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October 13, 2005


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No one is denying that there are people with more judicial experience than Miers, who are better versed in constitutional law than her, more intelligent than her, posess a better record of conservativism than her, etc.

However, that there are people better qualified than Miers, on those terms and others, does not demonstrate that she is unqualified.

Prof. Stone or Judge Bork need to to say WHY she is not qualified. What is it about her deficiencies (relative to other people) that should exclude her from becoming a supreme court justice?

Why someone who has spent 40 years or so at work in the legal field is NOT qualified to serve on our high court?

If she is nominated, what should I look for in her performance that demonstrates she was never qualified in the first place? Stupid questions, cliche-filled prose, inconsistent voting pattern, what?

Some have said that she may not be capable of understanding the issues that come before the court, the history of the issues, how they fit together, the complexity of it all.

Is that true? Can a reasonably intelligent person, with work experience like Miers (by the way, Prof. Stone, contrary to what you wrote in the Tribune a week or so ago, there are not tens of thousands of attorneys with "records" that include work as White House Counsel), be incapable of grasping the issues before the court in the same way the least qualified, least intelligent, or least whatever justice currently sitting on the bench is capable of doing?

If so, what does this say about our jurisprudence?

As for voting: Will she vote incorrectly? Is such a thing possible?

If you accept that all the other justices ARE qualified, then the only time when her deficiencies will result in her voting in a way that only an unqualified person could is when she is a lone dissent (8-1,7-1, etc.).

Otherwise, a "qualified" judge will be voting the same way that an "unqualified" judge (Miers) is voting. What does THAT mean?

Nothing, probably. Perhaps she will vote inconsistently? Well, I think other judges have done that in the past. Were they unqualified?

Hell, some people think that one good quality of a judge is the "ability to change."

All of this is getting me no where.

What about the idea that she won't bring the same intellectual ideas and insights to the supreme court marketplace as another candidate would.

First, we're back to disqualifying her because there are other people more qualified.

Second, such candidates are more than likely (certainly, if such activity is a qualifying feature for them) already publishing or promoting their ideas in the legal marketplace.

Thus I doubt that Miers's appointment is an opportunity cost in the intellectual realm.

Obviously, I need Stone or Bork or someone to help me.

Let me be clear: I am not advocating her confirmation. She doesn't pass my you-can't-be-religious test. Furthermore, I understand all the arguments about her selection (as well as Roberts's) setting a bad precedent for supreme-justice wannabes. And I certainly understand why so many conservatives are upset -- another missed opportunity for the showdown with the towering intellects of Kennedy and Company.

However, as for the simple she's-not-qualified argument, I think it's weak. If you make that argument, then I think you have to provide some sort of specific set of characteristics that would qualify a person for the high court. And that task, in light of where some of our justices (distinguished and otherwise)have come from, is a project difficult to reconcile with the history of appointments and the subsequent "success" or "failure" of those appointments.

Preemptively, characteristics like "real intellectual distinction" and "open-mindedness" are not going to get the work done. (See: several current and many past justices.)

How, for instance, do we know that Roberts is open-minded? Whatever that means.


Responding to None: These are good questions. It is always hard to define precisely what one means by "qualified." Law professors wrestle with this all the time in deciding whether an appointments candidate is "qualified" to be on the Law School faculty. Lawyers in law firms deal with this in deciding whether a law student is "qualified" to work at the firm or whether an associate is "qualified" to be a partner. In all of these settings, it's impossible to be concrete or mechanical about what one means by "qualified."

In terms of appointment to the Supreme Court, I would say that to be qualified a nominee must, at a minimum, have demonstrated the ability to analyze complex constitutional and other legal issues at a very high level of sophistication. A nominee must also have demonstrated sound judgment, fair-mindedness, the capacity to reason critically, and the ability to write in a clear and effective manner. I see no evidence that Ms. Miers has demonstrated any of these qualities.

And I disagree about being White House counsel. Having a job and doing it at a very high level are two different things. The responsibilities of the White House counsel are quite variable. For some, it is a real opportunity to demonstrate precisely the abilities I mention above. For others, it is just a matter of administration. If there is real proof that Ms. Miers has done this job at the highest level in terms of both responsibilities and performance, I would very much want to know that.

I hope this is helpful.


To add on to Prof Stone's comments, a large problem with using her experience as White House counsel to justify Miers's qualification is that the public will never be able to review that record -- it is (and will be asserted as) privileged. Thus, the "real proof" of constitutional or policy analysis will be lacking and must be taken on faith.


