UPDATED: Bay v Bay Debate of the Month: Harriet Miers — Supreme Court Nominee
Bush’s nomination of Harriet Miers utterly underwhelmed me. Understand I still support Robert Bork. I’d like to see Janice Rogers Brown on the Supreme Court. Kelo? With Justice Brown on the Court? No way.
But my wife disagrees. My wife worked on Wall St for eight years, is a “double bar belle” (New York and Texas Bars), has served on her section’s national ABA committee (Real Property, Trusts and Estates), is Order of the Coif (top ten in her law class), has been practicing 26 years, etcetera, etcetera, etcetera. She says I’ m wrong. Charles Krauthammer is off his bean. Bill Kristol? The editor of the outstanding magazine that occasionally publishes my screed, he’s…well, here’s her view on Harriet Miers.
Kathy Bay on Harriet Miers:
Blogmeister Austin Bay, my husband, and I have agreed to disagree about Harriet Meirs. In the great tradition of civil discourse and debate, he has, this week, repeatedly requested that I post my reasons for supporting Harriet Meirs for the U.S. Supreme Court and, in order that we may move on to discuss other topics, I am finally complying with his request. As an introduction to my comments and opinions, let me say that I am a trusts and estates lawyer and also represent charitable organizations; I graduated from UT Law School in 1979, from Rice as an undergraduate (English and Behavioral Sciences double major), and have been in private practice (i.e., not clerking for a judge and not working for the government or a corporation) since then; I have not run for (and at this time do not intend to run for) public office; while I have served in leadership positions in bar associations, I have not served as the president or chair of any subdivision of a bar association or of a bar association. Now, first I will summarize what the conservative critics of Harriet Miers are saying (the liberal critics appear to be patiently allowing the conservatives to take the lead here) and then I will provide my response.
(1) (a) A Supreme Court Justice must be an experienced judge and must be experienced in Constitutional law. (b) These criteria are not, themselves, included in the Consitution. If confirmed, Harriet Miers will not be the first Justice who has never, previously, served as a judge. Except for Consitutional law professors, historians who are steeped in the history of the U.S. Supreme Court, and reporters who have researched and written about Justices who first donned robes when they became Supreme Court Justices, I rather doubt that U.S. citizens can name those Justices who had previous experience as judges. Certainly, I have never read a book, treatise, or article that posits that all U.S. Supreme Court Justices who came to the bench without prior judicial experience have made terrible decisions and have clearly not interpreted the Constitution correctly. In fact, I have read positive comments about decisions by Justices who had no prior judicial experience (isn’t Sandra Day O’Connor one?). [Thank you commenters. Note please that I meant federal. Justice O’Connor was a state judge.]Thus, I conclude that there are more important criteria for selecting a Justice than previous judicial experience (see item 2(b) below for a more in-depth discussion of these criteria) and that those who are criticizing Miers for not having prior judicial experience really are saying that there are sitting judges whom they like and whom they wish President Bush had nominated. Well, picking a U.S. Supreme Court Justice is not a popularity contest and, Constitutionally, the President gets to nominate and does not nominate based on a short list prepared by us. (As an aside, it is interesting to me that President Bush gets tagged with not making his own decisions — I’ve seen a cartoon where Cheney is the puppet master of a small Pinnocchio-like Bush, and then receives no positive recognition for making a choice that commentators uniformly say was “his decision.”)
What about expertise in Constitutional law? “To nominate someone whose adult life reveals no record of even participation in debate about Constitutional interpretation is an insult to the institution, and to that vision of the institution.” (Charles Krauthammer, 10-8-05 column.) This sounds rather elitist to me. The Constitution provides a framework and a foundation for justice and fairness. When people disagree about the Constitution’s effect in particular cases, judges have an important role in construing how the justice and fairness contained in the Constitution are to be implemented. What was the “norm” at one time — without necessarily any regard to justice and fairness — can and has been changed when the Constitutional spotlight was focused upon it. My mother’s parents — and probably the parents and grandparents of many readers of this posting — accepted the “norm” that students of different colors went to different schools (at least when you got to the point where everyone was given to the opportunity to attend school), the “separate but equal” template. When the Constitutional spotlight was focused on this, the “norm” changed, and rightfully so. President Eisenhower is remembered for enforcing the law as construed by the Supreme Court. The Justices who made that Consitutional interpretation are the ones who reviewed the words of the draftsmen, the intent of those draftmen, and made a decision whose implementation changed the “norm,” but did so in a way that is fair and just and Constitutionally sound (The names of those Justices do not occur to you immediately and they should not — their role is one of construction of the law and differs completely and significantly from the roles of other branches of our government.) Certainly, more lawyers because they have gone to law school have taken Constitutional law courses than other Americans. Judges who sit on the federal bench (as compared to state judges) are more likely to have had to apply the Constitution to particular facts and situations, but every case a federal judge hears does not turn on a Constitutional interpretation. U.S. Supreme Court Justices become steeped in Constitutional considerations, in the history of the Constitution and previous decisions. Thus, a nominee must, in my opinion, have the ability to analyze the Constitution and apply, in a just and fair fashion, the facts of the particular cases that the Court decides to hear (often when two different circuits have reached different conclusions based when faced with similar situations), but a nominee need not demonstrate that he or she has already judged certain Articles or Amendments to the Constitution in order to be elgible for appointment.
