Wednesday, October 05, 2005

Why SMU Matters (a little)

If I seemed to be harping a little bit yesterday on Harriet Miers's educational pedigree, I would remind readers that it was Beldar who brought up her second-rate schooling as an argument for her. Beldar suggested that going to the "second best law school in Texas" was a mark in Miers's favor. To my mind that seems like a fairly desperate claim. If one is forced to argue that attending SMU is a reason to confirm Ms. Miers, then one must be woefully short on other supporting arguments.

But why should it matter where Ms. Miers went to school? If Miers had a long list of serious intellectual achievements or had created a long trail of serious public thought in the course of her career, then where she went to school would be moot. But absent any public evidence of intellectual horsepower (and faced with anecdotal evidence of the opposite) the fact that Ms. Miers went to a second-rate school does seem at least a little bit telling, if not overly important.

David Frum makes this point well:
The problem with Harriet Miers is not that she lacks formal credentials, although she does lack them. Had the president chosen former Solicitor General Theodore Olson, or Securities and Exchange Commission chair Christopher Cox, or former Interior Department secretary Gail Norton, nobody would complain that they were not federal appeals court judges.

Or had the president named Senator Jon Kyl (LLB, University of Arizona) or Senator Mitch McConnell (LLB, University of Kentucky) or Edith Jones Clement (LLB, Tulane), nobody would be carping at the absence of an Ivy League law degree.

Those who object to the Miers nomination do not object to her lack of credentials. They object to her lack of what the credentials represent: some indication of outstanding ability.

The objection to Miers is not that she is not experienced enough or not expensively enough educated for the job. It is that she is not good enough for the job.

Why is being smart important? Again, Frum:
All Americans are entitled to know that those judges who exercise the power of judicial review have thought hard and deeply about the immense power entrusted to them. If the courts were just about getting the votes, then the president should have chosen Dennis Hastert for the Supreme Court. But to change American law, it's not enough to win the vote count. You have to win the argument.

I would note here two things:

(1) It is absurd that Miers supporters are using, as the bulk of their argument for her qualifications, her time as head of the Texas Bar Association and her time running a law firm. If heading a Bar Association is such good preparation for the Supreme Court, why not nominate Martha W. Barnett, who was the first woman president of the entire American Bar Association? Or, if the size of the Bar Association doesn't matter, then why not nominate Gary D. Stott, who was president of the Central Utah Bar Association (and, as a bonus, went the very best law school in Utah and, as a double-bonus, is an actual judge; if you care about that sort of thing).

And second, if the skills of running a fair-sized regional company are so important, why not nominate Steve Jobs or Martha Stewart or Jack Welch or Rupert Murdoch, all of whom have run much larger companies much more successfully.

The reason Miers's supporters are using these patently ridiculous claims to support her are, of course, obvious. As George Will notes:
[T]here is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.

If John Kerry had produced a nominee with a comparable résumé, the Republicans now going to the ramparts for Miers would be--rightly--assailing that nominee for being completely unqualified for the High Court.

(2) Even if Miers would "vote right" as a Supreme Court justice--and I assume she would--that isn't the point. Even if Miers was the mythical fifth vote to overturn Roe--something I dearly want to see in my lifetime--conservatives should be concerned with bigger things, which is to say the legal culture itself.

To turn away from that now--at a moment when the conservative party ostensibly controls both the White House and the Senate--is to abandon principle for rank politics. If we were concerned with simply getting someone on the Court who would "vote right," then Bush should have nominated Gary Bauer or Rick Santorum.

A final note: While this is a disastrous moment for the Republican party, it strikes me as a pretty good moment for conservatism. It's nice to see that most conservatives are still willing to buck their political party on what they see as a violation of principle. (Again, even if you used a time-travel machine to assure conservatives that Miers would "vote right" for the next 20 years, I don't think they'd change their opposition.) I don't know that, in a similar situation, liberalism would muster the same fight within the Democratic party.


J.V. Last's Editor said...

Or, as this appeared in the first draft:

A final note: While this is a disastrous moment for the Republican party, it strikes me as a pretty good moment for conservatism...

While this is a disastrous moment for George Bush, it strikes me as a pretty good moment for people like me who have wanted to slap the smirk off that jackass cowpoke preppy's face for six years or so and now have pretty much every smart person in America trying to cut in front of me in the slappin' queue.

Anonymous said...

It's nice to see conservatives finally noticing some of the obvious flaws of the Bush Presidency.

I'm not sure why it took you guys so long to notice that the Republicans have been spending like Tip O'Neil's wet dream the last few years, or that President Bush often prefers loyalty over qualifications, but welcome to the party.