David Tatel??? Come one, wasn't he a Clinton appointee? That's like telling a Democratic president to appoint John Roberts. But I agree with the first comment that there's no sound basis for saying Ms. Miers is not qualified. You could've said the same about Justice Rhenquist and he turned about a great Supreme Court Justice. I'll bet if confirmed she'll do a fine job. Besides, with the best law school graduates as her clerks and other support staff, who wouldn't?


Prof. Stone -

Are you favoring a new minimum standard to be applied to Miers and all future nominees, or are you trying to distil past thinking about such a standard and apply it here?

As noted, the obvious difficulty with the latter route is that the standard has been quite low -- surely low enough to permit Miers's confirmation.

The problem with the former is that it necessitates some sort of formalized list of minimum qualifications. Becuase of what is likely to be included on such a list, the effort is going to appear, oh my god, undemocratic and/or elitist.

(Let me say, that while I think much of the objection to Miers is subconsciously driven by something like elitism, I am a proponent of elitism -- the person that pays $30 K a year in tuition is either elitist or hypocritical or delusional or lost or . . . has really wealthy parents. I prefer elitist. Let me also say that the argument that I often hear from both the left and the right about the supreme court reflecting the diversity of our population is incredily ignorant or really lazy. Think, for a moment, about what a court would look like that truly reflected our nation's "diversity," and remember that "diversity" doesn't stop with sex organs, skin color, mysticism, etc. -- That was just a tangent. I don't think Prof. Stone has advocated any such postition.)

Also, Prof. Stone, you didn't answer any of my questions regarding what I should look for if an unqualified candidate is confirmed.

Due to the nature of the supreme court, it may be entirely impossible to witness evidence of deficiency.

In baseball, for instance, if you put an unqualified pitcher on the mound once a week for an entire season, his lack of qualification will be quite obvious.

The supreme court does not provide the same kind of "proving ground." What does that mean? That it's entirely possible that we've had many incompetent (or at least unqualified) justices in the past? that we still do?

Lastly, that we have allowed unqualified (whatever that means) people on the court in the past certainly would not justify doing so today. The point, as has been raised elsewhere, is that I don't really know what inputs go into making a good supreme court justice. I don't even know what a good supreme court justice is. Certainly, all sorts of people could tell me who they think has been a good justice, but can they do so, first, in a way that sets ideology aside, second, that includes, say, half of the justices who have sat on the high bench, and, third, in a way that would show that Miers is not qualified?



the justices' duties include not just voting but writing opinions. those opinions will shape the path of the law for years to come. the slightest nuance, the subtlest word change can have profound effects. there's not much of a written record to examine either her analytical or her writing abilities. but read david brooks' recent column. if she's not up to the task, the place you'll notice is her written work.


I did read Brooks's column. He analyzed some "Note From the President" column Miers wrote heading the Texas Bar Association. It did appear that her writing was filled with cliches and vacuous abstractions. Reminds me of . . . a lot of legal decisions I read in law school.

I think this gets back to my central point: Most any standard that disqualifies Miers also disqualifies, ex post facto, many former supreme court justices. I don't think there is anything necessarily wrong with that. However, I don't think the Miers-is-not-qualified pundits are being completely honest about the corollaries of their arguments.

That Miers is a poor writer is definitely no good. Brooks thinks that the ability to write clearly and argue incisively is a minimum threshold. I agree, but I doubt that has ever been a qualification in the past.

Furthermore, maybe I give success too much credit, but I think that Miers must be a decent writer to have had the success she's had in a field that requires a lot of writing.

Lastly, I doubt that any lack of writing skills will reveal itself in decisions she might write. Her clerks are not going to let the justice they worked for have a reputation for terrible, cliche-filled, vacuous opinions. And other justices are not going to sign onto opinions that possess obvious defects. If such defects (the slightest nuance, the subtlest word change) have profound effects on the law, then any justice that signs onto the opinion is just as culpable as Miers.

Well, I'm tiring of this discussion. Defending Miers results in a lot of arguments that leave me cynnical about the supreme court as an institution.

(Although it did occur to me that by the standards most of us would use to assess a job or a task, the job of being a supreme court justice might not be that difficult at all. Let's see: A justice cannot be removed for poor performance; indeed no one really knows what seperates good performance from bad. A justice has a highly trained support staff. Most all of a justice's "work" is done in private. Most of the difficult legal thinking has already been done by the time a case reaches the supreme court, and most of the time, justices are left to make a decision that "has really good arguments on both sides." And the list goes on.

