Just Good is Not Good Enough

There are certain stations in life that should demand the highest level of achievement and ability. Being a justice on the Supreme Court of the United States is one of those posts. While a President can have many criteria for selecting a nominee- including ideology, conformability and character- being one of the best minds of the generation should serve as a threshold to being considered. In selecting Harriet Miers as his nominee for the Supreme Court, George W. Bush failed to abide by this simple and essential threshold.

Miers is a good lawyer, maybe even a very good one. She was President of the Texas Bar Association, she was White House Counsel, she even managed a large law firm. This is very impressive- but good is not good enough. As George Will accurately pointed out - "If 100 [top legal minds] 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." That no one would seriously challenge this contention shows that Miers fails the most essential prerequisite for being considered for the Supreme Court.

Miers’ defenders point out that she is not from the judicial monastery and brings a different experience to the bench. First, I am unsure as to why not having been a lower court judge gives one more ability to be a judge at the highest level. Imagine someone arguing that she should be CFO of a fortune 500 company, and responding to the charge that she has never performed high level financial analysis by saying she will bring a different background to the job of CFO. Even more importantly, there are numerous lawyers who have never been judges that would fit the threshold criteria I propose. For example, former Solicitor General Theodore Olson is acknowledged by legal experts on both the left and the right as one of the most brilliant legal minds in America. And if Bush was insistent on picking a woman, he could have selected Maureen Mahoney, who is a former Rehnquist clerk and one of the most respected advocates in the country. There are dozens such names that I or anyone else familiar with the American legal universe would pick before we would even consider mentioning Harriet Miers.

Miers may end up being one of the great justices in American history. She could have the intellect and ability to prove her detractors wrong. Most likely, this will not occur. In selection John Roberts, George W. Bush picked someone who has excelled at the highest level at the most difficult tasks a legal mind can tackle. In moving away from selecting from the universe of the best legal minds of the generation, Bush has made a terrible mistake. Even worse than the one Reagan made in 1981.

Meaning of Miers

Two thoughts:

1) A friend has pointed out that putting up an originalist/pro-life nominee and having that nominee lose in committee and ultimately, after the nuclear option or due to it, on the floor of the Senate would be much worse banishment of Republican jurisprudential views from broad acceptability than is the current, conciliatory stealth approach. Rather than viewing all occasions as an opportunity to confront the adversary, the President has rightly shown good judgement in avoiding unnecessary controversy in a context of generally increasing, incremental acceptance of originalism and restrained jurisprudence.

2) President Bush conducted the most extensive Senate consultation in history, perhaps 70 senators out of 100. Those Senators were more liable to share their considered political judgment in private with the president than with the press (moderate Republicans were key to the vote). Therefore, his decision was 1) a sober analysis of the current political landscape, and 2) an attempt at building bridges with the Democrats. Bush has no more elections to win but he would like to get things done: peace with the Democrats is key to Social Security reform. Harry Ried proposed Harriet Miers...

Barnett On Miers

I am currently too disappointed to make any coherent post on this matter, so I want to just put up this article for consideration: Georgetown Law's Randy Barnett on Why Alexander Hamilton Wouldn't Approve of Justice Harriet Miers

New SCOTUS Pick - a Scalia or a Souter?

It's official: as of 0800 EST, President Bush has chosen Harriet E. Miers, White House Counsel, to replace retiring Associate Justice Sandra Day O'Connor on the US Supreme Court. Apparently Miers was suggested by and has support from both sides of the aisle.

As a Bush supporter, I must say that I am thoroughly unimpressed with his latest pick. It seems that he has found his 'consensus nominee' and has found her deep inside the ranks of the ranks of the White House insiders. She has no judicial experience and no significant paper trail - which, on the one hand, deprives the Dems of ammunition for attacks on her record, but on the other hand strips the GOP base of any assurance that this woman won't turn out to be a David Souter. Is it too much to ask, from a President who has gotten so much support from his base in times of intense political pressure, that a solid, proven conservative/textualist jurist be selected?

I know it's too early in the game to be criticizing this woman, and she may very well turn out to be a highly impressive nominee (see Chief Justice Roberts). Judgment must be reserved until we find out more about her. I hope we're all pleasantly surprised, but mostly, I wish we didn't have to hope.

14th Amendment: Original Meaning?

This site gives an interesting smattering of historical information tending to indicate that the drafters, at least, of the 14th Amendment DID see it as an affirmation of the Bill of Rights to be applied to the states.

I'd appreciate others thoughts on this...

The Onion on an Open Constitution

Originalism Mainstream?

This article by Akhil Amar at Slate is a paean to Originalism, which, he is claiming, is not hostile to liberal views.

It is interesting to consider that, as Brennan feared in the Supreme Court's ruling on the extent of 7th amendment jury right, the Court could become a historical debate club.

Anyone who favors the restraint imposed by textualism must welcome this potential shift of the terrain of battle.