(2) (a) If a nominee hasn’t written about the Constitution or decided legal cases based on the Constitution how can we know if he or she will make fair and just decisions or if he or she has the “smarts” in order to make those decisions? (b) I certainly understand the human desire for certainty. However, I don’t want a Justice who has pre-judged what the outcome will be, any more than I want a juror to have decided how to vote before hearing the evidence and applying the law to that evidence. I am reminded of the first time I met NPR Reporter John Burnett (whose commentaries are excellent and I commend them to you). I was at lunch at Scholtz’ Beer Garden which is frequented by many attorneys. Microphone in hand, John approached my table and asked me if I would comment on the nomination of Robert Bork. My companions all nodded their heads, yes, so I graciously accepted. Robert Bork had been a law school professor and had written about Consitutional law issues. In my opinion, teachers should challenge their students to think, illustrating to them how to take positions and provide support for those positions, doing so in the great tradition of civil discourse (i.e., set forth your positions and your evidence, and you can attack the evidence but not the person — don’t call the person with whom you disagree names, allude to ancestry, pull the race card, etc.– certainly if the person is not providing evidence, just opinion, you may point that out). Robert Bork, in his writings, illustrated that he was a great teacher, able to argue different perspectives and to challenge his students to think, to agree or to disagree with him. However, his writings — his intellectual abilities — were used to castigate and, yes, to villify him, giving rise to a new verb, “to bork.” I expressed this view, on tape, and watched John’s eyebrows rise slightly. I believe he was surprised at my comments and they played nationally later that day and a number of colleagues who heard them called me. My point is that you cannot accurately predict the decision that a thoughtful, fair, and just person will make when presented with the facts and asked to apply the law; you can only predict the decision if the person has already carved out a position, in stone, and is unwilling to apply the law in a fair and just way. I also remember my Constitutional law school professor telling us that when commentators had, in the past, predicted how Justices would rule on certain issues once they were appointed to the bench, often they had been wrong; when those Justices applied the Constitution to the facts at hand, they had surprised some of their critics and some of their supporters.
Thus, if you assume that a lawyer who has worked with a major law firm (Locke Purnell Rain Harrell), has beeh the head of that law firm, has been the President of the Texas Bar Association, and has been counsel to the President of the United States has the “smarts” to read and analyze the Constitution — and I submit that you have to start here, then her commitment to the process — to approaching a situation in a fair and just manner — is what is the most important criterion, in my opinion. Will she be fair and just? Will she put the Constitution above her own self interest and personal agenda? How do we know?
We can only know by what people who know her have to say about her and by her actions — i.e., like mother said, actions do speak louder than words. First, the actions. Miers served in an at-large position on the Dallas City Council from June 1989 through 1991 (”at large” means everyone in Dallas got to vote for her, not just people who lived in a particular geographic location). Mark Lisheron writes in today’s Austin American-Statesman that “A review of more than 6,500 pages of minutes of the City Council meetings during her tenure … shows a council member almost perfectly in sync with the majority but staunchly independent on several issues important to her.” She opposed, unsuccessfully, a redistricting plan that she felt undercut minority representation on the Council. She voted with a 6-5 majority for a 7% city tax increase in part to preserve nearly $1 million in the arts and library funding, and while President of the Texas State Bar, she insisted that it should be the members of the State Bar, and not the leadership including her, who should decide on official positions — insisting in one case that the members should get to vote on whether or not there should be an official bar position on (for or against) abortion. The leadership American Bar Association took a pro-abortion position a number of years ago without even polling its members — this was not fair and just, in my opinion, and while I did not resign, a brilliant law school professor who had contributed significantly in substantive matters resigned in protest. For all the critics about Meirs’ lack of Constitutional analysis in her adult life (see Charles Krauthammer), let it be said that Meirs has been involved in a Consitutional law case, argued to the Fifth Circuit Court of Appeals which held that the plaintiffs did not have standing — an interest that gave them the legal right to sue — so the Constitutional issue regarding the 12th Amedment (a rather obscure Amendment) was never ruled upon, but she certainly had to study, analyze, and be prepared to argue the Constitutional issue if the Fifth Circuit had not agreed with the lack-of-standing issue she won on. (If you’re interested in this, see yesterday’s Wall Street Journal and the front page article by Jess Bravin.)
Now, for what others say about her integrity. You may want to read Dallas attorney Ken Raney’s commendation of Harriet Miers, the posting of which started the debate between my husband and me on this subject. Then read Harriet Miers herself: “Lawyers before all others in society should be dedicated to ensuring justice and fairness.” (Texas Bar Journal 1992.) I concur wholeheartedly. Then read quotes in today’s Austin American-Statesman: “She is not pro-choice. She told us so and stood her ground,” said Louise Raggio, now 85 and the only woman in the graduating law school class at SMU in 1952. “Sure, it concerns me, because I don’t know what she’ll do on Roe versus Wade. But I do know that she’ll stick to the Constitution.” And my favorite, and with this last one I’ll close: Colleen McHugh who chaired the Board of the Texas State Bar while Miers was its president and who practices in Corpus Christi and Austin primarily: “She is smart, decent, has integrity, is forthright and honest. … This nomination is a gift to the people of the United States; you’ll see.” I hope that Harriet Miers will be confirmed and that “we shall see” indeed– and that I will get to say “I told you so” to Austin.
NOTE FROM EDITOR: I remain unconvinced and harried by Harriet, but…stay tuned.
UPDATE: For the commenter that can’t find the Rainey email. It’s two posts below this post. Here’s the link.
UPDATE 2: From Kathy Bay — the person who pointed out that Sandra Day O’Connorwas a judge is absolutely correct; what I meant to say, and did not say clearly obviously, is that the commentators who are complaining that Harriet Miers does not have Constitutional experience are really saying that basically only Federal judges are qualified to serve because they are the only ones who have U.S. Constitutional experience. Sandra Day O’Connor was a state judge — and I believe she is currently well respected as a U.S. Supreme Court Judge and will continue to be so as time passes. The other folks who have verifiable proof that they think about and study the Constitution are law school professors like Robert Bork — and we all see that he got into trouble for being able to argue and write about different perspectives.
