wouldn't reagan have taken byrd's approval of meese?!!

trial lawyers, which she is. But quick minds are not relevant for an appellate judge.

Harvard and Yale are not the exclusive bastions of brilliant minds and have produced many liberal disasters on the courts.

Many ideas are so stupid that only harvard and yale professors can come up with them, and your comment makes me wonder if the limited role of umpire is considered beneath most harvard and yale grads and explains why they are so tempted to play word games to re-write the document.

Senator Harry Reid, a devout Mormon, also doesn't hit the Georgetown bars and go partying, but that doesn't mean I'd support his nomination to the Supreme Court. Incidentally, he claims to be pro-life too.

Look -- at this point, I'm wasting my breath. She's going to be confirmed no matter what I, you or anyone else says. I think her supporters have been seduced; they think we're elitists who lack faith. I'll gladly apologize to a Justice Miers and her devout followers when she proves me wrong. But I'm not anticipating it. Read my lips: Miers is David Souter in size 6 shoes.

in god, but you should have faith in bush on this. reid is already evolved! 41 did not know souter.

Isn't this resentment be people that have admittedly and admirably (I love these elitists) worked hard for this for 20 years and believe that one of their acolytes deserves this?

judges...According to the Senate Judiciary website, since February 2005, when Miers took control of the ship, there have been no new nominations! The four circuit court nominees were all renominee holdovers from prior Congresses.

In fact, I have been wondering why on earth the administration had not moved to nominate folks to the Ninth Circuit. The active status judges are teetering on a GOP majority and with 4 vacancies, 2 of which are blue-slip proof Idaho vacancies, I had wondered why there had been no action. Now, I'm not blaming Miers or her office for that, but I'm not crediting her either, as your post might suggest I do.

Ok, all the sky-is-falling talk is absurd.

Think about it this way:  If Bill Clinto had nominated his personal attorney to the SCOTUS, wouldn't liberals be ecstatic?  So why should we feel any differently about Bush doing so?

Here is the final analysis --  Harriet Miers will not be a Scalia.  She won't be a Thomas.  Deal with it.  The president ain't withdrawing this nomination.

Having said that, she is most likely to follow the path tread by Justice O'Connor, whom she is replacing, or possibly Justice Kennedy.  And is that such a bad thing?  It will essentially keep the SCOTUS exactly where it was.

After all, how would you feel about a President Gore or Kerry making these two appointments?  Think about it, and quit whining... It could be a LOT worse.

"I want to believe," but at this point in time, I'm not willing to put my trust in the arm of Bush. The Administration is clearly preoccupied on every major front. I think, though, the Administration blinked, and we're in for trouble.

As for the inside the beltway vets who have been doing this fight for 20 years, I hand them some credit. (I was a kid in middle school during the Bork wars.) I don't think this is a turf fight for them. I think they've just seen this before and are worried, frankly, as am I.

as a choice for her.  Burger's only real accomplishment as CJ was his work in judicial administration -- structuring the court system.  That kind of technocratic accomplishment would appeal to someone who is devoted to the ABA.

does not seem to be a method of swaying a 60-year old born-again sunday school teacher.  I have more faith that she will be swayed by the Chief Justice who she helped select-and who shoudl be there with her throughout her term.

perhaps more, that she's influenced by her most obviously intelligent colleagues.  Scalia is one, though probably in second place; the most intelligent Justice is probably Ginsburg.

Ann Coulter's point is overblown this week (no way!) but I'm gald it was made: It helps to have encountered liberal academic thinking in your law school or post-degree career.  Somewhere.  So you have practice ignoring it.  Miers, cloistered in Texas and then the Bush White House, hasn't, and doesn't.

This is such a disaster.

PHEWWWWW!

Bench Memos DEBUNKS this story:

----------------------------------

"Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren -- interrupted by Senator Leahy -- Burger for his administrative skills.

Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn't express admiration for his jurisprudence."

--------------------------------------

In an apparent effort to top the visit of Senator Obama to dKos recently (to chastise the Kossacks for being too partisan, natch), RedState announced that Supreme Court nominee Harriet Miers recently laid forth her judicial philosophy in a candid exchange with posters there. Miers summed up her nomination with the admonition that "it could be a LOT worse."

Welcome to RS, Harriet! Best tread lightly for a few days here...

The people who worked and sweated to get Bush the 55 Republican senators elected didn't do so to just maintain the "status quo" and "balance" on the court.

