Patterico's Pontifications


More on Miers’s Op-Eds

Filed under: Judiciary — Patterico @ 8:31 pm

Miers supporters, have you actually read her writings?

I asked this question the other day about her thank-you notes, because seeing one “You guys are great!” quote in a newspaper story had a different effect on me than actually starting here and clicking through one example of obsequiousness after the other.

But some criticized me for mentioning birthday cards and thank-you notes at all. We all write silly things in thank-you notes, goes the argument. Some of us even suck up to the boss in these cards and notes, friends tell me. Well, I tend to be a smart-aleck in cards and notes, personally — but never mind that. We don’t all get nominated to the Supreme Court by a boss we’ve sucked up to — but never mind that. Forget I ever said anything about the thank-you notes, if it really bothers you.

Let’s look at the only other writing samples we have from Harriet Miers: her pieces in the Texas Bar Journal. These are pieces she affirmatively held out to the world as examples of her writing.

I’ve brought these up on the blog previously, but primarily to note specific issues, such as the similarity of her opinions about diversity to those of Justice O’Connor, or her criticism of Republicans for “lawyer-bashing.” I haven’t commented on the quality of the writing generally — but it is poor, and that has had an influence on my thinking.

Here’s the thing: I’ve read them.

Have you?

David Brooks has read them so you don’t have to, and discussed them in an op-ed this past Saturday:

Of all the words written about Harriet Miers, none are more disturbing than the ones she wrote herself. In the early ’90s, while she was president of the Texas bar association, Miers wrote a column called “President’s Opinion” for The Texas Bar Journal. It is the largest body of public writing we have from her, and sad to say, the quality of thought and writing doesn’t even rise to the level of pedestrian.

Nothing excuses sentences like this: “More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.”

Or this: “We must end collective acceptance of inappropriate conduct and increase education in professionalism.”

Or this: “When consensus of diverse leadership can be achieved on issues of importance, the greatest impact can be achieved.”

Or passages like this: “An organization must also implement programs to fulfill strategies established through its goals and mission. Methods for evaluation of these strategies are a necessity. With the framework of mission, goals, strategies, programs, and methods for evaluation in place, a meaningful budgeting process can begin.”

I don’t know if by mere quotation I can fully convey the relentless march of vapid abstractions that mark Miers’ prose. Nearly every idea is vague and depersonalized. Nearly every debatable point is elided. It’s not that Miers didn’t attempt to tackle interesting subjects. She wrote about unequal access to the justice system, about the underrepresentation of minorities in the law and about whether pro bono work should be mandatory. But she presents no arguments or ideas, except the repetition of the bromide that bad things can be eliminated if people of good will come together to eliminate bad things.

Throw aside ideology. Surely the threshold skill required of a Supreme Court justice is the ability to write clearly and argue incisively.

Since most people reading this blog aren’t going to go to the source materials, no matter how much I encourage them to, I figure it’s worth giving you a few quotes here, to illustrate what I’m talking about. But if you really want to get the full flavor of what Brooks is talking about, go here. Read.

As I said when I first gave you the link to these pieces:

I have little doubt that the Miers defenders will soon tell us that it’s not important for a Supreme Court Justice to be a good writer. They have law clerks to draft their opinions, after all; the important thing is the vote, not the writing; do you want someone who’s good at grammar or someone who’s good for the country; stop being an elitist. Etc.

All I’d ask is this: before you offer these knee-jerk defenses, go and read. Then read another piece of writing I’ve recommended recently: Justice Scalia’s dissent in Stenberg.

If you’re pressed for time, just read the first paragraph of Scalia’s dissent — just the first paragraph! — and compare it to any single paragraph of Miers’s writing, whether quoted by Brooks above, or selected by you at random.

If you actually go and do this comparison, you won’t wonder why I keep saying that Miers is no Scalia. And maybe you’ll start to understand why I am so distressed.

P.S. If you’re too lazy to click over to Scalia’s dissent, here is that first paragraph:

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child — one cannot even accurately say an entirely unborn human child — proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.

Two sentences. Sixty-six words. Does he have your attention?

