Patterico's Pontifications

10/20/2005

My Criteria

Filed under: Judiciary — Angry Clam @ 6:40 am



[Posted by The Angry Clam]

This started as a comment to my prior post Speculation, but I thought that it became interesting enough to merit its own post.

For a while now, some people have been demanding that we Miers opponents define what it is that we want from a nominee. I think that’s fair, and so I’ve endeavored to answer it in a response to a comment by Flap from FullosseousFlap’s Dental Blog, who’s a member of the Bear Flag League.

Here’s his comment, and my response follows.

So, Patrick et. al. tell me what are the qualifications then for a supreme court justice?

I know the qualifications of a good dentist and writing is not one of them.

And you say her writing sucks. Is that a primary qualification or an nomination spoiler? Flap doesn’t read this in the Constitution anywhere.

How about character, integrity, veracity, life experience, business experience, drive etc.. Are these desirable qualifications?

Do you feel that graduating from a tier 2 or tier 3 law school like ALL of you commenting did is an automatic disqualifier? BTW Flap graduated from a premiere tier 1 dental school (USC)and have taught there and does that buy me anymore qualification for appointment to legislative or executive office?

Just some thoughts……

And here’s my response:

Flap-

I’m actually fairly familiar with the dental world due to my father, who’s been a dentist for twenty-five years now. He attended Illinois, which, according to the last dental school rankings (from 1994… since then it seems the schools have refused to cooperate) was #11, a couple slots higher than USC. But, let’s say that he attended Fly-By-Night School of Dentistry and Carpentry. Since that time, however, he’s published several peer-reviewed articles on TMD and Eagle’s Syndrome, picked up things like a Mastership in the Academy of General Dentistry (there’s no real analogue in the law to these kind of things), and teaches course from time to time, mostly at the Las Vegas Institute.

All of these things reflect a certain level of skill in actual dentistry, regardless of where the initial dental education was obtained. But, that’s the point- they serve as markers of education and/or experience (particularly things like the mastership, which requires some obscene number of clinical CE hours) that is independent of the initial educational institution. Incidentally, your post-doctoral teaching activities would, in my view, reflect favorably upon your appointment to some governmental office where dental skill is part of the job- I wonder if there’s an Assistant Surgeon General for Dentistry or some such, for example.

Now, though, tell me, how do you feel about the president of the county chapter of the American Dental Association. How about the state boardmembers? Have you even heard of Sam Aanestad (he’s a Republican state senator and oral surgeon from Northern California)? What about the guy who writes a banal column in some of the local dentistry newsletters?

My guess is that you wouldn’t consider any of those latter things to be very indicative, if at all, of a person’s skill as a dentist. Rightly so, in my view- they’re mostly reflections of people who spend time playing profession politics rather than actually practicing the profession.

And, you see, you have to understand that those latter things are the dental equivalent of the legal activities the administration says makes Miers qualified. The big problem is that she hasn’t done anything to indicate skill and experience similar to the dental activities that I noted my father engages in.

That’s a very serious problem.

The writing, too, is a very serious problem, because writing is one of the most fundamental skills an attorney, in any practice, can have. Everything we do is based on reading cases, statutes, contracts, depositions, motions, documents, etc. or in writing those same things.

These skills are particularly necessary on the Supreme Court, where the highest-end attorneys practice, since even minor misunderstandings of their positions by a lone Justice can screw up the law, for all 300 million Americans, for a long, long time.

So, if I had to lay out criteria for what I would consider a qualified Supreme Court Justice, it would include the following:

1) Some indication of academic excellence- this can be fulfilled by (a) attending a very good school and being on Law Review or Order of the Coif (a top 10% society), (b) holding an appellate clerkship, (c) publishing a number of pieces of quality legal scholarship, or (d) having a successful appellate practice (appellate law is much more academic than the practical and tactical trial practices).

2) Demonstrated and extensive ability with a range of litigation on federal issues, preferably including constitutional law, and preferably at the appellate or Supreme Court level. This can be done through private appellate practice or several years’ of service on the federal bench.

3) Some indication of a consistent philosophy of judging. Note that this need not be as technical or developed as Scalia’s originalism or Breyer’s representation-reinforcement- it may be as basic as Roberts’ Bickelian judicial modesty. I just want something that demonstrates that the nominee has considered how he understands his role as a judge in our system, as well as his method of approaching cases before him.

Notice how there’s no “we need an evangelical” or any other religion, no “we need a woman,” no “she should be from outside the same three schools that most judges come from,” “she needs a good heart,” or any other of the “representational” issues that the White House seems to think are important in an Associate Justice of the Supreme Court of the United States.

Miers, incidentally, fails all three of these categories.

