Patterico's Pontifications

5/10/2010

Kagan vs Miers (vs Estrada)

Filed under: Judiciary — DRJ @ 7:06 pm



[Guest post by DRJ]

Which Supreme Court nominee has the most diverse experience?

October 2005 — Harriet Miers:

“Ms. Miers was the first woman to become a partner at a major Texas law firm and the first woman to be president of the State Bar of Texas. In 1995, Mr. Bush, then governor of Texas, named her chairwoman of the Texas Lottery Commission and gave her the task of cleaning up that scandal-plagued agency.

Ms. Miers has also served Mr. Bush in the posts of assistant to the president, staff secretary and as deputy chief of staff. Previously, she had been president of a Texas law firm, Locke, Purnell, Rain & Harrell, and when it merged with another Texas firm to become Locke Liddell & Sapp, she became its co-managing partner.

She was the first woman elected as president of the Texas bar in 1992, and the first female to be president of the Dallas Bar Association in 1985. Ms. Miers, who received her bachelor’s and law degrees from Southern Methodist University, was also an at-large member of the Dallas City Council.”

May 2010 — Elena Kagan:

“BLITZER: … at all the various judges out there, and you decided this time you didn’t want a judge?

AXELROD: Well, first of all, Wolf, that’s not the breadth of her experience. In fact, she’s probably got more diverse experience than — than most of the appointees that we’ve seen. She’s worked in all branches of government. She clerked for a very distinguished appellate court judge. She clerked for Justice Thurgood Marshall, a — a legend on the Supreme Court.

She’s represented the United States of America before the Supreme Court for the last 15 months. And, you know, she’s referred to — the solicitor general is referred to as the tenth justice, because they spend so much time working with the court. So she’s well qualified. And I think you’ll have a hard time find observers of the court and legal scholars who would argue otherwise.”

Robert Gibbs has a hard time understanding any Kagan-Miers analogy. When it comes to experience, so do I.

— DRJ

UPDATE BY PATTERICO: You know who Kagan reminds me of a little, in terms of qualifications and experience? Miguel Estrada.

Ivy League undergradate work with honors, Harvard Law school with a position on the law review, clerk at the U.S. Court of Appeals, and clerk at the Supreme Court. Big law firm experience and work at the Solicitor General’s Office.

Sure, there are differences. Kagan is the Solicitor General; Estrada was the Assistant to the Solicitor General. Kagan was a big law firm associate; Estrada was a partner. But the background is quite similar.

I think Republicans should ask Kagan the same questions — and demand from her the same sort of documents — that were asked of and demanded from Estrada. Compare her responses and answers to his — and if they are at all similar, raise holy hell on that basis.

They probably can’t defeat her, but they could have some fun in the process.

UPDATE BY DRJ: The Washington Post is collecting links to Kagan’s writings and other statements.

9/3/2007

Jan Crawford Greenburg on the Latest Urban Myth Legend in the Harriet Miers’ Nomination

Filed under: General,Judiciary — DRJ @ 1:18 pm



[Guest post by DRJ]

Jan Crawford Greenburg is the nation’s pre-eminent Supreme Court reporter. In today’s Legalities column, she categorically states that Chief Justice John G. Roberts, Jr., did not suggest Harriet Miers’ nomination to President Bush:

“Roberts, a man of caution with a tremendous sense of propriety, did not strenuously object when Miers’ name came up—but he didn’t believe it was his place to do so. He certainly never endorsed her.

But like a game of telephone, the false rumor that Roberts “signed off on her” has now morphed into Roberts “suggested” her. Heck, maybe even the President believes it by now if he’s heard it repeated back to him by his advisers. But it didn’t happen.”

Greenburg even tells us why Roberts wouldn’t do this:

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Infighting in the Bush White House: Did CJ John Roberts suggest Harriet Miers? [Updated]

Filed under: Judiciary,Politics — DRJ @ 10:35 am



[Guest post by DRJ]

The Washington Post has an online article entitled Book Tells of Inner Circle Dissent [free registration required]. The book in question is Dead Certain: The Presidency of George Bush by Robert Draper and, according to the article, it reveals interesting turmoil in the Bush White House. Among the more surprising allegations are these concerning Karl Rove:

“Karl Rove told George W. Bush before the 2000 election that it was a bad idea to name Richard B. Cheney as his running mate, and Rove later raised objections to the nomination of Harriet E. Miers to the Supreme Court, according to a new book on the Bush presidency.”