I certainly think that most of our justices take their job very seriously and work very hard and put a lot of pressure on themselves. Moreover, I understand that every decision will be thoroughly analyzed by lawyers and scholars who will judge the justices in many different ways. However, when I think of a tough job, Supreme Court Justice does not come to mind.

E S Cioe

"When I think of a tough job, Supreme Court Justice does not come to mind."

I agree not at all. Dealing with death penalty and abortion matters alone put more responisibility on these judges than on most anyone in the country. Add to that all of the other legal matters that affect a large portion of the population, and your "thought" fails further.

And I dare you to write a letter to Justice Souter saying exactly the above quote. The man has been attacked and has been threatened to have his house seized in the past two years alone.


none, i don't understand the logic of your argument. you seem to be saying that since we've had crappy justices in the past, we therefore have no right to demand better ones in the future. when you read a flawed judicial opinion, you don't ask how best to emulate it; you ask how best to improve it. doesn't it make more sense to learn from our mistakes and try to improve?

i agree that the life tenure system can lead to serious problems; but to think a few clerks can solve the problem of a weak justice is, i think, a stretch.


From my second comment in this thread: "that we have allowed unqualified (whatever that means) people on the court in the past certainly would not justify doing so today."

So I am obviously NOT advocating that the existence of poor justices in the past justifies picking more bad justices for the future.

My whole argument is about the difficulty in determining that a justice is "unqualified" ex ante, in light of past justices. And the problem that so many people have pointed out is that disqualifying, say, Miers, because of this or that reason would have also disqualified justices, like, to use recent examples, Rehnquist or O'Connor or Roberts.

Perhaps I misphrased my argument about the difficulty of being a supreme court justice. My point was that many of the factors that I associate with a difficult or stressful job are not present at the high court: things like, job insecurity, bosses, constant supervision, pressure to perform.

Mr. Cioe points out some obvious pressures that come with the job that might not be apparent elsewhere. However, I disagree with the following statement: "Dealing with death penalty and abortion matters alone put more responisibility on these judges than on most anyone in the country."

If you are a justice morally opposed to both (which, oddly, is not a popular position in America today), you simply vote against both whenever such issues arise (and of course you do the requisite legal rationalizations, etc.).

Each justice is free to choose to vote in whatever way he or she feels sees fit. And if they don't agree with any of the opinions, they can write their own. And if they vote against their conscience, they have that great explanation: my commitment to the rule of law forced my vote.

I agree that the job entails a great responsibility, but more than most people deal with on a day-to-day basis? No way.

What if they fail to meet their "responsibility"? Every time they render a controversial decision one half of the pundits are saying something to the effect that the justices "failed in their responsibility."

But their responsibility isn't like the responsibility of most people. If most people fail to meet their responsibilities, they suffer consequences like demotion or removal.

(I guess I better restate my initial point: I'm sick of hearing how touch the job of a justice is.)

As for Justice Souter . . . I doubt he lost a lot of sleep over the silly campaign to seize his house after the New London decision.

Lastly, as for the following: "doesn't it make more sense to learn from our mistakes and try to improve?"

Yes, but regarding the supreme court, what are our "mistakes"? I understand that there have been a fair number of justices that almost all commentators and historians regard as failures. But at a certain point, the question of whether a justice was good or bad (assessed in those necessarily very broad terms), breaks down into disputes about politics or jurisprudential philosophy or even ethics.

As you can tell, I really don't know much about this stuff (I have almost no examples), but I can also tell from reading the newspapers and the internet, that there is very little agreement about what makes a candidate qualified, beyond vagueries, like an ability to analyze difficult constitutional problems.

And often times it appears, on closer look, that Miers probably meets the vague requirements.

And whenever more detailed requirements are provided, we're back to the problem of disqualifying past justices or setting a standard that is against our sensibilities.

Again, I don't want Miers to be confirmed. But my objections are purely political. Which I think is a perfectly good reason to oppose her nomination.


I agree with Professor Stone's arguments about what amount to qualifications for being a Supreme Court justice.

But what puzzles me a bit about this discussion--and most of the discussions surrounding the Miers nomination--is that so many are willing to make conclusions about Miers' qualifications in advance of the Senate committee hearings.

All of the sources to which Professor Stone and others point (e.g., law review articles, judicial opinions) would be important indicia of Miers' thinking on constitutional and other legal issues. But I think people read too much into the fact that these sources don't exist in Miers' case. Absence of evidence is not necessarily evidence of absence.

It seems to me that it might be a better move to hold off rendering opinions until Miers has had a chance to be asked the kind of questions that will expose her thinking on these issues--that is, to hold off until the nomination process can show whether she is (as a colleague indelicately put it) "someone without a brain" or whether she's been roundly underestimated.