1) She didn’t attend a distinguished law school (although, yes, Beldar, she was on Law Review there. Have we sorted out if she was Coif, yet?), and hasn’t done anything since then to indicate that she is conversant in the arcane world of Supreme Court law, let alone capable of the heavy intellectual lifting needed to judge on that level.

2) Nearly all of Miers’ practice was state court litigation. Even the bulk of her litigation in federal court involved only state, and not federal, issues. She has served as counsel in less than ten federal appeals in her entire career, and has never been a judge, trial or appellate.

3) There’s no indication that Miers has given any consideration whatever to this point. Sure, we have the empty platitudes from the Bush Administration about how she won’t “legislate from the bench” and how she “won’t change her mind in 20 years.” Keep in mind that, as another blogger observed (I forget where it was, so I can’t give a link), “twenty years ago, Miers was a Democrat and a Catholic.” (UPDATE: Jay Leno, thanks to Ernest Brown)

— The Angry Clam

UPDATE FROM PATTERICO: My response to Flap is simple: the ability to write well is easily among the top three requirements of a Supreme Court justice, if not the top requirement. Two other qualifications are related and important: analytical ability, and the ability to read and process information.

My suggestion to Flap: list, in order of importance, the top three requirements for a dentist. Now imagine someone who is just terrible at #1. Do you want that person anywhere near your teeth?

Harriet Miers would never get a job as a Supreme Court clerk. It has nothing to do with her school. You need a good writing sample to get that job — and she doesn’t have one.

10 Responses to “My Criteria”

  1. Angry Clam,

    That’s Jay Leno’s too true to be funny joke, which cuts to the heart of the non-justification for Miers’s appointment.

    Ernest Brown (645009)

  2. So that’s where it came from. Thanks for telling me the origin.

    Also, Patterico- I ask for more of my Justices than writing ability, but I think my three categories implicitly require excellent writing ability. I think that Flap wanted to know about criteria going forward as well, so I tried to answer that, rather than explain why Miers is such an embarassment.

    Angry Clam (fa7fff)

  3. As a non-lawyer, it’s clear even to me that one has to possess excellent communications skills to operate at any top level of government, not least of which is the Supreme Court. What is true in any successful business should be no less true in judging the law and succinctly explaining your judgement in unambiguous terms that even folks like me can understand.

    I would also suggest that a successful jurist must be a voracious reader and thinker. Certainly if one is to form judgements based on the intent of the authors and “amenders” of the constitution, an extensive knowledge of history and of the though processes of the founders is equally important. Otherwise, you are making it up as you go and we’ve clearly had enough of that.

    I see no evidence to date that Ms Miers is described by any of the above. On the contrary, the more we hear, the less we want to hear. Unfortunately, the response from the WH to date has been along the lines of: “This is going to happen, so you might as well ‘just lay back and enjoy it’.”

    Harry Arthur (40c0a6)

  4. Hopefully Meirs can talk Luttig or McConnell into clerking for her … looks like she’ll need it.

    clark smith (865aa4)

  5. Well said!

    I skimmed most of the first 53 pages of Miers’s response to the Judiciary Committee’s questionnaire, and I read pages 54-7 carefully, since that’s the part that contains her largest, most open-ended piece of expository writing. It’s OK writing…for a PoliSci undergrad. It would not pass muster for any of the law school or Gov’t Dept. grad students I knew at Harvard. As you say, she has not shown that she can write clearly or think creatively on philosophical issues.

    REJECT!

    Just Some Guy (d940fc)

  6. I think you should’ve used a combo Dentistry & Barber School in your hypothetical, Patterico. Or would that have been too medieval?

    TNugent (58efde)

  7. AC and Patrick thanks for answering.

    Flap is practicing today but appreciate the time and thoughtfulness of your posts.

    With regards to your dentist father I am happy he has a great son who is as literate and conversive as you. I think the same of my two daughters who are both law students at first/second tier schools – but there is hope one has the grades to transfer to a pure tier one and may qualify for further consideration of greatness in the not too distant future.

    More later on your qualifications for the Supreme Court…… gotta drill and make some NTI’s.

    Flap (675322)

  8. I don’t know, carpentry could be useful for some orthodontics.

    Or, as was said on The Simpsons, “these [braces] were made before stainless steal so you can’t get them wet.”

    Angry Clam (fa7fff)

  9. Harriet Miers Watch: Criteria to Be Nominated to the United States Supreme Court

    Supreme court nominee Harriet Miers meets Senator Herbert Kohl (D-WI) in his office in Washington, DC, October 20, 2005. The U.S. Senate Judiciary Committee’s top Republican and Democrat told U.S. Supreme nominee Miers on Wednesday to elaborate …

    FullosseousFlap's Dental Blog (baa0b4)

  10. Flap posted a Trackback asking for criteria:

    http://flapsblog.com/?p=1166

    Hope it shows up…..but who knows?

    Flap (675322)


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