The real shocker (to me) is the claim that John Roberts suggested Bush nominate Harriet Miers to the Supreme Court:

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10/27/2005

Breaking News: Miers Withdraws

Filed under: Judiciary — Patterico @ 6:18 am



Harriet Miers has withdrawn her nomination. The 1993 speech was clearly the final straw: clear evidence of her liberalism, overlooked by a shoddy vetting process.

It’s time to look forward, not back. I sincerely hope that the President nominates a solid judicial conservative such as Michael Luttig or Michael McConnell. Such a choice will do much to heal the deep rift in the party. Conservatives can unify and rally around a nominee of true excellence.

P.S. We’d rally around Edith Jones, too. Or Janice Rogers Brown.

P.P.S. Yes, I have come in off the ledge. Thanks for your concern.

P.P.P.S. I just discovered a post from The Angry Clam that I have taken down because I didn’t think it struck the right tone.

10/26/2005

Wow: Paul Mirengoff Says Miers Should Withdraw

Filed under: Judiciary — Patterico @ 7:20 pm



Paul Mirengoff says Miers should withdraw. He says Miers’s 1993 speech is the speech of a “liberal.” He is right.

The chorus is growing among pundits: Miers should withdraw. Unfortunately, I still think it won’t make much difference.

UPDATE: Add another voice to the chorus: the speech has caused Captain Ed to officially oppose Miers as well.

Baseball Crank Propounds Questions to Hewitt re Miers

Filed under: Judiciary — Patterico @ 7:03 pm



Baseball Crank has 22 excellent questions for Hugh Hewitt, which (unlike Hugh’s questions) will, I suspect, go unanswered. (I hope I’m wrong, and hereby challenge Hugh to prove me wrong.)

Harriet Miers: Telling People Just What They Want to Hear

Filed under: Judiciary — Patterico @ 7:45 am



Harriet Miers tells a pro-life group that she is in favor of a Human Life Amendment.

She tells a women’s group that decisions about abortion should be guided by principles of “self-determination.” involve a “debate . . . surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s right to decide for herself whether she will have an abortion.”

She tells George W. Bush that he is the greatest.

Do you see the pattern?

Now she knows that her survival depends upon convincing judicial conservatives that she will hew closely to the text of the Constitution.

What do you suppose the chances are that she is going to tell us just what we want to hear?

UPDATE: See this post below. The Washington Post ran a story this morning saying that Miers gave a speech claiming that abortion issues (among others) should be guided by principles of “self-determination.” I am not sure the Post is right about this, and I have stricken language from this post that accepted that characterization. However, I am extremely concerned by the way that Miers framed the debate, and I have added other language to the post that reflects that concern.

10/25/2005

Postcards from the Ledge: Miers Speeches Indicate a View of Abortion as an Issue of “Self-Determination”

Filed under: Abortion,Judiciary — Patterico @ 10:15 pm



[“Postcards from the Ledge” is a semi-regular feature of this site, detailing revelations about Harriet Miers that have driven your gentle host out onto the window ledge.]

From the Washington Post (h/t this commenter):

Supreme Court nominee Harriet Miers said in a speech more than a decade ago that “self-determination” should guide decisions about abortion and school prayer and that in cases where scientific facts are disputed and religious beliefs vary, “government should not act.”

In a 1993 speech to a Dallas women’s group, Miers talked about abortion, the separation of church and state, and how the issues play out in the legal system. “The underlying theme in most of these cases is the insistence of more self-determination,” she said. “And the more I think about these issues, the more self-determination makes sense.”

It gets worse:

“The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s [sic] right to decide for herself whether she will have an abortion,” Miers said.

