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October 21, 2005


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John Finley

The defenders of Miers’ nomination say that Miers is qualified. Essentially, they claim that she is a complex litigator with excellent case management skills, but not a constitutional scholar of the first order. The former is more relevant to adjudication, they say. Fine. Let us take the premise seriously. In that case, then, it seems the Senate should ask her questions related to complex litigation and case management, not obscure constitutional questions.

1. What does she think of Lon L. Fuller’s “The Forsm and Limits of Adjudication”? Has she read it?
2. Does she have an understanding of comparative procedural systems in practice? For instance, what does she think of Mary Ann Glendon’s analysis of foreign legal systems in “Comparative Legal Traditions”?
3. What does she think of using preclusion rules as an alternative way to overcome joinder complexity? In particular, what does she think of Justice Rehnquist’s dissent in Parklane Hoisery Co. v. Shore?
4. How does the Due Process Clause figure in precluding persons that did not participate in a prior case? In particular, what is her opinion of Richards v. Jefferson County, Alabama, a SCOTUS case?
5. What does she think of preclusion after notice and opportunity to intervene, particularly in the context of reverse discrimination suits where consent decrees have already been entered? For example, Martin v. Wilks, another SCOTUS case? What is her opinion about Congress’ response to this case, with 42 U.S.C. sec. 2000e-2(n)?
6. What is her opinion of the Eleventh Amendment jurisprudence we have thus far? Does the text govern? How do we reconcile the text of the Eleventh Amendment and the subsequent jurisprudence? What is her opinion of the diverging approaches of doing so?
7. Is she concerned about the limitations on aggregation imposed by territorial jurisdiction? How, in her opinion, does this play into asbestos litigation? Does she have an opinion of In re Asbestos Litigation?
8. Does Strawbridge v. Curtiss announce a constitutional rule, or is the diversity required for diversity jurisdiction by the constitution broader or narrower than what is promulgated by that case?
9. When is it appropriate for judges to use the All Writs Act? Was the Terri Schiavo case an example?
10. Is compulsory consolidation in bakruptcy cases fair to litigants? Why or why not? Do litigants have a constitutional right to be masters of their own complaints?
11. What are relevant policy concerns of class actions? Discuss Hansberry v. Lee and In the Matter of Rhone-Poulenc Rorer Inc. In particular, is Judge Posner wrong? Why or why not?
12. Are there constitutional or jurisdictional limits on mandatory class actions? If they exist, how do they play into the case of In re Federal Skywalk Class? Was the outcome of that case justified? Why or why not? What conceptual framework would you use to decide that case today?
13. What is federal common law? How is it different from general common law in federal courts? Discuss In re Agent Orange.
14. You are on record as opposing judicial activism. Which judge is more activist in your view: Jack B. Weinstein or Edward Becker?
15. What is the proper use of a court’s remedial powers? Discuss Missouri v. Jenkins. In addition, what is the rightful position, and what are some common critiques of this analytical tool?
16. How much power should magistrate judges have in complex antitrust cases? How could overpowering magistrate judges possibly conflict with the guarantees of the 7th Amendment?
17. You have experience with antitrust law. Do you agree with the result in Topco? What could possibly be wrong with it?

I doubt that Miers could answer these questions. If she cannot, but she has a high deference rate to the Executive and votes to uphold Republican precedents -- in order words, acts like any other recent Republican appointee -- is she then qualified despite her lack of knowledge in her alleged field of expertise? Is political preference enough?


Homo sapiens and objectivity are a oxymoron.

Eric S Cioe

Chief Justice Rehnquist has died.

Could we get any sort of idea of how Roberts might vote based on his patterns on the DC Circuit in cases like these? Does he follow the trend and tend to vote and "talk the talk" a bit more extremely when he sits with Republican appointed judges?


i would like to know to what extent have judges been involved in making political decisions in recent years? and how well equipped are they for this role?

Andrew Eppinkk

John Finley (above) is right, "Homo Sapiens and objectivity are an oxymoron". How could any honest and reasonable man or woman look at decisions such as Roe vs. Wade (and more recently the case involving homosexuality in Texas (Lawrence??)on which Anthony Kennedy pontificated so eloquently and at such length, and so many others, ad nauseam, and conclude that 'judges', esp. at the highest levels (and, monkey see, monkey do), at so many lower levels as well, are anything but overtly political, are engaged in anything but social engineering determined exclusively by their personal predelictions? All else is just bs, just footnotes (pls. pardon the language but there's just no other way to aptly describe the situation). I think some backbone and honesty is in order on the part of many lawyers/judges who should preface many (most?) of their opinions with, "The following comprises exclusively my personal opinion for the most part, and I'm directing society to behave in such and such a way", or some such, though it's true that lawyers/judges don't operate in a vacuum, keeping a watchful eye on polls, their bases of support etc. esp. where they perceive that their hold/influence in/on a given(social) situation may be tenuous.
It's amazing to me that people have been dumb enough to so sheepishly put up with such a crazy situation, and for so long, though it's unfortunately true that law enacted by politicians can be every bit as egregious as that created by lawyers/judges. Law not based ultimately in God's Morality and His Natural Law is vacuous and sooner or later finally destructive.
As a practical matter lawyers/judges at all levels s/b elected - when they get out of line get rid of them.
Really, who's bs'ing whom (again pls. pardon the language). A society directed by lawyers is really in a downward spiral. Just ask Shakespeare.

Andrew Eppink

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