UPDATE 3: Note to commenters. Review the rules for comments on this site. Personal insults don’t won’t be posted.
A Sign of Strength The way out of this is not to wring our hands and worry if the neighbors will hear us fighting. The way out is to be the party we say we are.
Trackback by Peace Like A River — 10/8/2005 @ 2:40 pm
Austin, I’m with your wife on this one. I was initially disappointed with the Miers nomination, but decided to not jump ship until more facts became available. I have been very satisfied with President Bush’s past actions and priorities, and believe this nomination will translate to yet another very good decision; in other words, I do trust him, because he has earned my trust. A key factor that makes my decision much easier is that President Bush knows Ms. Miers very well and he has shown himself to be a very good judge of character. There is a very good post at http://presidentaristotle.blogspot.com/2005/10/case-for-miers-when-things-look-blurry.html that presents a very good case to support Ms. Miers. I found that link via Hugh Hewitt. On the other hand, I am quite disappointed by the meltdown of so many well-known and respected conservatives on this issue. Their disagreement with the president’s choice is not the issue, but their behavior and comments are often over-the-top; many of the comments (and commenters) remind me of the childish antics that pass for normal on liberal sites. Keep in mind that these are for the most part individuals who I read daily and whose opinions and contributions I greatly appreciate. I hope we can get past this hyperventilation period soon and calm down.
Comment by E. T. — 10/8/2005 @ 6:20 pm
Harriet E. Miers Helped Bring Feminist Speakers to Southern Methodist
Comment by John McAdams — 10/8/2005 @ 9:22 pm
I was on the fence about Harriet Miers nomination. Kathy pushed me in Harriet’s corner. Well thought and written. Thax
Comment by Claude — 10/8/2005 @ 9:47 pm
William F. Buckley, Rush Limbaugh, George Will at NR’s 50th. Not Cheney Charmaine, Buckley Your Business Blogger and Charmaine attended National Review’s 50th Anniversary Gala in Washington DC Thursday night with 998 other dear friends. A celebration of a half century of journalism and innovation and wit. The Evening’s …
Trackback by Jack Yoest — 10/8/2005 @ 10:28 pm
Listen to your wife Austin.
Comment by Laura Lee Donoho — 10/8/2005 @ 11:44 pm
Musings of a retired ne’er do well from a trailer park in deepest, darkest Florida: Do we need a Constitutional scholar? Seems to me I remember the phrase “rule of law, not men” from 3rd grade. If the law has grown so complex that even one of the top 100 lawyers in the country is not qualified to interpret it without years of study then our whole society and way of life is in danger. We don’t need more nuance. We don’t need more insights. We need decisions that make sense to those of us who have to live with them. You get that from people who live by the rules, not from the people who make them. Harriet Miers has spent a lot of time wading through the rules. The President is not qualified to pick a nominee? This from a pompous ass who’s only elected office was secretary of the junior class at Podunk High? The 2000 election was the blandest, least political in memory. There was peace and prosperity. Neither candidate could get a bit part in a movie. The biggest issue was the lockbox. The even split showed the basic party affiliation of the country. In November 2004 almost 20 million more people voted than in 2000. This vote went to the President 3 to 2. This was a resounding vote of confidence in George Bush. The people overwhelmingly chose him to lead us in time of peril. Do you really think we said “handle the war Mr. President, but maybe you should outsource some of that other stuff”? This President was not elected by the chattering class. The fine intellectual arguments of the conservatives did not get the people to the polls. George Bush got the people to the polls. The superb performance of the Republican Party politcal operations got the people to the polls. People like me, informed by life and our parents’ lives, talked to our family, friends, neighbors and a whole bunch of other people and got them to the polls. Hands off our President you nattering nabobs of negativity! Regards, Roy
Comment by Roy Lofquist — 10/9/2005 @ 6:20 am
Elitism? Given that the Supremes is a post for life, with the power of life and death over citizens, isn’t it designed to be the single branch that’s not popular for good reason? (Actually, of course, the Senate was designed not to be populist also - a defect nedding remedy by overturning the 17th Amendement for almost a decade now.) If elitism bothers you, why not Archie Bunker for SCOTUS? Bigots need representation there more than women do! The environement that SCOTUS operates in has clearly changed since the last non-jurist was nominated - Rehnquist, I believe. It’s become much less concerned with subjects like contracts and property and much more with regulation and civil rights. Today, on the job training in con-law is an even more questionable notion than ever - why not face facts? As for the wisdom a nominee who’ll not pre-judge issues but take matters on a case-by-case basis - isn’t this what became of O’Conner? (She was a mid-level judge in Arizona, appointed in a time when women were rare in law, 1982 - a far cry from today’s seasoned bench of accomplished women lawyers, including conservatives.) And isn’t a hairsplitting hyper technician a role already overfilled by Roberts? Or isn’t the capacity to write well, analytically and persuasively important for a woman on the High Court as well? Miers is much more an administrator than the ‘thinker’ this august post deserves. If the process of changing a corrupt American legal culture is to go forward, we need ideologues who can fight on behalf of the framers vision for the lost Constitution. Miers’ has no such voice - she’s certain to be an echo for some years, later gaining a voice of uncertain commitments and undistinguished quality. If its Miers above all, I’m just not going to bother voting in ‘06. I haven’t labored in the field of politics to suffer mediocrity without protest, given a betrayal of this magnitude. “Sucking up” is more than undignified - it’s also unprincipled. Miers ought to withdraw out of movement loyalty, not loyalty to the Admiral. Bush is only an instrument, not the all powerful seer deserving our loyal slavery. We can, we must, do better than this!