The status quo is what's gotten us majorities voting for Roe v. Wade, pro-affirmative action, anti-religion, anti-traditional values, etc., etc.  

I can't believe any Republican - except a RINO - would be fine with that.

If Bill Clinton had nominated his personal attorney to the Supreme Court, my reaction as a liberal probably would have been unprintable on RS.  It would have seemed like a joke to me.

The anti-Miers people even note how the comment was taken out of context?

Is exactly because of his "administrative skills," which arguably led to the decision in Roe in the first place.

Also, as has been pointed out, who calls Supreme Court justices by their first name? Not even most of their former clerks. I don't think she meant Burger.

It really doesn't matter of Harriet Miers is a true-blue conservative or not. I have the feeling she probably would not be a Souter, and would be a reliable conservative vote.

My objection to Ms. Miers is that she is grossly unqualified for the job, had demonstrated a complete lack of understandings of the basics of Consitutional Law, and even if she would vote with Scalia, wouldn't hold an intellectual candle to him.

I want a conservative judge - of that there is no doubt. However, I want a smart, capable, influential conservative judge.

And sadly, Ms. Miers may be a great person, but a great judge she is not. She is horrendously unqualified and the GOP members of the Senate would be well within their rights to reject her nomination.

She didn't call him by his first name. She was interrupted in the citation of his full name.

But who in the world praises Warren Burger for his administration skills? That's like praising Bill Clinton for his faithfulness to his wife.

Wasn't 'admiring different Justices for different skills' one he, her choice for Scotus let's remember, also used?

If we are tea-leaf reading this direct copy of a Roberts line seems significant (in a positive way).

and not a substantive bone either. It's like saying she admires O'Connor for her hairstyle.

See my Roberts post below. Also, this is a direct copy of the Roberts part of this process, the meetings with Senators - Dem senators leaking false things to make republicans nervous.

Leon, Miers is good for us. She's hardcore conservative.

But I don't think there are even Democrats who think Burger was a good administrator. There are things people might admire Burger for - as one of the seven people responsible for bequeathing at least two generations of mass murder upon us, I'll never see them - but his administrative skills?

how is this something for the Dems?  Makes no sense.  no one thinks WB was a good administrator.

Bill Clinton's attorney David Kendall was a Yale Law school graduate, a Rhodes scholar at Oxford, clerked for a SC justice, and has a long, long record of arguments and opinions (including arguments to the SC) which make his judicial philosophy clear.  If Miers had ANY of these I think many would feel better about her appointment.

JayReding writes that Miers "had demonstrated a complete lack of understandings of the basics of Consitutional Law".

When did she "demonstrate" her lack of understanding of Constitutional Law? Would YOU care to "demonstrate" her lack of understanding of "Constitutional Law" with a specific example of where she got it wrong?

She's innocent until proven guilty.

The constitution makes no specifications for a judge's qualifacations. Also, 41 out of the 109 justices to ever serve on the Court had no previous judicial experience, a list including Rehnquist.

It is one thing to be Pro-life, as Miers is....it is another thing to have the (cojones)and foot to kick that roe v. wade football out of the ballpark.  You are going to need some tough-skinned justices if Roe V. Wade is to go down.  I dont see that in Miers.  I hope and pray that I am wrong.  I just wish Bush hadnt put us in this situation.

liberal academic thinking when she was working with the ABA?  There is a shocker.

Is rapidly become a pro-Miers Known Fact.

Not so much for its factual status as for the sheer inappropriateness of the comparison, for anyone with critical thinking skills.

Harvard and Yale are not the exclusive bastions of brilliant minds, but they may have far more than their fair share of egomaniacs who believe that they are brilliant minds above the din of the volken.

Much of the legal scholarship at these institutions is geared not so much towards understanding the law, but towards changing the understanding of the law.  Critical Legal Studies, to use just one example, was born at HLS -- not out of some political agenda, I believe, but out of the desire of brilliant scholars wishing to show just how brilliant they are.

-TS

how differently some people view the world than I do.  This is a perfect example of this....

Burger was just incompetent. Warren was flat-out evil. That they both arrived at the same result isn't Burger's fault, IMHO.

Earl Warren is evil?  This is simply astounding.  

What are the cases that make Earl Warren evil?

...who praised Burger's work in strengthening state courts.  There's 11,300 hits for burger "judicial administration", and at least the first few seem to be under the impression that he did something significant in this field.

