October 20, 2005

Harriet Miers Nomination - A Truly Bipartisan Disappointment

From the Washington Post:

The top two members of the Senate Judiciary Committee yesterday complained about the written responses they received from Supreme Court nominee Harriet Miers this week, and warned her to expect tough questions from Republicans and Democrats alike when her confirmation hearing begins Nov. 7.

Barely concealing their irritation during a 35-minute news conference at the Capitol, Chairman Arlen Specter (R-Pa.) and ranking Democrat Patrick J. Leahy (Vt.) called the lobbying on Miers' behalf "chaotic," and said the answers she provided Monday to a lengthy questionnaire were inadequate. "The comments I have heard range from incomplete to insulting," Leahy said.

They sent Miers a three-page letter asking for more detailed responses in several areas, and Specter said he has asked the Bush administration for more documents concerning her work as White House counsel. Specter said Miers must provide "amplification on many, many of the items" included in the first questionnaire....

Announcing plans to start the hearing Nov. 7 despite Democrats' request for more time, Specter told reporters: "This is going to be an unusual hearing where I think all 18 senators are going to have probing questions." The panel has 10 Republicans and eight Democrats.

The two committee leaders -- both of whom voted to confirm John G. Roberts Jr. as chief justice last month -- said they are bothered by accounts of telephone conference calls in which supporters of Miers reportedly have assured conservative activists that they will be happy with her political views on abortion and other subjects.

"I think it's been a chaotic process, very candidly, as to what has happened, because of all of the conference calls and all of the discussions, which are alleged in the back room," Specter said. "We're looking into them."

At yesterday's news conference, Specter appeared to be annoyed with Miers on several points. He said his staff gave him a "big binder" of legal cases she had handled in private practice, but "she gave us a skimpy little group" of material describing those cases in response to the questionnaire's request for details of her most important cases. "No reason we should know more about her cases than she does," he said.

Specter said he remained perplexed by a disagreement Monday stemming from his meeting with Miers in his office, after which their accounts differed on what the nominee had said about Supreme Court rulings that preceded Roe .

In dealing with 11 Supreme Court nominees, Specter said, "I've never walked out of a room and had a disagreement as to what was said." He smiled politely as Leahy said, "I've never known him to make a mistake on what he heard."

Yep. This nomination is still not looking good...

It gets worse. Evidently, Harriet Miers is already screwing up her answers to constitutional questions:

Meanwhile, several constitutional law scholars said they were surprised and puzzled by Miers' response to the committee's request for information on cases she has handled dealing with constitutional issues. In describing one matter on the Dallas City Council, Miers referred to "the proportional representation requirement of the Equal Protection Clause" as it relates to the Voting Rights Act.

"There is no proportional representation requirement in the Equal Protection Clause," said Cass R. Sunstein, a constitutional law professor at the University of Chicago. He and several other scholars said it appeared that Miers was confusing proportional representation -- which typically deals with ethnic groups having members on elected bodies -- with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations.

Not a good sign.

Quite frankly, I do not like what I have heard as far as her views on affirmative action and abortion. While I would like to see the nomination pulled as a result of her stand on these issues, however, I do believe her views on specific issues should not be a litmus test. I do, however, believe that she must be qualified for the job. What do we know about her qualifications? Not much.
As a result, I have, unfortunately, little confidence in Ms. Miers' qualifications for this job. Let's look at what we do know:
  1. Clearly, her mistake on the Equal Protection Clause was ridiculous and revealed that she has much to learn in constitutional law. More important, however, it revealed that she is not careful and evidently had no understanding of the issue. One would think that, if Ms. Miers were a good lawyer, she would have researched her answer to the issue and would have therefore avoided her error.
  2. Ms. Miers has never been a judge, however, that certainly is not a requirement or prerequisite for becoming a good Supreme Court Justice. While I wouldn't count her lack of judicial experience against her, it does not advance her cause.
  3. Ms. Miers was the first woman hired by Locke, Purnell, Rain and Harrell. Big deal. An individual's gender has nothing to do with whether she is qualified to be a Supreme Court Justice. The fact that she was the first woman to join a particular firm says more about the backwardness of the firm she chose to work for than it does about her.
  4. Ms. Miers worked for a large, prestigious law firm. This means nothing. I am a partner of a large, prestigious law firm, however, I will be the first to admit that my firm has, at times, made mistakes in hiring (and election to partnership). Law firms do not always hire the best and the brightest. There are, after all, many people who get jobs because they are politically connected, have books of business, or are otherwise friends with other members of the law firm.
  5. It is unlikely that she dealt with any constitutional issues while employed for her law firm. Typically, cases with constitutional issues are not cases that large firm litigators will accept.
  6. Ms. Miers was the first female president of the Texas Bar Association. Big deal. An individual's gender has nothing to do with whether they are qualified for a job. Moreover, at most, this shows that Ms. Miers is politically connected. Individuals are selected for such positions because they are, in essence, popular amongst their peers - not because they are the best lawyers in a given state.
  7. Ms. Miers ran the Texas Lottery. Need I address this? It has nothing to do with being a Supreme Court Justice.
  8. The National Law Journal names her as one of the nation's 100 most powerful attorneys and one of the nation's 50 top women attorneys. This is impressive, I guess, however, doesn't this have to do more with (a) where she practices law and (b) who were here clients? In other words, if she were not a White House Counsel and had not previously been a female managing partner of a huge law firm, would she still be one of the "most powerful" attorneys? I don't know. I guess it depends on what criteria they used....
  9. Ms. Miers was the managing partner of a prestigious law firm. Does this make her qualified? I would argue that the answer to that question is "not necessarily". It is certainly an admirable accomplishment. However, it is not necessarily an endorsement that she was a good attorney. The election to managing partner is more often than not a reflection of the fact that the person (a) has a big book of business, (b) plays corporate politics well or (c) is good at running a business. In fact, a person, who is elected managing partner of a large firm, spends very little time practicing law. Rather, they spend the majority of their time running the law firm as a business and participating in client development activities.
With respect to her qualifications, however, do not misunderstand me - my complaints are not that she graduated from SMU as opposed to Harvard or Yale. I do not share Ann Coulter's sentiment that the Supreme Court Justices must only come from the Ivy League. I have faced or dealt with enough lawyers from Harvard, Yale, University of Chicago and Northwestern to know that such schools produce just as many incompetent or unsuccessful lawyers as the lesser tier schools. Any practicing lawyer will tell you that school pedigree does not turn someone into a good lawyer. I cannot count the number of associates from Ivy League schools have turned out to be such huge busts at my firm. I have found that it is more important to have meaningful work experience.
It looks like Ms. Miers was chosen because she was a political crony. If this is true, and she turns out not to be qualified, then I am really disappointed.
As a lawyer, nothing frustrates me more than unqualified political cronies being placed on the bench. I have learned to accept it at the lower court levels as an inevitable byproduct of our political system. However, I always have had high respect for all of the justices on the Supreme Court - even those that do not share my political views (for example, I respect Ruth Bader Ginsburg's qualifications and intellect - even though I feel she more often than not reaches the wrong result). It is very unfortunate that cronyism is now reaching the Supreme Court.

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