Comment by Orson Olson — 10/9/2005 @ 9:07 am
“Then read Harriet Miers herself: “Lawyers before all others in society should be dedicated to ensuring justice and fairness.†(Texas Bar Journal 1992.)” The problem here is that we have an overeaching Federal Government trying to insure justice and fairness. What we need are limits as intended. Life is not fair or just and judges pursuing the noble cause of insuring fairness and justice have intervened on the behalf of one class of citizens at the expense of another; only to insure that unfairness and injustice are then spread evenly.
Comment by Art — 10/9/2005 @ 9:50 am
I’m another old retired guy and for my part, Kudos to Roy for getting it right so thoroughly. Most of the meida are claiming the President Bush has been weakened by the passage of time and events. I have to agree that his popularity has sagged. Much of the impetus for this decline stems from the negativity that flows from those on the right who take every opportunity to claim that they are correct and that the President is wrong. Have any of the most vocal critics of the Miers nomination ever managed anything more complex than their computer keyboards? Your wife is right, Austin. Roy is right and so am I.
Comment by Hugh McDonald — 10/9/2005 @ 9:53 am
Mr. Lofquist has it right!
Comment by Howard McCarthy — 10/9/2005 @ 10:09 am
Roy says “If the law has grown so complex that even one of the top 100 lawyers in the country is not qualified to interpret it..” This is the best explanation of what we, the average citizen, thinks about the law. We voted for Bush and this trashing of Miers by some on the Right, lowers them in my opinion. Your wife said it best with her “fairness test”.
Comment by owl — 10/9/2005 @ 11:13 am
Bottom line: Harriet Meirs is a worker bee, not a legal pundit. Since the court hasn’t actually had anyone more willing to knuckle down and write clear decisions then hear themselves talk for awhile, it needs her desperately.
Comment by Pierce Wetter — 10/9/2005 @ 12:22 pm
More on the Meirs Nomination … Austin Bay has an interesting point-counterpoint. William Dyer looks at Meirs’ case record. Alexander K. McClure makes some points in favor of the nomination. Professor Stephen Bainbridge makes some points against the nomination. PoliPundi…
Trackback by The New Editor — 10/9/2005 @ 12:58 pm
Anybody know where I can Ken Raney’s post on Harriet Miers? Web search had no hits ED: It’s on this site. Check out the post. Scroll down and keep scrolling.
Comment by s3728 — 10/9/2005 @ 1:01 pm
That’s what happens when 9 lawyers outsource their thinking to their many clerks.
Comment by jrdroll — 10/9/2005 @ 1:07 pm
The Right Madame Bay is, in my judgement, making the better argument here. The actual Constitutional issues that are generally at stake are not usually particularly nuanced, and every first year law student has gone through the critical cases and can quote every rule. Wickard and Morrison are two of the most recent highly controversial precedents (it was Morrison that got Specter’s jock strap twisted seventeen different ways in his outrage that the SCOTUS would dare to tell the Senate that just because there was no interstate activity, and absolutely no relation to anything commercial, the Commerce Clause really doesn’t work to justify the Violence Against Women Act- I bet that you’d get more sense out of the drinkers at your local street-corner tavern on this one than you get from Specter). I want to know where the person’s fundamental position is on the law, and that where bad precedent violates the law, she/he is willing to do something sensible to redress it. All you can go by is a person’s fundamental character, discipline, and respect for the law. Being from Takes-Us, my inclination is to believe that Miers is not a “national government runs everything” person, and she understands process. As I put it in a long treatment of this where I talked about SCOTUS effectiveness (Brennan) versus flash and pop (Douglas- sorry for using all liberal examples, but we are still suffering the after-effects of those two), no team defense does will with 11 all-world defensive ends. With whom would you seriously expect Miers to ally on the Court- Souter and Breyer or Roberts and Thomas? I tend to think that we need to trust the President. We can then really nail him if he turns out to be wrong….. The other issue here is that I suspect that we will someday learn that he got undercut up front in the “consultation” process by the RINO caucus.
Comment by Kurmudge — 10/9/2005 @ 1:14 pm
Mr. Bay: Some say that you can judge a man by the wife he has. By this standard you certainly must rank near the top. Now do the intelligent thing and listen to her. That said, I also agree with everything stated by E.T. above. The conservative pundits in the MSM and the blogosphere are killing their credibility with these screeds. Reasonable people can disagree, but they should do so reasonably. All the whining and crying and gnashing of teeth just makes them look ridiculous. I’m really somewhat surprised at the position that some people I formerly respected have taken. Their influence has been reduced, certainly not strengthened, by these “performances”.
Comment by Mike in Colorado — 10/9/2005 @ 1:20 pm
Kathy gets it right. I think a lot of us “unwashed” voters agree with Bush.
Comment by Xixi — 10/9/2005 @ 3:08 pm
The wife is mostly right, but she is mistaken about Justice O’Connor’s prior judicial experience. She was on an Arizona state court for several years prior to be a U.S. Supreme Court Justice.