But I ain't a lawyer, so maybe I'm missing something.

Moe

PS: Breathe.

A lot of people here are condemning Bush for picking Miers.  This is a woman that Bush has known personally for over a decade.  She is the person that has helped Bush select every Federal Judge he has appointed.  Virtually all of them endorsed by this sight or not acknowledged because it was a good pick.  Miers knows exactly what Bush wants out of a Judge and he would not have nominated her unless he was SURE that is what he was going to get.

His approval ratings are at an all time low.  That has virtually every Republican in the senate wanting to be John McCain's mini-me and go against the POTUS so they can try and defend themselves while Dubya's popularity is at an all time low.  Bush nominated Miers so there would not be a political war for which he does not have the political capital fight.  At the same time giving the RNC some ammo to stick it to Harry Reed when he is finally up for re-election because he recommended her.  Bush knows personally that she is what he wants and can get her through as a stealth nominee without much of a fight.  

Enter the whiners.  Now that many on our side are taking the POTUS to task for this nomination his popularity is dropping even lower.  The final result may be Miers withdrawing her nomination.  That would be one of the worst things that could happen for this POTUS and our party.  I know she is not Janice Rodgers Brown but we need to at least give Miers the chance to express her current views before taking Bush to task.  What some on the right are doing will hurt the POTUS as well as the party so much that any conservative agenda will be paralyzed for the next few years.

Lets say you get what you want and Miers withdraws her nomination.  Do you think the Dems will continue with the status quo.  Are you thinking with the damage that has been done they will fell sorry for us and just let a proven conservative glide through.  Your should know better.  With Dubya's popularity sinking any lower they will go even more on the attack than they are now.  They will certainly seize the opportunity.  At that point they will feel so empowered that they will toss the Gang of 14 agreement and go to war.  Then we will end up with another Souter because that will be the only type a unpopular POUTUS will be able to get through the senate after this damage is done.  

Wake up people.  This temper tantrum is going to have some serious consequences.  Not only in getting a SCOTUS confirmation but any agenda we have hopped to get through congress in the next 3 years.  You are helping the DNC achieve a position to take back the majority in D.C. for the first time in years.  The Republicans have proved they cannot or are not willing to do what if takes to win an all out war in the senate with the Dems.  The position some in this party are putting them and Dubya in will cost us down the road more than you think.  Please try to look past the end of your nose.

But the comparison was not the point of my comment, the point was that more than a third of SCOTUS justices had no prior judicial experience. Rehnquist was merely an example of this. In what way did I directly compare the two? While you are considering this you can consider who exactly is lacking the critical thinking skills.

Hmmm.

What we need are two more Supreme Court justices:

1. Warren Earle
   
2. Earle Warren

Man that'll complete the entire set.

-In 1989, she contributed $150 to Texans for Life. 95% of those who contribute to pro-life groups seek to reverse Roe v. Wade; there's no reason to think Miers is an exception.

-When she ran for Dallas City Council, she openly identified herself as pro-life. Her campaign manager has since called her "on the extreme end of the anti-choice movement".

-She became head of the Texas Bar in 1992-93, and used her position to lobby against the ABA's pro-abortion positions. She continued this lobbying late into the decade. There is no reason to doubt that this was powerfully rooted in her own pro-life political views.

-She gave money to Bentsen and Gore in 1987/88 when she was still a conservative Democrat. Since 1990 she has made 13-14 political donations, and these donations have gone ONLY to 100% pro-life candidates.

-In 2000 she gave money to Donald Stenberg, the Nebraska attorney general who defended Nebraska's partial birth abortion law before the Supreme Court. As one blogger put it: "I didn't know she had given to Sternberg [sic]. The only people who I know from around here who did that were the real activists." Exactly.

-Summary: this is the most extensive pro-life record of any nominee to the Supreme Court in recent years. Even Scalia and Thomas, who both rejected Roe, never had a record like that. Roberts certainly never did. Her on-record pro-life convictions are clear and undeniable.

Is this a guarantee that Miers will vote to overturn Roe? No, there can be no guarantees on that. It is highly probable however. And it is close to a guarantee that she will vote to reverse Stenberg (a 5-4 decision with O'Connor in the majority).

Link here.

Miers has botched just about every probing legal question she's been asked - she has no record on Constitutional issues, and what little she's said so far have not exactly increased confidence in her abilities.