Those seeking to resolve such disputes would do well to remember that “we gave up” a long time ago on “legislating religion or morality,” she said. And “when science cannot determine the facts and decisions vary based upon religious belief, then government should not act.”

Does she still sound like a stealth anti-Roe candidate to you??

She also had an interesting view on judicial activism — i.e., sometimes we need it:

“My basic message here is that when you hear the courts blamed for activism or intrusion where they do not belong, stop and examine what the elected leadership has done to solve the problem at issue,” she said.

Read the whole thing, and weep.

A colleague at work recently analogized social and judicial conservatives to Charlie Brown, and Republican presidents to Lucy. Every time, Charlie Brown thinks Lucy is going to let him kick the football. Just like, every time, conservatives think that Republican presidents are going to allow them to make progress on issues like Roe v. Wade.

And every time, Lucy pulls the football away.

Reading this latest Washington Post article, I’d just like to say on behalf of judicial conservatives:

AAAAAAAAAAUUUUUUUUUGGGGGGGGHHHHHHH!!!

UPDATE: Here is a link to the speech itself. The link is via Orin Kerr at Volokh, who notes this revealing passage:

What else do we hear a lot today about the Courts. The law and religion. A preacher in Dallas is challenged by suits charging that he is ripping off the helpless and defrauding them with prayer cloths, etc. Abortion clinic protesters have become synonymous with terrorists and the courts have been the refuge for the besieged. The Branch Davidian compound became a sight for speculation about legal responsibilities and legal rights. The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s right to decide for herself whether she will have an abortion. Questions about what can be taught or done in public places or public schools are presented frequently to the courts.

The law and religion make for an interesting mixture but the mixture tends to evoke the strongest of emotions. The underlying theme in most of these cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes the most sense. Legislating religion or morality we gave up on a long time ago. Remembering that fact appears to offer the most effective solutions to these problems once the easier cases are disposed of.

Kerr also notes the observation of a reader at Bench Memos that the Court had recently decided Casey.

UPDATE x2: I have now had a chance to read the original speech, and it is instructive. First, I note that the thrust of what Miers was trying to say about the interplay between the courts and the legislature was that the legislature has abdicated its responsibility. (Incidentally, I think that message comes through in the quote I selected to include in the post, despite the arguments of a couple of commenters here that I somehow ripped that quote out of context — an accusation that I disagree with.) What continues to disturb me is the underlying assumption that it’s okay for the courts to step in when the legislature fails to fix an issue. However, I’m willing to remain open-minded on that concern, since court action is indeed sometimes necessitated by legislative inaction.

Second, I think it is less than crystal clear from the speech (which is badly worded and confusing) that the “self-determination” comment relates to abortion. As the quote I provide above shows, it comes in the context of discussing cases about “the law and religion” — but interestingly, the previous paragraph seems to indicate that Miers sees abortion cases as cases about law and religion. So we can’t say for sure that Miers believes that “self-determination” is the way to go on abortion cases, as the Post suggested.

Does that assuage the concerns this speech raises about Miers and abortion? No, it doesn’t. The reason is a quote I bolded above: “The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s right to decide for herself whether she will have an abortion.” That is the way an abortion-rights supporter frames the issue, folks. There it is, in context. There is no denying that this is an incredibly demoralizing revelation for anyone who believes that Roe and Casey must be overruled.

Pejman Opposes Miers Nomination

Filed under: General,Judiciary — Patterico @ 9:45 pm



Big news: Pejman Yousefzadeh has officially decided to oppose the Miers nomination.

For the first time, I actually feel some momentum behind this movement!

UPDATE: Less significant, but also encouraging: many Senators are also expressing doubts about Miers.

(Yes, I’m kidding with the “less significant” line. Sheesh. Leave me alone and let Pej have his moment.)

10/24/2005

Howard J. Bashman on the Miers Nomination

Filed under: Judiciary — Patterico @ 10:12 pm



This article by Howard Bashman on the Harriet Miers nomination is excellent. (H/t: who else? Howard himself.) It is very measured, which is consistent with Howard’s very low-key, non-polemical approach to his fine blog. In light of that, it’s a little surprising how critical he is of the nomination:

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