Comment by Lance Jensen — 10/9/2005 @ 5:22 pm
I want a Bork rematch, with Luttig or Brown, say, where the majority Senate Reps (55?) are willing to go nu-kue-lar to stop a fillibuster and to get an up or down vote; and thus WIN. The Gang of 14 (7 Reps) says “no”. The outrage on the Right should be directed at the Senate Reps unwilling to fight the Bork rematch. If a Rep President can NOT count on all Rep Senators, than it’s not clear he should fight. As Beldar states, we don’t need more intellectuals “making love with their egos,” unwilling or unable to merely concur on a majority opinion. If she only and always merely votes in a compassionate conservative way, she will be a huge improvement. Finally, there is some BS that a Bork or Roberts level intelligence will be better able to convince other justices. I see no evidence of this from Scalia or Rehnquist … or Souter, Kennedy, O’Conner. Or anybody on the Court. In fact, I rather guess Souter, O’Conner, & Kennedy are turned off and reject conservative intellectual bullying. Where is the proof that serving donuts won’t be actually MORE effective at getting a swing vote to agree? I suspect it will be — and she’s the only candidate who’s actually been successful at MANAGING real live people with real live high-powered egos. Initially underwhelmed/ ignorant. Now fairly supportive. Still afraid she will NOT overturn Roe (90% she will) — actually more afraid Roberts will not (only 80% he will). Thanks to Mrs. Bay for a fine defense.
Comment by Tom Grey - Liberty Dad — 10/9/2005 @ 5:23 pm
I agree with the wife, except she is wrong about Justice O’Connor’s background. Justice O’Connor had prior judicial experience on an Arizona State Court.
Comment by Lance Jensen — 10/9/2005 @ 5:24 pm
Ms. Bay is right on this one–and for commenter #21, I agree that smackdown should happen, but let it happen over a seat that will truly move the court–i.e. Stevens in the next 24 months. That’s a long time, I know, but it will be so worth it in the end. Right now, the pontential battle losses could offset the victory. Funny, though, I too was initially underwhelmed and now also become more supportive every day. How many others are like us?
Comment by Academic Elephant — 10/9/2005 @ 7:12 pm
Over at Irish Pennants I wrote of my displeasure with the Miers nomination and of my anger. I have come around to hoping for the best with Miers as to how she will vote. I do however continue to believe that the Bush Administration has become politically inbred. It is also remarkably deaf to what is going on outside Washington D.C. The President would do well to hold a closed door meeting, alone, with enlisted troops who served in Iraq and Afghanistan. Heck, he should have a private meeting with Austin Bay and Ralph Peters on the GWOT. Then do the same with Republican voter gruops from across the US. It seems to me he has become too dependent on reports from loyal aides, and it has resulted in an emotional and intellectual isolation roughly akin to that suffered by British generals on the Western Front of WW I. Remember that telling comment by a British general when he actually saw the muck the troops were trying to advance in where he exclaimed in surprize and horror about what they, the high command, had sent their troops into?
Comment by KJB43 — 10/9/2005 @ 8:24 pm
The only honorable thing for you to do, Mr. Bay, is to concede that Mrs. Bay is correct. She is, you know.
Comment by Frank Wilson — 10/9/2005 @ 8:29 pm
Supplementing Mrs. Bay’s excellent points: The Twelfth Amendment case, Jones v. Bush, had Ms. Miers lost it, would have overturned both the practical effect of the Supreme Court’s decision in Bush v. Gore and the 2000 presidential election: It would have prevented electors from Texas from casting votes for both Bush and Cheney in the Electoral College. Ms. Miers’ opposing counsel in the case was a leading national constitutional law scholar, Prof. Sandy Levinson (who arrived at UT-Law just after Mrs. Bay would have left, if I recall correctly, and who is a genuinely brilliant lawyer and scholar of the exact background Ms. Miers’ critics claim she lacks). So how’d she do up against him in court? Ms. Miers whipped Prof. Levinson soundly, not once but three times — in the trial court, in the Fifth Circuit, and in the Supreme Court. (Only the trial court produced a written opinion; the Fifth Circuit summarily affirmed, and the Supreme Court denied a stay and then eventually denied certiorari.) The briefing by both sides actually did address not only the prudential/justiciability/standing issue, but also the merits of the Twelfth Amendment argument. (And indeed, the prudential arguments are themselves constitutional, coming from the “cases” and “controversies” requirement of Article III, Section 2.) And although the district judge based his ruling primarily on standing, he also made an alternative ruling accepting Ms. Miers’ arguments on the merits of the Twelfth Amendment point (i.e., that under the facts and law, Dick Cheney was not an “inhabitant” of Texas within the meaning of the Twelfth Amendment). But this was far from the only time Ms. Miers has litigated constitutional issues, nor is it the only published appeal of a case in which she’d done so. There are at least two others, one on behalf of Disney, another on behalf of Microsoft, each of which involved Due Process Clause issues. And although there’s no paper trail from published appellate opinions to readily confirm it, Ms. Miers almost certainly dealt with constitutional law issues on other occasions at the trial court level, among the many other legal issues a commercial litigation practice like hers would regularly present. Finally, her con law professor from SMU Law has been quoted as saying that he remembers her — even now, 35 years later — as she was an “excellent student” and “very well prepared.” My conclusion: Her critics who claim she lacks either the chops for, or experience with, constitutional law in particular, or hard legal questions in general, are simply fantasizing and hyperventillating.
Comment by Beldar — 10/9/2005 @ 8:54 pm
Kathy Bay for SCOTUS! First we get Miers confirmed then we get W to nominate Kathy!
Comment by Claudia Lane — 10/9/2005 @ 8:56 pm
She wasn’t one of the TOP 100 lawyers, she was one of the 100 MOST INFLUENTIAL lawyers, and the reason given for that was her connection with the Bush family, not her own merits. This is pure and simple cronyism, and the President played those who defended him after Katrina for fools.
Comment by Ernest Brown — 10/9/2005 @ 9:00 pm
Excellent exchange of comments, thoughts and opinions on your site Mr. Bay. Your wife very impressively stated her case and I agree with her. Another thought had crossed my mind since all of this extraordinary commentary from highly respected conservative individuals that I read daily. David Horowitz has nailed it I believe try this link http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=19760 Something else to think about isn’t it?
