Saturday, October 08, 2005

Am I the only one who smells a rat?

I've decided to become a conspiracy theorist, because nothing in this world makes sense anymore, and this is much more fun than being normal.

I didn't get to watch the Roberts hearings, having been preoccupied with moving across the country and starting life as a bona fide adult with a full-time job in a major law firm. Thus I also didn't get the chance to blog about what was irritating me for that whole process. I am pleased to hear, however, that at least from the confirmation hearings Roberts seems more moderate than one might have expected -- though he would hardly be the first to change colors post-confirmation, if those hearings prove misleading.

But I'm not posting to talk about Roberts. Everyone seems up in arms about Harriet Miers. In typical Chicago-snob fashion, Prof. Stone criticizes her "lack" of "qualifications" (this "lack" being simply that she didn't go to the absolute best school, e.g., Chicago, and has had an "indistinguished" career as a lawyer who doesn't look much different from most, on paper, which as every lawyer or politician knows is all that matters). Certainly, had she gone to a school like Chicago, her brilliant journal and clerkship advisors would have set her soundly on the path to greatness, and any time she tirelessly invested in extracurricular (both academic and nonacademic) work she performed in law school would have been justly rewarded. *snort*

Bitter, me? Nooooooo.

Some have tried to hide their haughtiness by pointing, not to her education, but to her work as an attorney to show that it's "lacking." Slate demarcates the differences between Ms. Miers and my beloved Justice O'Connor by suggesting that she simply hasn't done enough to overcome her implied deficiencies. Here's the interesting thing to me: the main difference is that Ms. Miers stuck to strictly law-related pursuits while Justice O'Connor branched out into politics. Either one of these seems to me a fine way to prove oneself. But Slate's article, as well as other criticisms, belies two deeper prejudices: first, anti-lawyerism; second, partisanism.

Criticisms leveled at Ms. Miers all seem to talk around the issue. She doesn't have experience as a judge. Well, other justices started out at the Supremes before acquiring any experience as judges. Okay, comes the response, but she doesn't have the other great credentials other justices had: experience as oral advocates before the Court, for instance. Political success as respected senators and governors. Teaching experience as law professors. Ms. Miers, the argument goes, didn't do any of these things.

With the possible exception of SCOTUS oral advocacy, these criticisms evidence a supreme arrogance and fundamental misunderstanding of the practice of law. Politicians and law professors, as much as they may be brilliant thinkers, in many cases are horrible lawyers. Many of the acclaimed law professors under whom I studied had little to no practice experience (leaving one to ponder the appropriateness of the old adage, "those who can't do, teach" -- not to malign my teachers, many of whom were good people as well as great thinkers). Legislators, whether because they're beholden to special interests or merely incompetent, write laws so obtuse that lawyers and judges are subsequently blamed for the unpredictable fallout of their application. Lawyers, however, have the one thing that should be thought the most important in selecting a judge: a tangible, actual understanding of the law and how it works. If they didn't understand it, they would have lost their jobs long ago. Thus, the criticism that Ms. Miers has spent her whole life concentrating on being a lawyer is baffling -- she's spent her life excelling at precisely the sort of work she'll be expected to evaluate! Who better to serve as a justice?

But, ah, critics note, she doesn't have experience dealing with the kinds of issues likely to reach the court. Here's the interesting thing. Noted conservatives like Ken Starr have expressed disdain for clerks' preferences for sexier First Amendment cases and the like. The tide began turning just a few short years ago and a glance at this year's docket reveals a substantial number of cases dealing with corporate, work-related, and basic procedural concerns -- all of which a longtime litigator from Texas could be expected to have plenty of experience with. Corporate litigation is far from a saucy intruder, as far as the Supreme Court is concerned. Just because Ms. Miers hasn't argued in front of The Court Itself, doesn't mean she isn't well-equipped to deal with the cases it hears.

As to partisanship, that one's pretty clear. Conservatives feel betrayed by Bush's pick. Some even play lip service to the notion of appointing a woman (though the clear preference is for someone like Luttig or McConnell), but claim that they're worried that she's not clearly a legal conservative "in the mold of Justices Scalia and Thomas." It's one thing to admit that you prefer the law to be a certain way. But it's another to claim valid criticisms of a judicial candidate that are based on nothing more than clear-cut partisan ideology. It's as though we're back to all the "litmus test" nonsense -- conservatives, made anxious by Bush's latest pick, have dropped all facades of judicial neutrality and are coming right out to lambast Miers on ideological bases. A textualist like Scalia would be ashamed.

You're likely wondering, now, where I get to the conspiratorial part. Here it is. Jokes about Bush's intelligence aside, did he know that Miers would be greeted with this kind of reaction? Is he departing from the beaten path so that he can turn around and nominate, say, Luttig, and minimize the valid criticisms leveled against him for adding two more white men to the bench? He's certainly backed the Democrats into a corner. If Ms. Miers is not confirmed, he's got a built-in comeback to the dems' certain complaints about the lack of diversity: "I tried to give you a woman, and you rejected her. So here's my next choice." Republicans, of course, rather than offering grudging support (you'd think Roberts might have pacified them. But I supposed there is no "enough" for politicians), will be poised to demand a legitimate Scalia clone. Is this a crafty Bush ploy to stock the court with more conservative white men?

Maybe I'm just talking crazy. Maybe I'm more insightful than people give me credit for. Maybe I'm just trying to find something to complain about. Whatever the case, though, I say, Give 'em hell, Harriet. I hope you show them why they can't judge a book by her cover.


At October 11, 2005 at 3:23 AM, Anonymous Anonymous said...

No one, but no one, can wtite or think like Scalia.

He is off the charts brilliant.

Another Scalia? No in our lifetime.


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