As a centrist Democrat, I frequently prefer Republican judical nominees over my party's. I sometimes disagree with the result of Justice Scalia's reasoning in his opinions, but without exception he presents a clear, compeeling rationale for his arguments based on a consistent judicial philosophy. By contrast, even when I like the way he votes, when I read the opinions of Justice Breyer, I can't help thinking that he wouldn't know the law if it but him on the, well, you know.

But at least Breyer actually possessed traditional qualifications for the court -- appellate court experience, clerking for a supreme court justice, etc. If supporting the president and going to church are the only qualifications for being a supreme court justice, perhaps he'll appoint his pastor to the bench next.

Anonymous said...


Nice post but on a small point of logical reasoning in your first paragraph, how does you get "second-rate" from Beldar's description of SMU as the "second best law school in Texas"

According to that logic that would make (depending on how you rank them) NYU Law School second-rate compared to Columbia? Or does being in fly-over country mean that we are only allowed one first rate law school per state?

Once again I don't know much about Miers and I am keeping my powder dry till I do but Beldar's post brought up a number of interesting points.


Anonymous said...

A lot of what JVL says here is correct. But there are also several things that are wrong.

First, as to his point that it "is absurd that Miers supporters are using ... her time as head of the Texas Bar Association and her time running a law firm. If heading a Bar Association is such good preparation for the Supreme Court, why not nominate Martha W. Barnett ... And second, if the skills of running a fair-sized regional company are so important, why not nominate Steve Jobs ..." Maybe because Martha Barnett was never White house counsel. Maybe because Steve Jobs was never a lawyer. The point being made surely is that all of these attributes, taken together, qualify her. It's as if JVL opposed Roberts and said "if Roberts' two years on the DC Circuit were so important, why not nominate Judge Harry Edwards - he's been on the DC Circuit 25 years." No one would make such an absurd argument against Roberts, and the analagous arguments with respect to Miers' bar association service and her running a law firm are likewise absurd.

Secondly, with respect to this: "the skills of running a fair-sized regional company are so important..." Does JVL not understand the difference between running a law firm and running a non-law related company? Maybe running a law firm indicates something about you LEGAL abilities rather than merely your business abilities? Now, I am a lawyer in a pretty big firm, and I know that the managing partners of firms aren't always the best lawyers in the firm. But, on the other side of the coin, they are almost ALWAYS at least good lawyers. So her having run a large firm certainly provides evidence of her legal ability in a way that running a non-legal business doesn't.

Third, on this: "Again, even if you used a time-travel machine to assure conservatives that Miers would "vote right" for the next 20 years, I don't think they'd change their opposition." I don't think that's true at all. I think most (not all) of the opposition is rooted in a fear that she's Souter In A Skirt. As an alternate hypothetical to your time machine try this: she was E-I-C of Harvard Law Review, clerked for O'Connor, and rose to become head of Williams & Connolly, but nothing at all is known about her views on most legal matters and there is a good chance she's Souter. Still a lot of opposition? Yeah, I think so. Just look at the opposition to, say, Joy Clement when it was rumored she'd be chosen.

Other than that, good post. And JVL is right to oppose her.

Robert said...

I'm not happy with the Miers nomination or her supporters and their "shut up and salute" mentality (yes Hugh, that's you). But one of the most amusing/amazing things going is this reliance on "she was White House counsel." Yeah, for SIX MONTHS! Not exactly a big resume boost there. If she'd had the job for longer, it might mean something, but it's just not credible to claim her tenure there qualifies her.

Anonymous said...

Her resume reminds of the world's tallest midget.

Anonymous said...

It really does seem that you dislike her non-Ivy League credentials and background or else you wouldn't have numerous posts about it.

If you take issue with her accomplishments (or lack thereof) since her graduation that is fine: however, you (and others) do seem a bit fixated on what law school she went to.

Anonymous said...

Yeah, I believe Souter went to Harvard.

JSU said...

Anon 1:52 -- Don't necessarily think so about the qualifications point. The outrage would be a lot shallower for Mahoney, I think, who's pretty much your hypothetical plus an outrageous record on racial preferences. Because, you know, she's actually qualified and not one of POTUS's Texas cronies. said...

Boy is this nomination getting folks fired up. My two cents on JVL's most recent post. I think the idea of qualifications for SCOTUS have become a media myth. The point one of the commentors made, "Where did [Marshall] go to law school?" is a good one. Much of SCOTUS turn to legislating fromt he bench has been via many of these superbly qualified lawyers who upon nomination and confirmation decided that rather than interpreting the Constitution, they were destined to find meanings in Penumbras or some such nonsense. Or better the idea that foreign law or international law has some relevance in the USA. Hogwash. I want one thing from my Justices, for them to know the job they have and execute it to the best of their abilities. Which simply said is I don't make laws, I interpret them. Anything beyond that is gravy for me at this point. Not that I would send the kid from the Far Side's school for the gifted or anything, but a good mind in a good lawyer who understands the Constitutional role of SCOTUS is fine.