Comment by Scott E Davis — 10/9/2005 @ 9:08 pm
Ahem. Every first year law student is required to take constitutional law. That means they are all exposed to the jurisprudence of such legal lights as William O Douglas (wrote short, sem-scrutable opinions) and Potter Stewart (who could not describe porn, but knew it when he saw it). People need to realize that a large part of the problem with the Supreme Court is the rarified atmosphere in which baby clerks go on to become baby judges which are nurtured and grown into Constitutional Geniuses Lauded At Harvard and Yale. I’d prefer a real person from a less tony law school who has some experience with, say, the Bankrutpcy Code or the Securities Act (pick ay year) because construing THAT stuff is what is going to mess up the daily lives of the people a lot more than whether Roe is overturned (some of us would be content to see Roe enforced as it was written, and not as the envelope was pushed in later years). The intellectual circle-jerk about who went to which Ivy League law school is plenty entertaining, but those of us living outside the Beltway would appreciate a justice who can think outside the ivory tower. By the way, since when did being a trail-blazer become such a liability? Or is it only a liability for evangelical white women from Texas?
Comment by Anita Shingeldecker — 10/9/2005 @ 9:11 pm
Austin vs. Kathy: I’m with Kathy; so is my husband John (he’s a lawyer; I’m not, but I’ve given “muscular strength to his jaw” for quite a few years now). I have been greatly disturbed by the critics who made statements about what Ms. Miers did/didn’t/can/can’t do without first doing any search of the record (bless the bloggers who check their facts before mouthing their opinions, and a pox on the rest). I’m all for arguing whether or not someone has the proper credentials for the job, but the lists only seemed to show up after the nomination, not before. Is there some Ur-list of “Top Ten Qualities all Supreme Court Justices Must Have” (on stone tablets for preference, of course, but I’ll take links to Law Review, etc. articles of the past). In general, for those positing the “must have” credentials: who made you Jello Sheriff?
Comment by Kate Merkling — 10/9/2005 @ 10:26 pm
This nomination has opened up a rift in the Republican Party that seems a mile wide and a mile deep. Thank goodness it hasn’t caused any such problem in the Bay marriage! Points to Kathy on substance and argument, points to Austin on graciousness for giving her the floor.
Comment by neo-neocon — 10/9/2005 @ 10:52 pm
Dear Don Hewitt (NO NO not that “Don Hewitt,” I mean Don Hugh Hewitt, the respected head of “the Family” of conservative bloggers): Please take no offense by this. But the word is out, never take sides against the Family. . . (http://hughhewitt.com/archives/2005/10/02-week/index.php#a000323 Hewitt questions your loyalty to the Family. You should all be very careful. . .) HUGH HEWITT You have to answer for Meirs, Frum. DAVID FRUM Hugh, you got it all wrong… HUGH HEWITT You fingered Miers for the Kristol people. Ahhh that little farce you played over with my sister K-Lo- - you think that could fool a Hewitt? DAVID FRUM Hugh, I’m innocent — I swear on the kids, Hugh — Please, Hugh, don’t do this to me. HUGH HEWITT (as he pulls up his own chair) Sit down. DAVID FRUM (sitting) Hugh, don’t do this to me, please… HUGH HEWITT Kristol’s dead. So is Professor Bainbridge — Scott Johnson — Glenn Reynolds — Andrew Sullivan — Today I settle all Family business, so don’t tell me you’re innocent, Frum. Admit what you did. (then, to John Podhoretz) Get him a drink. (then, to Frum, as Hewitt shifts in his chair) Come on. Don’t be afraid, David — Come on, you think I am going to take you away from my sister? I’m the Blogfather to Goldberg and Podhoretz — (then, after Podhoretz hands Frum a glass of wine) Go ahead, drink it — drink (then, after Frum drinks) No — David — you’re out of the Family business, that’s your punishment. You’re finished. I’m putting you on a plane to Vegas — then, to Jonah Goldberg, as he reaches out his hand) Jonah? (then, after Jonah hands Hewitt a plane ticket, which he hands to Frum) I want you to stay there. Understand? (then, quietly, after Frum nods and hmmms) Only don’t tell me you’re innocent. Because it insults my intelligence — and makes me very angry… (then) Now who approached you? Will or Kristol? DAVID FRUM (after hesitating) It was Kristol. HUGH HEWITT Good. (then, after standing) There’s a car waiting for you outside to take you to the airport. I’ll call K-Lo to tell her what flight you’re on. DAVID FRUM (as he rises, starts to protest) Hugh, please… HUGH HEWITT Come on — get outta my sight. [Frum turns. Podhoretz helps him put on his coat] CUT TO: Hewitt gate. Medved is putting luggage into the rear of the car. Frum gets into the front seat. -day CUT TO: Interior of car. Sean Hannity is seen behind Frum, in the back seat. -day SEAN HANNITY Hello, David… CUT TO: The House. Hewitt, Podhoretz, and Goldberg emerge as Goldberg locks the door. -day CUT TO: Interior of car. Hannity garrotes Frum, who gets pulled back and kicks his feet at the windshield, which breaks as the car takes off. Hewitt, Podhoretz and Goldberg watch. After the car pulls away, we hear the Title Theme music as they walk through the mall. -day
Comment by The Family — 10/9/2005 @ 11:12 pm
More thoughts on the Harriet Miers kerfuffle After several updates my previous post on this subject is getting a little long. Guess it’s time to start a new one closer to the top of the page. Juliette Ochieng has a well thought out post on the Miers
Trackback by Small Town Veteran — 10/10/2005 @ 3:13 am
