Tuesday, October 04, 2005

Because Karen Hughes Didn't Go to Law School

Continuing yesterday's thread on Harriet Miers, let's start the morning with the two best pops. First, there's Ramesh Ponnuru (again):
Prior to this year, in the course of your legal career have you ever been involved in any Supreme Court litigation? Have you ever been consulted about such litigation? Has it ever occurred to anyone to consult you about it?

And then there's Patterico:
2) To the “trust Bush” crowd: Bush signed an unconstitutional campaign finance reform law. Bush instructed Ted Olson to support affirmative action in an argument to the Supreme Court. Et cetera. So even if we “trust Bush,” we’re trusting him to carry out his own policy preferences, not to pick a judge who will read the Constitution as written.

3) Even if Miers would vote the “right” way, I just don’t have enough confidence in her candlepower, because I haven’t been given any reason to have confidence. The work at the Supreme Court is not easy. It is not a matter of simply picking the result you like and fashioning an opinion around that, and Justices who treat it that way are (in my opinion) the worst disasters of all — even when they sometimes vote “our” way. They make a mess of the law, and we all have to clean up that mess. . . .

5) A telling comment from Beldar (emphasis his):

Whether he’s right or wrong, Dubya clearly is more willing to rely on his own first-hand experience with Harriet Miers than on what others might tell him, or what he might deduce from the writings of, other potential nominees like Luttig or McConnell or Jones. It’s not his style to sit down and read the several dozen collected law review articles of McConnell or the collected judicial opinions of Luttig or Jones, and whoever else whose opinions he values are vouching for those folks, their vouching apparently hasn’t been enough (as it must have been with Roberts) to overcome his preference to go with someone he’s worked with elbow-to-elbow and face-to-face. To Dubya, McConnell and Luttig and Jones and candidates like them are the “unknown quantities.” They’re all more likely to be “potential Souters” from his point of view.

Right — because he’s too stupid and lazy to put in the work to figure out that they would be tremendous Justices. It’s “not his style” to make this decision intelligently.

Then there's this old Legal Times article, which is full of interesting nuggets. Such as:
One former White House official familiar with both the counsel's office and Miers is more blunt.

"She failed in Card's office for two reasons," the official says. "First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents."

Those who have risen to defend the Miers choice have mostly centered their arguments around the notion that Miers will "vote right"--meaning, I suppose, that she'll understand she's in over her head and will simply follow Justice Roberts.

Perhaps I'm wrong, but I always thought that conservative opposition to what has happened to our courts was based on an objection to liberalism's fetish for outcome-based legal theory. That's why conservatives have spent two generations producing heavyweight intellectual lawyers who could challenge the very underpinnings of legal progressivism. The goal--or so I thought--wasn't simply to get enough votes on the Court to get "our" way on Issue X. It was to put great minds on the Court to challenge the prevailing legal culture.

To accept Miers simply because she votes "our" way is to accept the politicization of courts and to accept the progressive idea that outcomes should determine the course of law.

Bonus Bork Note: I'm not especially troubled by Miers's list of political contributions--I get that she was a Democrat back before conservative Dems fled the party in the South. (Also, there's nothing wrong with supporting or having supported Democrats--that shouldn't be a disqualifier if a person is the best guy or gal for the job.)

But I would point out the irony of the fact that Robert Bork--a serious conservative legal mind--was rejected by Senate Democrats in October of 1987 with Senator Al Gore, among others, voting against.

Four months later, Miers gave Gore $1,000. Nine months after that she gave the DNC $1,000. So a woman who from an intellectual standpoint couldn't carry Bork's briefcase and who financially supported the Democrats who destroyed Bork just a few months after that sorry display, is now being sent to the Supreme Court--by a Republican president.

The world is a strange place.


Anonymous said...

Interesting note on Bork. I've never understood how the conservative movement can praise both Bork and Justice Thomas. Thomas claims to base his jurisprudence on theories of natural law. Yet possibly the single most fundamental element of Bork's jurisprudence is a rejection of natural law and other nontextual theories as a basis for judicial action.

Bork: I am far from denying that there is a natural law, but I do deny both that we have given judges the authority to enforce it and that judges have any greater access to that law than do the rest of us.

Thomas: The higher-law background of the American Constitution, whether explicitly appealed to or not, provides the only firm basis for a just, wise, and constitutional decision.

Both men cannot both be right. Either Bork is right and Thomas is a dangerous fool, or Thomas is right and Bork is a myopic fantasist. Praising one without rejecting the other is akin to believing that the earth is both a flat disc and a sphere. It may be one or the other, or neither, but it cannot be both. So if Thomas is a good justice, then the Senate was right to reject Bork and Miers deserves praise for supporting those who opposed Bork.

Anonymous said...

If you're suggesting that Karen Hughes is somehow unqualified to serve on the SCOTUS simply because she lacks a law degree, well, I think that only goes to show your obsession with qualifications and competence.

Myself, I happen to disagree with the president's selection. Not because of any fault of Ms. Miers--heaven forfend!--but because if you're looking for a justice with the purest heart, who could possibly be better qualified than Laura Bush?


Anonymous said...

Besides, I happen to have it on good authority that Karen Hughes earned an A- in Con Law at SMU.

So there.

Serenity Now said...

Anonymous (10:08 AM): I've never understood how the conservative movement can praise both Bork and Justice Thomas. Thomas claims to base his jurisprudence on theories of natural law. Yet possibly the single most fundamental element of Bork's jurisprudence is a rejection of natural law and other nontextual theories as a basis for judicial action.

Thomas also claims to be a textualist, and his SC opinions are consistent with textualism. Mystery solved.

Patrick O'Hannigan said...

Re Bork's comment, context for it would be helpful. I've always been under the impression that judges don't enforce law, natural or otherwise, they interpret it. If I'm right, Bork left himself some wiggle room.

Moreover, the fact that judges don't have "greater access" to natural law than the rest of us doesn't speak to the utility or wisdom of appealing to natural law in argumentation; it's just another way of recognizing that we're all human, whether we wear judicial robes or not. Bork saying, in effect, "I put my pants on one leg at a time just like you" doesn't address the validity of natural law one way or the other.

Anonymous said...

Thomas' argument is that the Constitution presupposes "natural law" like the Declaration of Independence explicitly does. It is a Lincolnian argument. He believes without it the Constitutional language is unmoored and easily manipulated by the flavor of the day. Bork believes that natural law itself is unmoored and allows too much judicial leeway. However, an "originalist" and a natural law thinker will almost always arrive at the same conclusion. Evidence I think that the framers had a concept of "natural law" in mind. Either approach binds a judge to something other than his own views however and is an acceptable objective way of looking at the Constitution.

Gore in 88 was, in the public mind, the conservative pro-life, pro-gun strong on defense Democrat. That someone unwilling to dump the party of her ancestors found the most rightward southern alternative and contributed is not much of a problem. The first Bush looked almost like a typical Ct. Shayes Republican before Reagan made him Veep. It is not apparent to me that a casual observer would think Bush would be more conservative on domestic and foreign policy given their respective pre-veep or presidential runs.