There are, I know, concerns with this approach. Miers' ability to block inquiry by referring to executive privilege limits the scope of what she can be asked in committee. But it seems to me that it would be better to wait until something emerges from the hearings to dismiss her rather than assuming that her failure to fit the typical mold of a nominee is alone enough reason to reject her at this early stage.

And for what it's worth, I'd echo the suggestion that Judge Tatel of the DC Circuit would make a good nominee. But I used to work for him, so I might be a little biased.


You do seem to be coming off as an elitist both here and in your Tribune piece. The stuff about second or third tier law schools is inappropriate. The lady did make the law review there as I recall (although I think relying on that is elitist in and of itself since it typically reflects grades for the first semester, first year). I don't think John Marshall went to law school at all and Earl Warren was simply a political hack. I have no idea where he went to law school. Justice Black was a segregationist southerner and one could go on.

Doesn't it really seem that the issue is whether or not one is acceptably intelligent and accomplished in the law in general as openers. This lady has been a successful civil litigator for quite a few years. After that, the pertinent question is whether or not she has an agenda. One can no longer pretend that the court is a neutral non-political institution (see Bush v. Gore which is only the most recent example) and meaningful assessments from an "advise and consent" perspective will pay particular attention to that.

It didn't start with Bork. Politics has always played a role in Supreme Court confirmations. Before Bork, in relatively modern times, there was Abe Fortas who was targeted laergely on the LBJ crony issue.

I don't advocate for Ms. Miers' confirmation. I simply think your objections are misplaced. I'd like to hear what she has to say during the hearings and believe that she has an obligation to speak to her attitudes towards current issues, without commiting to vote any particular way, just as Roberts should have been required to do and I'm sorry he was allowed to skate. Basically his record was one of an effective appellate advocate (although as many pointed out, arguing for the solicitor general's office gives one a substantial advantage) and a political appartchik in the Reagan administration. That, together with an excellent academic record, really shouldn't impress anyone other than an academic.

The point is that this is a political position and it ought to be treated that way. I think you know that.



Perhaps people who have trouble with the notion of Ms. Miers being "unqualified" would be helped by an analogy. Say, for example, that NASA is looking for a new designer for an engine to be used in the next generation of space flight. The NASA manager could take her pick of aerospace engineers from MIT and other top schools, or she could take an automotive engineer from, well, SMU (my alma mater as well, so my ribbing is good-natured). It's true that this automotive engineer, having attained a reputation as one of the most powerful automotive engineers in the country, could possibly master the challenges of the forefront of aerospace engineering (a motor's a motor after all, right?), it stands to reason that the aerospace engineering community would be baffled to the point of anger at having been passed over for any automotive engineer, no matter how great.

Harriet Miers may be a great corporate and personal lawyer, and maybe her fine mind and hard work can put her in the position of being a solid Constitutional jurist. Why, though, should the American people be presented with someone who necessarily will have to retrain her focus when so many others could have a much more seamless adjustment?

I haven't read all of the op-ed pieces criticizing her nomination, so someone else may have pointed this out, but the nomination of Miers seems especially problematic given the nature of this Supreme Court term. It is one thing for Miers to be appointed over the summer, where she could "cram" for the position before any cases would be heard. However, if her nomination is approved, she will step into O'Connor's position mid-session and have to catch up not only on complex constitutional issues generally but also on the specific case load in front of her. In this light her lack of applicable experience risks weakening the Supreme Court as an insitution for the entire term, essentially leaving it without a justice.


ekf -

I like your analogy because I think it does a good job of explaining the frustration (and even anger) that the Constitutional Law community has expressed with regards to the nomination of Miers. But I don't like your analogy because it suggests that we might be able to evaluate a supreme court justice in the same way that we can evaluate an aerospace engineer. We can't.

The analogy suggests that, intellectually, commercial litigation is to constitutional law what automobile engineering is to aerospace engineering. (Maybe you are not making that point, but that would beg the question: Why didn't you reverse your example, and have an aerospace engineer moving to, say, Ford's engineering division?)

Is a top commercial litigator to a top constitutional scholar what an automobile engineer is to an aerospace engineer, intellectually speaking?

All of this ignores the democratic theory aspects of the problem. For instance, should the qualification for the supreme court become, in effect, a degree from a top 25 law school, law review, clerkship, appellate work, and bench experience? Maybe so.

Such requirements would certainly rid us of all that stupid talk about the court reflecting the composition of the American people.

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