Roberts' "Detachment"

This morning on This Week, George Will pointed out some truly amazing excerpts from Dianne Feinstein’s press release explaining her opposition to Judge Roberts. Here is one such gem:

And I asked him about end of life decisions – clearly, decisions that are gut-wrenching, difficult, and extremely personal. Rather than talking to me as a son, a husband, a father – which I specifically requested that he do. He gave a very detached response.

To quote Will, What in the Name of James Madison does that have to do with judging? I guess Feinstein wanted Roberts to emote about “poor Joshua” in the tradition of Justice (I use this term loosely) Blackmun. The ideal of the judge as a detached decision maker- applying reason, history and text to particular facts to particular factual circumstances- was lost on the Senator.

Aristotle once explained that “The law is reason, free from passion.” What this quotation means is not that human beings should not be passionate about law, or that legal results cannot give us either joy or sadness. Rather that the law should be applied to each person in a fair, impartial and dispassionate way. This is the essence of the rule of laws, not men.

Sacrificial Lamb for O'Conner Seat?

Redstate is suggesting that Bush might put up a sacrificial lamb for O'Conner's seat.

Interestingly, I'm told the White House is more and more leaning toward a sacrifical lamb to call that bluff. They'll put up a good conservative, have the Dems vote against the nominee, and then put up someone else with similar views daring the Dems to block the second nominee too.

I just hope that if Bush is going to try this that he first puts up Brown. I would hope that she would get through, but if not, at least it would be interesting and help the second nominee get through.

Appointment of Justices

I would be interested to hear what others have to say regarding the proper (as opposed to constitutionally required) method for the appointment of justices to the Supreme Court.

Until the last few years, for instance, it was the tradition that senators would defer to the president on the basis of the jurisprudential philosophy of the nominee. Justices Ginsburg and Breyer got votes from most Republicans. Justice Thomas was approved by a Democrat-controlled Senate and such opposition as he got was largely premised on his fitness, though his views did receive considerable criticism. At the ACS debate a couple of weeks ago, both Professors Tushnet and Barnett agreed that the Republican votes in favor of Clinton's nominees was an error.

Some claim that this deference is constitutional in nature: the Congress is bound to allow the president to select amongst qualified candidates. To make this more clear, and in the context of the filibustering of judicial nominations, a Senate rule which required a president to first consult with senators before advice and consent would, according to this thinking, be unconstitutional. To convert senatorial votes on nominees into policy approval would subvert the president's constitutional powers.

Isn't this argument weaker in relation to judges than it is to subordinate executive officials, such as the Secretary of State? That is, if the Republican Senate had forced Clinton to accept a Secretary of State to its liking, that action would have been unconstitutional (Madeleine Albright was certainly not liked by Republicans). Given that the Supreme Court is the head of another coordinate power, shouldn't the presidential power be weaker and the duty of the Senate to confirm according to ITS best judgment stronger?

Or is the tradition correct and the more apparent check of Congress on the Judiciary, the Exceptions Clause, is the appropriate vehicle for legislative power?

If the Democrats do vote largely in favor of Roberts, I think they will strengthen the hand of the next Democratic president, a political consideration. That this consideration seems to be playing so little role in the matter may reflect their honest assessment of their own PRESIDENTIAL prospects...

More than food and clothes

An official in Baton Rogue asked for them. A publisher in Nashville sent them. Sounds commendable enough at a time when aid is pouring into the part of the country torn apart by Katrina. Seems even reasonable that such aid would consist of items local officials were asking for. What's the problem, you may well ask? The items themselves seem to be causing all the controversy. The donors sent the refugees Bibles.

Critics of the Christian publishing house that sent the Bibles (and matched their employees' monetary contributions up to $50,000) say that they would be offended if they received a Bible in such a time as this. (There was no comment on whether they would have been offended by the monetary contribution as well. I assume they would not.) These critics do not seem to realize that, in a crisis, many people draw more comfort from their faith than their full stomachs. If an individual does not want a Bible for whatever reason, no one is forcing him to take one. Why should such an individual compel the donor to stop giving to those that want to receive? Local officials specifically asked for this aid. It would be wrong to deny spiritual comfort by imposing a purely naturalistic world-view on those refugees who believe that life is more than food and the body more than clothes. And is this belief, which at least 83% of Americans hold, really so unbelievably controversial? Most of us have gotten over our insecure belief that we are no more than unfeeling brutes.

The incident brings me back to feelings I had in the wake of September 11. I was at music school, and felt that I was wasting my time there. I could have been studying something that would have been more useful to people in need. A dear friend - a non-musician - stopped me and told me a story of a NY violinist. This violinist had walked around all day and night and played his instrument for the people that were sitting in the streets, walking in the debris, and looking for their loved ones. He wept as he played. People later said that his music meant more to them than the food and water they received from the Red Cross, or the practical physical aid they received from doctors. And why? He was feeding their souls. He was reminding them what it meant to be human. He was reminding them that our bodies house something special and unique. Each man gives what he can: the violinist, the song; the Christian publisher, the Bibles. Why has it become trendy to let our souls starve?