I believe that Miers should withdraw - her confirmation hearings are going to be an embarrassment. Roberts, much to his credit, demonstrated a very quick legal mind and his answers were almost uniformly excellent. I really don't think Miers has the depth of experience necessary to argue Constitutional issues in a convincing manner.

IIRC, as AG of California he was a big force behind the pretty indefensible Japanese internments in WWII (leading up to the Korematsu decision).  That's bad.

But as someone hitting for the other team here, I think he redeemed himself pretty nicely in the later years of his life.

I've gotta dispute your contention on young conservative law clerks.

What the Miers and Roberts nominations do is tell young conservative jurists: "hide your views. We won't go to bat for you. If you produce a paper trail, you'll end up like Miguel Estrada, or at best Richard Pryor. If you want to make the Supreme Court, don't let anyone ever get a hint that you're conservative, and don't clerk for a conservative justice."

Roberts plus another conservative is fine, since Roberts had clear conservative credentials and a good temperament, and you want your Chief Justice to be a fairly smooth, friendly guy who is good at building consensus instead of a fire-breather like Scalia.

I'm no fan of Justices Renqhist, Scalia or Roberts, philosophically speaking. However, there is no disputing the legal gravitas these people were known to possess even before their appointments. I certainly tip my hat to Roberts, who is probably the most gifted legal mind to sit there in decades (which leads me to wonder about future personal rifts between himself and Scalia).

In the case of Miers, I don't know what to think in terms of philosophy or intellect. Without a doubt she's a capable attorney, but so are Ken Starr and Ted Olson (no, I'm not pretending to be their cheerleaders). So, I don't see how she stands out in the legal profession.

With regard to her philosophy, it's been interesting to say the least. On one side, Dr. Jim Dobson has been trying to reassure conservatives that she's really "one of them". On the other hand, pro Miers advocates have been trying to point out to moderates and liberals that she's not so bad. They talk about her support of gay advocacy issues, about her gay staffer and her invitation of feminists such as Pat Schroeder and Gloria Steinham to speak in front of groups.

Before you say it, I'll say it for you. Yes, if the President appointed Judge Luttig, I would scream "bloody murder" on his past rulings, but at the same time, I would have no questions about his capacity, and at least, know what to expect when rulings are handed down. Like I said, I don't know what to make of her.

Didn't Roberts clerk for a conservative Justice?  (Er, rather, Chief Justice)  That didn't seem to impede his nomination.

Warren Burger was considered to be a good administrator of the courts in is role as Chief Justice.  Not because of the way he handled the assignments of opinions or voted on decisions, but through the purely mechanical processes of court interaction, administrative functions as head of the Judicial Conference, defending the Court in appeals for money from Congress and etc.

You are conflating some of his abominable decisions as Chief Justice with his capacity to keep paper flowing and the judicial branch functioning.

Don't forget that the Chief Justice has several roles: he is Chancellor of the Smithsonian Institution, serves as head of the Judicial Conference which promulgates the Federal Rules of Civil Procedure and evidence, and convense the FISA courts.

Tellingly, from Wikipedia:

Overall Burger's was not a strong voice on the court. He often only wrote straightforward and uncontroversial opinions and avoided those in which the court was evenly split. Instead, he poured his energy into the other role of the Chief Justice, administering the nation's legal system. He initiated the National Institute for State Courts, which is now located in Williamsburg, Virginia, the Institute for Court Management, and National Institute of Corrections to provide professional training for judges, clerks, and prison guards. He initiated the annual State of the Judiciary speech given by the Chief Justice to the American Bar Association. Some detractors thought his emphasis on the mechanics of the judicial system trivialized the office of Chief Justice.

As a practicing attorney with a reputation for minutae, it's not hard to see why Ms. Miers admires Warren Berger as an administrative guy.

  On Monday, I posted to the effect that this was a gamed strategy, using Miers as a pawn for the issue of qualifications, which has become the sine qua non in nearly every commentary written since then; the cronyism meme has long since evaporated. Now, assuming that this poster is representative of liberals in general, and Bush does withdraw Miers in response to the overwhelming shouts of unqualified, on what basis can the Dems oppose, say, Luttig? Only ideology, and he's hardly a judicial ur-radical.

  Similarly, the Dems, who have been quiet, are waiting for that one bit of ideological evidence to tar Miers with the same unqualified brush that we've been using to paint her.

