Patterico's Pontifications


George W. Bush: Blog Commenter

Filed under: Humor,Judiciary — Patterico @ 11:46 pm

George W. Bush has weighed in on the Harriet Miers nomination, in a blog comment at Confirm Them.

Proofreading Miers’s Questionnaire Answers: Questions 15 and 16 (Or: A Clear Case of Misprepresentation)

Filed under: Grammar,Humor,Judiciary — Patterico @ 11:19 pm

I am finally getting a chance to browse through Harriet Miers’s questionnaire answers. Here’s what jumped out at me from her answers to Questions 15 (“Legal Career”) and 16 (“Litigation”). You may have seen these in other places; then again, you may not have. In any event, these are all things I noticed on my own.

Page 31:

He contended that, although the two forged the checks in question were separately cashed at different banks in San Antonio, the interstate transportation of the checks did not occur until the San Antonio Branch of the Federal Reserve Bank forwarded them in the same envelope across state lines to the Detroit Branch of the Federal Reserve Bank.

. . . .

The United States acknowledged the circuit split (and, in fact, noting that the Seventh Circuit had joined the Fifth and Eighth Circuits, see United States v. Dilts, 501 F.2d 531 (7th Cir. 1974)), but argued, among other things, that “[i]t is not certain that, in view of the decisions in three other circuits to the contrary, the Ninth Circuit now would adhere to its ruling in Gilinsky.” Id. at 3 n.2.

Page 39:

Among other issues that were raised in the course of discovery were activities and conduct that allegedly constituted Pioneer Nuclear’s involvement in the purported unlawful antitrust conspiracy; activities and conduct of domestic codefendants and trade organizations; activities and conduct of foreign defendants in alleged international cartel; as well as an analysis of free market factors explaining an increase in the price of uranium and the definition of the relevant market.

. . . .

I engaged in settlement negotiations on behalf of Pioneer and settled on the basis that all claims against Pioneer Nuclear were dismissed without it paying any money or providing any other consideration to Westinghouse.

Page 41:

The trial court awarded SunGard $46,247 in damages and interest on its breach of contact counter-claim, and awarded it $1,550,000 in attorney’s fees.

Page 42:

The Fifth Circuit affirmed the district court’s decision on most claims, except that the district court reversed the directed verdict on the plaintiffs’ claims for violations of the TDCA.


Page 44:

Separately, private plaintiffs sought to bring a class action against Lomas and recover punitive damages, alleging a myriad of claims, involving RICO, fraud, misprepresentation, negligence, intentional wrongdoing, breach of fiduciary duty, and breach of an implied covenant of good faith and fair dealing. Lomas

There are plenty more errors, but I’m trying not to get too picky. For example, she needs to decide whether it’s “attorneys’ fees” or “attorney’s fees” — but I didn’t mention that, did I?

Maybe I should apply to be Harriet Miers’s clerk! Ya think she’ll have me?

P.S. I gotta say, though — my main impression after reading about all the cases she has litigated is: thank God I’m not a civil lawyer any more! The issues in these cases are bo-ring!

P.P.S. The rule is: in any post about proofreading or grammar, there must be at least one typo. Your job is to be the first to find it!

But always remember and never forget my certain reply: this blog post is not my application to be an Associate Justice of the U.S. Supreme Court.

P.P.P.S. The President has breached his contact with the American people.

P.P.P.P.S. I am filing this post under “Humor” in response to See Dubya’s comment below, since he apparently doesn’t get jokes or lighthearted posts unless you tell him they’re jokes or lighthearted posts. (And he’s the same guy who once criticized me for giving a joke away by filing it under “Humor”! Jeez, sometimes you just can’t please these people . . .)

P.P.P.P.P.S. Don’t make me do another P.S.!

P.P.P.P.P.P.S. The “breach of contact” comment was a reference to one of Miers’s mistakes above. Maybe I should have put quotation marks around the word “contact” for the humor-impaired . . .

P.P.P.P.P.P.P.S. Ms. Miers: a spellchecker can be your best friend. My browser and blog software lack one; what’s your excuse?

P.P.P.P.P.P.P.P.S. Remember: we have all heard about Harriet Miers’s legendary attention to detail, and devotion to perfection in matters of spelling, grammar, and punctuation. If this post has a serious point, it’s that those stories seem highly dubious once you actually read some of her writing.

Harriet Miers’s Blog!!!

Filed under: Grammar,Humor,Judiciary — Patterico @ 8:43 pm

Harriet Miers’s Blog turns out to have been more than a one-day wonder. It’s pretty dang funny. For example, this post:

Okay first here’s some background. Especially if your wondering why its been so long since my last post. I was trying to put into words my thoughts about Specter and the 1989 questionnaire and everything, and honestly if I hear Roe V Wade one more time I’m going to announce that I’ll just recuse myself. (Just kidding its important obv).

Just keep scrolling, and don’t miss the “Call You’re Senators” campaign.

Pundit Review Interview Is Up

Filed under: Blogging Matters,Judiciary — Patterico @ 7:27 pm

The archive of my interview with the Pundit Review Radio guys is up, here. My segment starts at about 20:50.