To accept that the position of Supreme Court Justice requires without exception some extraordinary credentials says that the Constitution is less an instrument of the people then it was intended. Reasonable folks can disagree. Unreasonable folks, you all can cuss a lot!

Anonymous said...

Robert Jackson went to law school at Albany Law School (and it was only for a year- gasp!) What's that, like the 10th best law school in New York?

Come on, it is silly to concentrate on her law school alma mater. Criticize her accomplishments.

Anonymous said...

"Criticize her accomplishments."

I would ... if she had any.

Anonymous said...

I don't know that, in a similar situation, liberalism would muster the same fight within the Democratic party.

Anyone who believes that liberals would not fight the Democratic Party's elected leaders over an issue of perceived expediency trumping principles just hasn't been reading the newspaper for the last forty years. That's what liberals do. It's all they do anymore, especially since Paul Wellstone died. It's why Democrats don't win elections, and why nobody really spends much time worrying that Democratic politicians might become extremists by "playing to their base" -- to the extent that Democrats have a base, that base defines itself by its opposition to the pragmatism of Democratic party leadership. You can't join an extremist who defines his extremism as principled opposition to you.

Anonymous said...

epinionated2005 has it right. I am more worried about clever intellectuals who can use all manner of twisted logic and reasoning to find evidence of "chilling" and "penumbras" etc... that have no basis in the text of the Constitution. Interpreting the Constitution should not be seen as some sort of elaborate epistimological exercise (wow, alliterate much?), and that it has become such an exercise is part of the reason we have such a lack of respect for the law and judges in today's society (remember the NJ Sup Ct in the Torricelli election law case? 39 days doesn't mean 39 days- who but an intellectual could come up with that?) None of this is an excuse for the cronyism which is apparant in this instance, but the idea that only a special few are worthy of the Supreme Ct. is unfounded, and indeed part of the problem with the application of legislation in this country inthe first place. After all, as noted above, a traditionally "great" pedigree has done nothing to stop the complete bastardization of the enumerated role of the Court by so many of it's current and past members.

Drew said...

This is quite a rant coming from JV, I'm quite surprised. All but calling Miers an idiot as liberals do to Bush.
Second-rate school? Quite elitist, JV.
JV has been very supportive of Christians in the I would assume he knows that most if not all of Miers' liberal/dumb take on social issues were in her pre-saved days.
JV should give the lady a chance to face the senate commitee and save the elitist opinions regarding the her intelligence until he has some evidence to back it up.

Anonymous said...

So for everyone who is so quick to say that no particular history of accomplishments is necessary or even useful for supreme court justices, where do you draw the line? If Bush nominates his postman, would you support him, simply because he's a Republican? Would it be too "elitist" to say that someone with no knowledge of the law shouldn't be on the Supreme Court?

Maybe if you suck up to Bush enough over his nominations, you can be the next FEMA director.

Anonymous said...

Anon 6:02, come on. He didn't nominate the postman. He nominated someone who knows the law. Bush knows the woman and she has provide counsel to him in the past. I suspect he didn't choose her as his attorney just because she was a the only available attorney.

It is elitist to think that only Cambridge, New Haven and Palo Alto can produce Supreme Court Justices.

Anonymous said...

Why don't Republican Senators draw the line and tell Bush that enough is enough. They should vote "no" on Miers'. I think that would send a pretty good message to the White House. Senators from all parties should, on behalf of their constituents, demand a decent candidate by voting against Miers.

TopCat said...

Iagree with you 100%,here's a comment I posted at Volokh yesterday on this issue:

Will speaks for most conservatives:we did not want another O'Connor or Powell (at best) we wanted someone who would move the legal profession by the power of their arguments written from the bench. Here are my reasons for recommending a no vote by Republican Senators:

a) Justice O'Conner had a more reassuring resume of real world experience; i.e., state legislature leader, fought for Reagan against Jerry Ford in the Republican primary, etc.

b) She's a wide-eyed naif who thinks that Bush is "the most brilliant man I've ever met." What happens if she establishes a girls club with Ruth Ginsburg and decides she's really the most brilliant person in the world?

c) I do not think Souter was a closet liberal when he was nominated; I think he was a solitary, eccentric Milquetoast that got dominated by his clerks and the Court culture. Sound like anybody?

d) Conservatives have busted their butts for 30 years for this opportunity, and every time we have the football snatched away at the last minute. We are tired of playing Charlie Brown to the Bush family's Lucy.

Kevin said...

I am more worried about clever intellectuals who can use all manner of twisted logic and reasoning to find evidence of "chilling" and "penumbras" etc...

Having grown up in the Mountain West, and graduated from a college that no one has heard of (and a law school that few have), I bow to no one in my anti-elite prejudices.

But still, this "we don't need no Justice-folk what's too smart or have too much book-learnin'" strain of argument scares me.