  I give it a maximum of ten days, before her nomination is either pulled or she withdraws, and I say this with no animosity towards Ms. Miers. I trust Bush because the surest guarantee of this type of strategy working, which is hardly Machiavellian, is to fool your friends as well as your enemies. Start the bidding on the end of her nomination.

Another leftie thought:

Even though there's a better chance of Miers voting in a way I might like on certain issues than Luttig (I say "better chance" because I have no idea where Miers stands, whereas it's pretty obvious where Luttig does), it would be tough to portray Luttig as anything other than a well qualified pick.  I may not agree with his judicial philosophy, but at least he has one.  In the end, I'd feel better for the country with a well qualified candidate who I disagree with than a poorly qualified candidate that no one knows anything about.

(Incidentally, while I have no problems acknowleding Scalia's and Roberts's talents, Ginsburg is awfully smart, too.)

I'll probably scream if Luttig is appointed. To be honest, I could not bring myself to much of a lather over Roberts, maybe because I'm getting too old. Come to think of it, I don't remember being worried about Souter when no one knew where he stood. Thomas was a different story, because instead of saying he should not comment on issues, but said in front of everyone that he had no opinions. On the flip, I wasn't very impressed with Ginsberg or Breyer. Maybe my image of a Supreme Court Judge, liberal or conservative, is too idealistic.

Hi Jay,

From a fellow MOBster.

I would ask you to consider this list of qualifications assembled by Beldar:

• counsel to the President and to the governor of one of the most populous states, along with having competently executed several other high-level White House staff positions;
• president of both the state bar association in the Nation's second largest state and of one of its most respected and active local bar associations, as well as having led valiant efforts to return a dysfunctional American Bar Association back to its roots of apolitical service to the profession and public;
• long-time managing partner of an extremely well regarded large Dallas-based law firm, which then became a successful 400+ lawyer statewide powerhouse after she oversaw a successful cross-state merger with a Houston-based firm of comparable size and reputation;
• an accomplished courtroom lawyer, praised with words like "very good, cool, deliberate, poised, effective" by the judges before whom she's appeared, with experience at both the trial and appellate level in both state and federal courts, capable of personally attracting repeat engagements from sophisticated clients like Microsoft and Disney, and regularly listed among the top 50 or 100 American lawyers in listings complied by national legal periodicals;
• a law clerk for two years for a respected federal district judge, providing further insights into federal trial practice of a sort that no current member of the Court can claim;
• a published member of, and then an articles editor for, the top law journal at her law school, noted for its comprehensive coverage of Texas law; and
• a "very thoughtful, very good student" who made "top marks" and could be counted on to give "solid, intelligent answer[s]" to "critical question[s]," according to a professor of hers, nationally recognized as an expert in business law, who 35 years after teaching her pronounced himself filled with "great satisfaction" to see her nominated to the Court.

Clients like Disney and Microsoft paid Miers to be persuasive in court.  She has experience in the trenches, and both at the state and federal executive levels. She's held office. In my experience, there's a huge difference in abstract book learning, and real world experience.

If we limit our court to the ivory towers, we'll end up with justices who argue about the meaning of the words, but significantly less understand of the real world consequences of their decisions.

I would be very interested to know the specifics that have made you confident Miers is not "smart, capable, influential."

Until then, I'm willing to see what type of intellect she brings to the confirmation hearings.

He posts on Confirm Them and he has done an outstanding job of collating all the pro-Miers conservative evidence. Life is just part of it. Doubters should read the whole thing.

But doesn't that speak volumes about her perspective, or rather, lack thereof, on judicial philosophy, etc., not to mention a complete lack of poltical tact? She had to know that would be asked of her.  Doesn't give me any confidence for the hearings.

"The Legal Genius of Harriet Miers" is that she was plenty smart enough to put herself in the perfect position to get on the US Supreme Court with little or no fear of Democrat filibuster. Any doubt that she gets 51 votes? No. No doubt in the world. The only question is which party puts her over the top.

Leon, you don't need duct tape, you are already to the handi-wipe stage.

"Not only in getting a SCOTUS confirmation but any agenda we have hopped to get through congress in the next 3 years."  

Outside of the War on Terror and the Iraq War, there has been no agenda.  In fact, when there has been one, it has been contrary to what most of us believe (run-away spending, expanding governmnent entitlements, signing campaign finance "reform," etc.).  Unless the President and GOP leaders suddenly discover some hitherto-unseen desire to implement a truly conservative agenda, the opportunity to do so has been squandered and passed.  

"The position some in this party are putting them and Dubya in will cost us down the road more than you think."