You (Kathy) write that, “[A] nominee need not demonstrate that he or she has already judged certain Articles or Amendments to the Constitution in order to be elgible for appointment.” But you miss the point: a stealth nominee does. If Ms Miers were not a stealth nominee, no one would question her legal background or worry about the lack of constitutional law involvement. Stated otherwise, the need for a demonstration that Ms Miers ‘has already judged certain Articles or Amendments to the Constitution’ only becomes relevant to her nomination because of her, and apparently the President’s, determination to proceed as a stealth nomination. If President Bush had frankly answered the question at his press conference as to whether he and Ms Miers had ever discussed abortion by saying ‘yes’, and that that is why he nominated her and why she should be confirmed, then your point would be entirely correct. But he did not, and we are in an entirely different universe. A universe in which those who wish to be placed on the Court WITHOUT revealing their views on the leading issues of the day do in fact have to demonstrate things about their qualifications that previous nominees have not. A nominee who wishes to remain a stealth candidate for the Court cannot enjoy the same standard of review; a stealth candidates very much DOES need to demonstrate ‘that he or she has already judged certain Articles or Amendments to the Constitution in order to be elgible for appointment.’ Because Ms Miers, and the President who appointed her, take the position that we are not to know the views that Ms Miers has on those ‘certain Articles or Amendments to the Constitution’, then it is absolutely essential to her eligibility that she be able to ‘demonstrate that he or she has already judged certain Articles or Amendments to the Constitution’; otherwise, we simply have nothing to do on. It’s he decision. Since she wants to run as a stealth candidate, she, and no one one else, is responsible for imposing this higher obligation on her. If, on the other hand, she were simply forthcoming — as Judges Luttig, Brown, Alito, and many others already have been — about whether she thought Roe should be overturned or Griswold correctly decided, then your statement would be correct. It would not matter at all whether she had previously wrestled with these decisions. But since she has not, and will not, she has imposed this standard on herself. Simply put, you miss the key point here, and throughout your post. We are not talking about a nominee who is going to tell us what she things about Constitutional issues; whether she thinks Griswold or Roe was correctly decided; whether the use of the word “Congress” in the First Amendment actually means “Congress”. All of this will be withheld from the Senate Judiciary Committee and from the world at large that she asks to support her nomination. And that changes everything. All of the criticism you provide about different sorts of experience being useful and desirable in Supreme Justices is entirely corect, EXCEPT for those who present themselves as stealth candidates. If Ms Miers clearly laid out her views on the great Constitutional issues of the day, we would not need to read the tea leaves of her past experience as a lawyer seeking answers to the questions she refuses to answer. No one questions — in any of the articles you cite — whether Ms Miers is sufficiently qualified as a lawyer to sit on the Supreme Court. And we all are open to being convinced by her discussion of constitutional issues that she is. But, given the fact that we have been told such direct and specific discussion of the important Constitutional issues of our day will not occur, then a different analysis of her background is required. Tne columnists you cite only question whether — in light of her specific background — she is qualified to be a stealth nominee. She clearly is not. Just as Justice Souter was not. Ruth Bader Ginsburg, on the other hand, was supremely qualified to be a stealth nominee, because all of her views could be determined from her lengthy constitutional practice and so her refusal to answer substantive questions on the law made no difference. We knew how she’d vote; and she proved us right. With Ms Miers there is no similar way to know; and it is not irrelevant for all of the leading conservative columnists to point this out.
Comment by David Hilton — 10/10/2005 @ 6:51 am
And regarding the comment, from JDRoll I believe, that, “I tend to think that we need to trust the President. We can then really nail him if he turns out to be wrong…..” Yeah right. Notice all the ‘nailing’ that’s going on of the previous President Bush for turning out to be 100% wrong re Justice Souter? And I didn’t see much nailing of President Ford for putting the most extreme liberal on the bench in a generation, in Justice Stevens? Anyone hear any criticism of President Reagan at the time of his death, or otherwise, for picking Kennedy? Oh yeah, I bet George Bush is REALLY afraid of being ‘nailed’ like his eminently wrong Republican predecessors have been . . .
Comment by David Hilton — 10/10/2005 @ 6:56 am
It’s one thing to suggest that despite Ms Miers desire to say nothing about what she thinks on the main constitutional issues of our time, she still should be confirmed for the Supreme Court based on her distinguished record as a constitutional scholar. But a bit more accuracy would not be misplaced in the bizarre discussion of Bush v. Jones. That case had NO, repeat NO, influence on the ultimate outcome of the 2000 election. All that is decided is where Dick Cheney lives. (or lived as of July 2000). Even had the 5th Circuit, or other court, declared Cheney to be a Texan, that would have had little practical effect on the election. The Texas electors would simply — if chose to follow the ruling — have thrown away their Vice-Presidential vote on someone like Colin Powell, and the Republican Senate would have elected Cheney Vice-President. More likely in outcome, the Texas electors would have voted for Cheney all along and the joint Congress, in receiving the votes, would have counted the Texas electors’ votes as cast, treating the Court decision as merely advisory. The precedents are numerous establishing the Congress is the final arbiter of the validity of electoral votes cast. Under no possible scenario could the fact that Bush and Cheny were judicially determined both to be from Texas have affected in any way the election of President Bush, nor likely delayed or otherwise affected the election of Vice President Cheney. If Harriet Miers, like the poster, was unaware of this too, it would be the single most revealing disclosure about her actual ability to understand the Constitution that has been yet put forward. The Twelfth Amendment case, Jones v. Bush, had Ms. Miers lost it, would have overturned both the practical effect of the Supreme Court’s decision in Bush v. Gore and the 2000 presidential election: It would have prevented electors from Texas from casting votes for both Bush and Cheney in the Electoral College.