Let me know what you think.

The Miers Implosion

Filed under: Judiciary — Angry Clam @ 7:05 pm

[Posted by The Angry Clam]

The contract for Miers’ confirmation on InTrade has slipped below fifty, indicating that the market now believes that there is less than a 50-50 chance of her getting confirmed to the Supreme Court.

Interestingly, the contract for her receiving over 50 votes is trading around 80. That thirty point gap is, at least partially, the prediction that her nomination will be withdrawn.

I smell blood and victory in the air. Harriet Miers will slink back to Dallas to spend the rest of her career in obscurity.

— The Angry Clam

UPDATE FROM PATTERICO: I remain pessimistic, though I’d like to think the Clam is right.

Out on the Ledge

Filed under: Judiciary — Patterico @ 6:52 am

If you need me this morning, I’ll be out on the window ledge. Because it is becoming clearer and clearer that we are headed towards the confirmation of a Supreme Court justice who has no idea what the Constitution says.

The Washington Post buries the lede in this story about Harriet Miers. At paragraph 18 of the article, we see this:

[S]everal constitutional law scholars said they were surprised and puzzled by Miers’s response to the committee’s request for information on cases she has handled dealing with constitutional issues. In describing one matter on the Dallas City Council, Miers referred to “the proportional representation requirement of the Equal Protection Clause” as it relates to the Voting Rights Act.

“There is no proportional representation requirement in the Equal Protection Clause,” said Cass R. Sunstein, a constitutional law professor at the University of Chicago. He and several other scholars said it appeared that Miers was confusing proportional representation — which typically deals with ethnic groups having members on elected bodies — with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations.

Michelle Malkin notes the specific portion of Miers’s questionnaire regarding this issue (an answer to question 17 at page 49), which says:

While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.

It sure sounds like she is saying that the Equal Protection Clause requires that members of protected classes be represented on legislative bodies in numbers corresponding to their proportion in the general population. If that is indeed what she is saying, it is just stunningly wrong.

If you have a plausible alternate explanation of her comment in the context of Section 2, please let me know. But please: whisper when you do it. That window ledge is mighty narrow, and you don’t want to startle me.

UPDATE: Thanks to Instapundit readers, and thanks to Prof. Reynolds for the (unexpected) link. The main page is here for anyone who wishes to bookmark the site.

I should note that two readers (A.W. and TNugent — not the rock star/radio personality) have attempted to coax me off the ledge with explanations of Miers’s statement. I don’t pretend to speak for them, and you should read their comments in their entirety — but if I understand them correctly, they are saying that Miers may have the basic idea right, but may simply be using the wrong terminology.

Since I have reviewed very little documentation relating to the Dallas City Council case, I don’t know whether A.W. and TNugent are right. However, I note that getting the terminology (what A.W. calls “code words”) correct is important for Supreme Court Justices who are, after all, supposed to make the law clear for the rest of us.

One of two things is true. Miers either 1) expressed herself unclearly, in a way that fooled several legal scholars, or 2) believes that the Equal Protection Clause mandates proportional racial representation. Option #1 is not as bad as #2 — but it’s not great, either.

In any event, this is not the only thing that has put me out here on the ledge. Even if this is explained to everyone’s satisfaction, I still have dozens of other deep concerns about this nomination. I detail these in my Judiciary category; just click here and keep scrolling.

I’m not coming in. And don’t get too close to me!

UPDATE x2: Thanks to Jonathan Adler at Bench Memos and John Hinderaker at Power Line for the links. John appears to agree with A.W. and TNugent that Miers was making an inartful reference to the “one man, one vote” rule. Interestingly, he says that “Cass Sunstein is, for once, right” — and hyperlinks those quoted words to the article cited above, in which Sunstein says that Miers is confusing the concepts of proportional representation and “one man, one vote.” I don’t understand why commenters and pundits don’t find it troubling that Miers is confusing several legal scholars with her terminology.

UPDATE x3: Cass Sunstein was not the only legal scholar fooled by Miers’s imprecise terminology — by far. More details here.

UPDATE x4: The Supreme Court of the United States also disagrees with Miers.

Senators Do Not “Reject” Miers Answers

Filed under: Dog Trainer,Judiciary — Patterico @ 6:45 am

The lead story in the L.A. Times this morning is titled Senators Reject Miers’ Replies to Questions.

The use of the word “reject” in the headline strikes me as entirely misleading. I noted last night that Arlen Specter and Pat Leahy have sent Ms. Miers an apparently unusual letter requesting follow-up answers on a number of items. The tone of the letter appears rather stern and lecturing. And indeed, Leahy made some remarks yesterday (not included in the letter) that disparaged Miers’s replies in the questionnaire.

But I don’t think it is fair to say that Senators have rejected her answers. Headlines are difficult to write, I’m sure, but this one is exceedingly poor. As usual, the Washington Post did much better, with a story titled Senators Assail Miers’s Replies, Ask for Details.

More on that story, and the distressing things it reveals about Miers, in the next post.

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:


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.

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