As so many are fond to point out, we did not nominate Miers, the President did.  Don't blame us for disagreeing with his choice, and don't blame us for "putting" the party and the President in "this position."      

 Both are reasonable positions. What got me from the start was how soon everything synthesized into two lines of argument: qualifications and ideology. The ideal candidate from our point of view was one who had both, but lacking the former it seems clear that Bush is suggesting that Miers is an ideological nominee,

 Mickey Kaus posed this same question two weeks ago (sorry, don't know how to link), when he compared Miers'and Luttig's resumés and asked who was better based on qualifications, with the unstated assumption that they were ideological, if not intellectual, equals.

 Having foregrounded qualifications, the only opposition is ideological, and that's simply not good enough when the President won an election in which SCOTUS was a campaign issue. See, you've already been softened up.

that you are asserting Miers has picked great appeals court judges. Since she took over as WH General Counsel, there have been NO new circuit court nominees. One wonders why the administration has done nothing on that front. The only nominations have been renominations of people previously nominated during Gonzalez's watch at the White House. So, she gets zippo credit for "nominating" good circuit court judges.

"Outside of the War on Terror and the Iraq War, there has been no agenda."

That happens to be an extremely large outside.  One that looms rather heavily on a lot of Republicans' mental horizons, including my own.  I recognize that others may have different priorities; but it would be nice if more others reciprocated.

I don't care if the anti-Miers people fight this nomination; her success or failure is relevant to me primarily as to how it impacts on Bush's ability to set foreign policy for the next three years.  Which is to say, it won't so impact, unless her confirmation/rejection somehow manages to break up the party.

So don't do that, okay?

All that may mean that Miers is a good lawyer, but that doesn't qualify one for the Supreme Court.

What does it take to be a viable Supreme Court nominee? Being a judge is a good first step. It is correct that not all Supreme Court Justices have had judicial experience. However, having the requisite experience in Constitutional issues is crucial to being an effective member of the Court.

Take this metaphor. You have a massive brain tumor, and your HMO assigns a doctor to you. That doctor happens to be an great osteopathic surgeon - a leader in their field. She's done hundreds of operations, has a very distinguished record, and has broken new ground in osteopathic medicine.

Which is all well and good, but it's your brain, not your bones that has the problem.

Harriet Miers may be a great corporate lawyer, although people who have worked with her have given her mixed reviews at best. What she is not is a great Constitutional lawyer. She's never written on Constitutional issues, as far as I know she's never even argued in a Supreme Court case. She simply doesn't have the qualifications.

If Bush wanted to appoint a conservative, Evangelical woman to the Supreme Court, there are better picks out there. Miers' selection positively reeks of poor judgment, and even if Miers is a committed conservative (which is in doubt) and a great lawyer (likewise), she does not have the kind of experiences that suggests she's remotely qualified to be on the Supreme Court.

when everyone was looking for reasons to oppose AGAG as the nominee, one thing that came up was that he would have to recuse himself in many cases relating to the policies of the current Executive Branch.

I haven't heard this point made in the context of the current nomination, and I'm surprised by it.  I think there would definitely be recusal issues.

The important question is how many had significant constitutional law experience before being appointed?  Rehnquist wasnt a judge, but he was a con law expert.  I would probably set an 1820 or so cutoff too, to knock out the initial conditions.

It would be interesting to see the list of justices without significant con law experience.  Were they universally or near-universally poor?

What is the purpose of "punishing" Republicans who don't live up to your expectations? Having Democrats elected who will make things worse? What kind of SCOTUS justices would Hillary nominate?

Despite all the huffing and puffing around here, this isn't going to blow the White House down.

http://www.rasmussenreports.com/Bush_Job_Approval.htm

Rasmussen poll numbers on Bush Job Approval:

Oct 3: 46% (all pre-Miers interviews)

Oct 4: 47% (2/3 pre- and 1/3 post-Miers)

Oct 5: 47% (1/3 pre- and 2/3 post-Miers)

Oct 6: 46% (all post-Miers)

Oct 7: 47% (all post-Miers)

Statistically speaking, this is flat. The real "base" out in Middle America doesn't really care, one way or the other!

Rasmussen's details for today say approval by 81% of Republicans, so we're not really losing the "base" with this nomination.