Nobody will ever say of Scalia’s writing: “Nearly every idea is vague and depersonalized. Nearly every debatable point is elided.”

The power of his arguments, like those of the great dissents of Oliver Wendell Holmes, cannot be ignored. So far, he hasn’t had the votes. But when he gets them — if he ever does with weak-kneed Presidents like Bush, and vainglorious Senators like John McCain standing in the way — the sheer persuasive force of his arguments will win the day.

You just can’t say this about Harriet Miers.

Now do you see why I’m distressed?

11 Responses to “More on Miers’s Op-Eds”

  1. Hmmm, well sir Patterico your reservations about Miers are understandable…

    Let’s face one fact though, didn’t we on the right, the real conservative right want a fight on this pick for a replacement for O’Connor?

    Here was Bush’s golden chance to drive one more nail into the coffin of the dim-witted Dems by publically disecting their less than tenuous grip on reality and Bush to say the least disappointed…

    Seeing as how the dim-witted Dems were losing their agenda via the polling booth, their collective dependence on liberals sitting on the bench masquerading as judges, this too could have been stopped…

    russ (8b209b)

  2. Scalia dissents . . . . gems. The demonization of Scalia by NARAL and PFTAW has done the country a great disservice. Thanks to them and the know-nothing MSM, the average American thinks of Scalia as a reactionary who would bring back the days of back alley abortions and, of course, deny Americans all of their civil rights. All this because of his candid disagreement with the Court’s abortion-rights rulings. But Scalia is the Court’s greatest champion for civil rights — at least the ones that are actually in the Constitution. I can imagine that his dissent in the Hamdi case this year was part of W’s inspiration for the Miers pick — someone who will reliably support the administration seems to be preferred over someone who will faithfully uphold the Constitution. Putting this argument front and center amounts to a direct attack on the President, but it might just come to that — his Supreme Court appointments will have an impact that will outlive his administration by decades. If Miers is to be a rubber stamp, then it’s the Senate’s duty to stick up for our constitutional separation of powers and send her back unconfirmed.

    TNugent (6128b4)

  3. One factor is being ignored about Bush, his different approach to problems. Israel/Palestine– he refused to meet with Arafat and for better or worse, he has changed that landscape. Iraq was a problem he refused to leave, and for better or worse, he has changed the landscape. UN–he did NOT send the required diplomat and intends to change the business as usual. EU–I think he shocked them with Rummy’s opinion. Treaties–He does not seem to take the popular route. MSM–His approach shocked these people.

    My point is that Bush is willing to try a different approach to a problem. He considers the court’s landscape needs changing. Is his approach with Miers a good gamble? I don’t know but several managed to get there with the “right credentials” and that certainly didn’t work out.

    Instead of being a mindless Bush supporter, I think I have seen progress on several items on my agenda. This is important to him. So why Miers? Possibly the same reason he didn’t send a diplomat to the UN. Fresh blood is needed to shake some of these people out of their comfortable boxes.

    owl (c6a3ab)

  4. To be entirely fair, a comparison to Scalia is like saying you shouldn’t hire an outfielder who can’t hit like Barry Bonds. Justice Thomas is a deep and incisive thinker and a lively writer, and Thomas is no Scalia. Neither was Rehnquist. Scalia is the best writer the Court has seen.

    But if the Miers defenders can’t come up with a sample of her writing that dispels the impression that those awful State Bar letters are a valid sample of her writing, we practicing lawyers are in for dreary decades of reading some awfully muddle-headed stuff.

    Crank (3fed2a)

  5. Xrlq is having trouble commenting, but wishes to pass this along (not verbatim, but this is the essence of it):

    It sounds like you want a Court with nine Scalias. I’d be happy with a Court with one Scalia, but eight other Justices that voted the same as Scalia.

    Patterico (48067d)

  6. I’d rather have Krugman then Meiers. He’s tendentious and dishonest and probably not all right in the head. But at least he doesn’t torture the language. Can make an argument. Can dissagregate issues and label them.