Comment by David Hilton — 10/10/2005 @ 7:06 am
Vice President Cheney Disses National Review Spent Thursday night at the 25th anniversary gala for National Review. The talk, of course, was Harriet Miers. I did my own informal poll on how it’s trending for her. One conservative commentator I asked immediately launched into a fairly…
Trackback by Reasoned Audacity: Politics in Real Life — 10/10/2005 @ 7:57 am
I respectfully submit Kathy Bay in nomination for the position of vice-blogger. The fact of nomination is what David Hilton is missing in his argument. Ms Meirs is not “running” for anything. She has been appointed by the President, subject to the Senate’s consent. Her qualifications are at issue, not her opinions. Conservatives who insist on a “proven commodity” are no different than liberals who insist on an abortion litmus test. The constitution says what it says and means what it means as it is applied to individual cases. The ability to interpret the constiution to those indivdual caes is really the only important issue. As a stealth cantidate, Meirs is doing just fine. With all the conservative outrage, the Libs won’t have anything to complain about except abortion, and that “dog” won’t hunt any longer.
Comment by Scott Sterling — 10/10/2005 @ 11:24 am
What does your wife think about Souter? It sounds as though he fits all of the criteria, and so we should all just pipe down (or “shut up”). “No more Souters” seems like a convincing caution for those of us who feeled betrayed and insulted by the Miers nomination, but it occurs to me upon reading your wife’s arguments that many Republicans might really be OK with his judging. So: Does Souter suit Mrs. Bay?
Comment by The Voices in Bay's Head — 10/10/2005 @ 11:51 am
Whatever your position on Harriet Miers, I hope you will like the satirical song about it that came to me yesterday; it’s called “Swing Roe, sweet Harriet“. While you’re there, add a verse if you can! Sometimes, you just have to laugh.
Comment by Ben Wisdom — 10/11/2005 @ 1:18 pm
Austin, From what I can see, your wife makes a convincing argument as to why Miers shouldn’t be disqualified from serving on the Supreme Court, but, with all due respect, fails to convince that Miers is the best or even one of the best candidates for the position. For me, this argument doesn’t boil down to “Will Miers make the right judgements?” or “Will Miers be an honorable jurist?” but to paraphrase Attorney General Gonzales today, “Is Harriet Miers the best candidate Bush could pick for the Supreme Court?” In regards to this question, I remain far from convinced. Nice site, BTW.
Comment by C. Brooks — 10/12/2005 @ 12:28 pm
[…] ly, really over the past 25 years, ever since Ronald Reagan first launched it. The recent Bay v. Bay discussion illustrated in microcosm the debate over Harriet Miers. (My wife enjoyed mos […]
Pingback by Austin Bay Blog » Replacing the real supreme: Greenspan — 10/13/2005 @ 8:43 am
Can anyone give me a source for anything that Harriet Meirs has published? –How one writes often gives a clue to how one thinks. I would like to be able to read Ms Meirs’ words in the ionterests of fairness.
Comment by Eleanor LaBerge — 10/14/2005 @ 11:22 am
Where does it say that a nominee has to be the “best candidate?” That’s a very subjective term. Apparently Bush thinks she IS the best candidate or he wouldn’t have nominated her, but there’s no list of criteria anywhere that says who he has to choose. The critics are reacting based on their own internal criteria, but those criteria have produced a goodly number of candidates who faded over time. I reject the “crony” charge because Ms. Miers is an accomplished and prominent lawyer. She couldn’t be where she is without being pretty smart and persuasive. To me a crony is someone appointed as a reward for political services rendered who isn’t particularly qualified. Since I think Miers is qualified, I don’t view her as a crony. I don’t recall her name as a bigtime fundraiser or organizer for Bush’s campaign. She has delivered years of very good public service. Ergo, she’s not a crony. She’s not prominently known as a writer on Constitutional issues. If the Supreme Court opinions I have read are any guide, we’d be better off with someone who says what she has to say succinctly and shuts up. The huge opinions that dwell on minutiae don’t bring credit to the court. There are too many clerks who aren’t necessarily the best writers, but whose prose too often ends up in SCOTUS opinions. I’d prefer that the Justices write their own opinions. I don’t know how Miers will turn out, but nothing I’ve heard so far about her allows me to conclude that she’s the disaster that people like George Will claim she is. It’s the president’s prerogative, not the Boswash Illuminati’s. Why everybody thinks he should consult them is beyond me. Appointing a justice is a craps shoot. I haven’t been all that impressed by past Republican picks, so I’m willing to try another approach.
Comment by AST — 10/14/2005 @ 5:34 pm
Check Harriet Miers on Westlaw. I only find four (4) federal decisions (reported + unreported) in which she filed a brief. (In only one (1) of these decisions was she the lead attorney.) As a point of reference, David Boies filed briefs in 185 federal decisions (reported + unreported). I would imagine that the average attorney who has been in federal practice for thirty years or so would find his name on a brief in between 20 and 50 federal decisions. (Oh, and Harriet Miers’ name appears on zero (0) Texas state court decisions.) The point here is that, although she appears to have been a respected litigator, her practice seems to have been mostly in the discovery/trial work/document prep area, not in the writing area. She has (since she was in law school) never written a law review article. And of course she’s never written any judicial opinions, since she’s never been a judge. What this means is that she has never actually done the one thing that Supreme Court justices get paid to do, which is to write clearly and persuasively about the law. Not just constitutional law, ANY kind of law. If she has never written anything about any kind of law, I don’t see how anyone can possibly know whether she is capable of doing it.
Comment by William Lane — 10/17/2005 @ 2:51 pm