Others on Harriet's list of favorites:

1. Warren Zevon
   
2. Warren G
   
3. Warren Beatty
   
4. Warren Buffet
   
5. Warren, Ohio
   
6. Warren G. Harding
   
7. Warren Mears
   
8. Warren Eckstein, and last but not least...
   
9. Warren Sapp
   

absent any complications or problems in the area of foreign affairs over the next three years, you are content to allow the party to drift without a coherent agenda?

... clerked for the Supreme Court (Jackson, J.)  and served at high levels in the Justice Department.  

Bench experience is not an absolute requirement, but those lacking it need to demonstrate some other compensating qualifications.

Such as those of, say, Laura Ingraham.

go around distributing 5's like some kind of RedState Santa Claus, this comment would get a 5 with a very large shiny bow.

...to have no further complications or problems in foreign affairs over the next three years will be a fairly clear indication that the party is neither drifting nor incoherent; merely primarily concerned with issues that you apparently do not think should take precedence.  Can't help you there: I imagine that I'd feel equally annoyed if my party minimized the problems that I think should be maximized.

Which, come to think of it, my old party did.

I disagree that being a great "constitutional" lawyer or scholar is important for the job.  Frankly, I don't even understand what it means to be one.  I've know many con-law professors and I wouldn't want any of them on the Court.

The reapeated analolgies to medicine are not apt.

The S.Ct. docket is very mixed . . . a lot of administrative law, some tax law, some securities, some corporate, some state law, some international law and some con law . . . but by no means is it mostly con law.

The Court has had far too few people with practical experience and has had far too many with eastern or far western elite backgrounds.

So many of you guys need to stop deifing judges and justices . . . they are and should be normal people with normal life experiences.  We need well-rounded juctices (and some well-rounded law clerks) rather than more of the same.

kennedy, souter and oconnor, I suspect that Miers possesses the main quality needed on the court, and that is,

the ability to read and comprehend the english language and the character to restrain oneself from deviating from the original meaning of the text to impose one's own polcy preferences on the people.

Her opening statement at her intro could not have been given by  any of the above. see broder's column

Although I'm guessing that the debate over whether she's qualified for the job at all probably seems more pressing than the debate over whether her old job makes it impossible to do her new one.

That is all.

  The only problem with this kind of reasoning is that it never deals with sitting SCOTUS judges who make decisions like Kelo, or Roe/Wade, for that matter. Based on your criteria, who could possibly doubt the qualifications of judges who've actually been on SCOTUS for years? By your definition, they would be the most qualified people in the land by the mere fact of being there and, as such, who are we lesser mortals to doubt their decisions? Such second-guessing would amount to saying, "You're much more qualified, able, informed and experienced than me, but you're still wrong." I don't permit that kind of nonsense from my students unless they can prove it, and since they are not as qualified, informed, able or experienced than me they rarely, if ever, can.

  Again, based on your post, Nancy Pelosi must be right when she says the SCOTUS is like G-d. Am I then to assume that because they are so clearly more qualified than me that I must be wrong, and gracefully accept their decisions?

warren at the chicago tribune and

the Holy  WAr ren  dered spain useless for centuries

O'Connor, of course, struck down the Texas sodomy law as Supreme Court justice. Miers was one of the supporters of that law. It is not likely that Miers would have supported it if she agreed with O'Connor that it was contrary to the constitution.

That's a misreading of O'Connor's opinion.  She wrote a concurrence that allowed for such a law if certain standards were met - O'Connor was closer to the right position on that one than Kennedy.

From the Corner:

    I did a quick review of the bios of the current Justices. If you leave out the departing O'Connor, the only Justice with any significant private practice experience left on the Court is Kennedy, at about 14 years. Souter and Scalia had a handful of years right out of law school; believe me when I tell you that doesn't count. Thomas had a couple of years in-house at Monsanto between government positions. Roberts had 10 years at Hogan & Hartson, but as I understand it, it was exclusively appellate work, which only barely counts.

    J. Harvie Wilkinson (my Con Law professor years ago) has no private practice experience. Michael Luttig had about 4 years.

    Miers, by contrast, has over 25 years as a commercial litigator. Though I've seen some of the derisive comments about the intellectual rigor of that branch of the profession as compared to the supposedly more rarified field of Constitutional Law, that is nonsense. A good commercial litigator's practice is, in fact, one of the most intellectually challenging careers in the profession. Every case, every business you represent, and every deal is different. You have to explain unfamiliar and complex commercial issues (which are found in both "large" and "small" cases) to judges and juries.