How would I feel if the tables were turned? One might argue the reason the Bible donation sits so lightly on my mind is that I am a Christian. What would I do if a publisher of another faith handed me a Torah, or a Koran along with some money for food? Would I be offended that he was trying to comfort me with a belief I don't share? Not in the least. I would be thankful and grateful to any human being that tried to meet a hunger that, for most people, runs deeper than physical hunger. And I would understand that such a longing is part of our shared humanity.

Religion and music can sustain people in ways that food never can. And woe to the critics that have forgotten this truth. Maybe they should sit in a room filled with Bach sonatas and read a Psalm.

Misha says to start posting again.

so here is my first post of the new school year...

I would very much prefer it if all of the fed soc bloggers made comments about posts in separate posts rather than in the comments section of that post in order to keep the blog going.

I am very happy to be in Randy Barnett's class this semester: Recent Books about the Constitution. I was going to live blog it, but... well... not anymore.

I am also going to try to be less of... well... myself this year. I am off to a really bad start so far, but I will hopefully be a completely different (boring) person by the time I start my professional career.

More posts to come.

Rehnquist In Perspective

The Passing of Chief Justice Rehnquist makes this a sad day, but it also gives us an opportunity to appreciate how the Chief’s tenure has improved American jurisprudence. Coming from the complete liberal activism of the Warren Court and the somewhat bumbling “this far, but no further” Burger Court, Rehnquist’s elevation proved a subtle but important event in Supreme Court history.


There are numerous areas where the Rehnquist era has improved American jurisprudence, but the most important achievement of Rehnquist’s tenure is taking the first step to save the Constitution as a serious limit on the power of the Federal Government. Before the Rehnquist Court, it was orthodoxy that Congress could achieve any end it wanted under its Commerce Clause power. From stopping a single farmer from growing food for his own farm and his own family to enforcing esoteric endanger species protections, the Commerce Clause had become a panacea of unlimited federal power.

In 1995, the Rehnquist Court, for the first time in almost seventy years, struck down a law as exceeding the Federal Government’s power under the Commerce Clause. In U.S. v. Lopez, the Federal Government had the gall to argue that stopping people from bringing guns into school zones was part of the Government’s power over interstate commerce! The Court took a further step in this same direction in U.S. v. Morrison, when it rejected the Federal Government’s claim that its power over “interstate commerce” allowed it to criminalize domestic violence.

The work the Chief and his fellow conservatives on the Court started to save the Constitution is still in its infancy. Lopez and Morrison are still only blips, and as the Raich case illustrated this year, the Court’s left wing has no intention of abandoning the idea that Congress’ power under the Commerce Clause is virtually unlimited. The important work of future justice Roberts and whoever replaces the Chief will be to guide the Court into respecting the role of the national government as one of limited and enumerated powers. I will end with Rehnquist’s simple statement from U.S. v. Lopez:

We start with first principles. The Constitution creates a
Federal Government of enumerated powers.

The greatest honor the Supreme Court can do to Rehnquist’s work and to the Constitution our framers created is to start taking that truth seriously again.

Are You, or Have You Ever Been a Member of the Federalist Society?

Frustrated by the lack of embarrassing personal details and quotes that are outrageous when repeated out of context, the press has decided that the question of Supreme Court nominee John Roberts’ Federalist Society membership is incredibly important. The suggestion, of course, is that membership in the Society portends some extremists positions that are unacceptable for a Supreme Court justice. As president of the Georgetown Law Center Federalist Society, I can tell you that those who attempt to characterize the Society and its member with a broad, extremist brush show only their own ignorance and agenda.

As an excellent op-ed article by Federalist Society member Eugene Volohk explains, the Federalist Society embraces a wide variety of conservative and libertarian viewpoints. The Federalist Society was founded by libertarians and conservatives who felt marginalized by the left wing domination of the legal academia. It has certain founding principles- including broad statements about individual rights and the courts saying what the law is, not what they wish it to be- but those principles are so broad as to encompass the views of most Americans.

My personal experience illustrates the diversity of viewpoints of the people who are both members of the Federalist Society and speak at our events. I have argued with our previous chapter president about military tribunals in Guantanamo (I am against them, she is for them); I have debated with other members about abortion (I am against abortion, they were for it); I have argued with one of my current officers about Bush’s Medicare plan (I am against it, he is for it). At our National Student Symposium, noted liberal Alan Dershowitz debated the use of pre-emption and often took more hawkish views than the Federalist Society member who was debating him. On the panel before that, ACLU leader Nadine Strossen explained that the Society’s founding principles of protecting individual rights are in line with the ACLU’s mission.

I am a proud member of the Federalist Society- but that tells you little about me. You would not know my opinions on any particular issue, or my view of what the Constitution requires. All you would know is that I belong to a Society that believes that the liberal domination of the legal academy does not adequately represent my viewpoint. There are a lot of more controversial aspects to my views- but like with John Roberts- you will not know them by finding out if I paid my 5 dollar yearly dues to the Federalist Society.

(also posted at Watchblog