    Sheesh, Meiers is just one nominalazation after another. You could easily write a text on verbosity and use Harriet for all your examples. I leave it as an exercise to your readers to translate her quotes into direct non-wordy statements.

    TCO (d7c35a)

  7. If “writes as powerfully as Scalia” is your standard, then certainly neither John Roberts nor any of the other potential nominees I’ve seen you argue for is qualified.

    Assuming that one’s opinions for the court would be as polished or careful — or that they’d remotely resemble — what one writes on a deadline for a bar journal “message from the president” column is not logically sound. I respectfully submit that it’s almost impossible to turn out 12 such “messages” without lapsing into vapidity. Scalia couldn’t do it.

    Did you read her letter to then-Gov. Bush from 1995 urging him to veto a bill that would have changed the balance of power within the state back to favor the plaintiffs’ PI bar?

    This line of argument strikes me as almost as unpersuasive as intuiting what kind of SCOTUS opinions she’d write based on what she’s scribbed on a Hallmark card to Dubya.

    Beldar (f0e75d)

  8. I’m curious: if Harriet Miers is confirmed and votes the way we would expect a proper judge would, doesn’t she have a profound impact on opinions like Scalia’s? That is, doesn’t she change those brilliant dissents into majority opinions?

    For all the thud and blunder about intellectualism and writing ability, our problem hasn’t been that we’ve got too many dim bulbs who can’t write on the Supreme Court. Our problem is that we’ve got too many justices who act beyond their legitimate power. From what I’ve seen thus far, it appears some conservatives want justices they can admire. The President wants justices who’ll fix the problem.

    We can argue on whether this particular pick is liable to solve the problem. But I’m getting sick and tired of seeing people digging their heels in because this president’s pick didn’t solve their problem their way.

    slarrow (3ae04a)

  9. Justices don’t just vote, they write opinions. My concern on Miers is fourfold:

    1. Does her lack of grounding in constitutional law and theory, taken together with what we know of her temperment, indicate that she will drift from her moorings once on the Court? I’m inclined to give Bush some benefit of the doubt on the temperment issue, as he knows her well, but the lack of grounding worries me.

    2. Does she have the intellect and writing chops to understand the torrent of complex issues the Court needs to resolve and produce clear opinions that lay down workable rules of law? Beldar and other defenders just assume that she will be an improvement over dunderheads like Blackmun and split-the-baby multi-factor-test pushers like O’Connor and Powell, but the evidence so far on both points is unencouraging. (That letter on the attorney fee bill isn’t exactly the clearest and most persuasive argument I’ve read lately – the last two paragraphs on Page Two get a general meaning across, but they’re a train wreck of euphemisms and tortured grammar).

    3. Does she understand the body of constitutional law well enough to anticipate how the drafting of her opinions will affect cases not before the Court? On this, I’m deeply skeptical.

    4. Is she too close to Bush to rule against his Administration when – as all governments are wont to do, even good ones – it exceeds its legitimate authority under the Constitution?

    Crank (3fed2a)

  10. […] We were going to post some thoughts about how the Miers nomination is so upsetting to conservatives because they see it as a betrayal of their long-fought battle of ideas … but Patterico pointed us to a column by the NYT’s David Brooks last Sunday (copy here) that laid this out better than we can: The conservative movement was founded upon the supposition that ideas have consequences. Conservatives have founded so many think tanks, magazines and organizations, like the Federalist Society, because they believe that you have to win arguments to win political power. They dream of Supreme Court justices capable of writing brilliant opinions that will reshape the battle of ideas. Conservatives have spent two generations developing an internally consistent intellectual framework. They believe that has helped them prevail in five (yes, counting Bush 1) of the last seven presidential elections. What they want is another warrior — a Scalia. […]

    Independent Sources » Blog Archive » Don’t Get Wobbly On Miers (4f7430)

  11. Dont you get it? Republicans are not going to overturn Roe Wade.. its too much of a good issue for them to continue getting the “values voters’ to vote for them and their tax cuts for the top .1%… with a few pennies thrown at the rest of us for sweeteners… Its a great issue which they can use to ride to power and they are not going to allow it to go away.

    charlie (8ea405)

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