    If you confine appointments to Constitutional scholars, you're going to have nothing but academics and government lawyers, which is what you've basically got there now.

    My point is that if Miers is a good lawyer, the fact that she hasn't had an opportunity to deal with search and seizure issues in her career is not disqualifying. In fact, her familiarity with many of the regulatory, tax and other commercial issues faced by the Court will be much greater than her colleagues. And maybe we'll have fewer of those ridiculous 7-part tests to deal with.

I think there's a good argument to have depth of experience on the court. What about this list of former justices with no judicial experience?

I did not state there are issues more important than the War on Terror or the Iraq War.  Please do not impute to me a statement I did not make.  Rather, the point of my question is that, while those two issues are of paramount importance, they alone do not constitute a coherent agenda.  There are reasons other than a strong national defense as to why I became and am a conservative and vote Republican.  To that extent, if every cherished principle other than a strong national defense is scuttled in favor of political expediency, it becomes exceedingly more difficult to view the Republican Party as the political manifestation of conservatism.  As such, electoral consequences will result, most notably a depressed base.  

I don't disagree about her fundamental unfitness to serve, but I feel it is best to focus on areas where there are actual merits to the argument so that our Republican Senators have ample ground for their opposition.

If we let the trivia get in the way, it makes us look unserious.

Volokh on justices with similar backgrounds to Miers.

for swearing in Ronald Reagan. Twice.

Maybe she admires me, too.

good at ceremony, but that's about it.

January 20, 1981 Ronald W. Reagan West Front, U.S. Capitol Warren E. Burger, Chief Justice

January 20, 1985 Ronald W. Reagan Privately in North Entrance Hall, White House Warren E. Burger, Chief Justice

January 21, 1985 Ronald W. Reagan Publicly in Rotunda, U.S. Capitol Warren E. Burger, Chief Justice

I am also a Mike D from SC!

"I did not state there are issues more important than the War on Terror or the Iraq War."

Hence the use of the word 'apparently'; it's the most suitable qualifier for situations where the person is giving a strong impression of having a particular opinion without actually being explicit about it.  For example:  "Moe Lane is apparently being an annoying pedant out of misplaced nostalga for his undergraduate days in English Literature".

As to your point:  you originally indicated that with one exception there was no agenda.  I countered that your exception was a broad one.  Since we're to be explicit, here goes: your exception was too broad, because the Bush Administration abruptly changed course after 9/11 and made foreign affairs their agenda.  

Which, by the way, they were perfectly correct to do.  

So I cannot agree that this administration is agendaless in any meaningful sense, or that it is drifting, or incoherent; again, they simply have concentrated on specific items.  You obviously disagree that these issues are sufficient to avoid any of those accusations.

And that's pretty much how it stands, I guess.

It gets confusing sometimes at work.

I've been here long enough (~15 years) to take a liking to the Gamecocks, but I still like to root for the Buckeyes, too. Those two bowl games were excruciating. And when the Buckeyes won the national championship, the last team to have beaten them (and the only team to beat them that calendar year) was the Gamecocks!

by the buckeyes were to USC. Are you in Columbia? I went to law school there. Wofford in Spatanburg undergrad.  Losing build character! But baseball is tops. Basketball is good, but we were a real power when I was a child.

My brother went to Clemson and I went to every home game with him the year they won the national championship. We love old Woody's punch to bauman!

I've been in Atlanta 4 yrs doing corp law now and writing.

USC has been a powerhouse in baseball lately, but football is the real money sport for the school. I hope Spurrier does better than Holtz did.

Any sibling rivalry?

Similar note - I was in the Navy, wife was in the Army. We always watch the Army-Navy game together.

I lived in lexington, by the way, for 18 months back in 2002-3 as corp counsel. I am from Spartanburg.

We grew up gamecock fans due to frank mcguire. My dad coached the first integrated little league (and mom the first such cib scout) and my bro and i played all sports. But dad liked clemson as well. But dad would get on the roof to move the antennae when the cocks were only on a columbia station and we would shout when the picture was as good yet fuzzy as could be! John Roach was tthe all american

Small state. We were very spartanburg/sc/south centric. Pulled for who ever was closest to us!

Sprtanburg was a great place to grow up and raise a family. No need for Greenville. We had at least one of every kind of restaurant/entertainment w/i 7 miles and two malls two interstates, most wal marts per sq mile, best schools in the state, biggest ymca in the south and the beacon drive in ala ameican grafi