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	<title>Comments on: Miers Conference Call</title>
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		<title>By: Lorne</title>
		<link>http://www.outsidethebeltway.com/archives/miers_conference_call/comment-page-1/#comment-61575</link>
		<dc:creator>Lorne</dc:creator>
		<pubDate>Sat, 22 Oct 2005 04:35:02 +0000</pubDate>
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		<description>&lt;blockquote&gt;It is sponsored by the RNC and hosted by Patrick Ruffini, RNC eCampaign Director.&lt;/blockquote&gt;

Why in the world is a political party involved in pushing the nomination?  Parties are supposed to be involved in the political work of recruiting and promoting candidates for public office.  The nomination of a supreme court justice is an act of governance by a public official.  Parties should stay out of it.

On the topic of Miers and party work, did anyone ask her why she hasn&#039;t responded to inquiries documenting Karl Rove&#039;s time spent last year doing political campaign work? As a public official, his government salary should not subsidize political work.  When Bush called him the &quot;architect&quot; of his campaign it makes it important to have some sort of documentation making sure that his political work was not done on government time.

Miers, as White House Counsel, would be the appropriate person to give advice to the Prez &amp; his advisors on how to negotiate such work.  Numerous government spending watchdog groups have asked her in writing about this and she has never responded.</description>
		<content:encoded><![CDATA[<blockquote><p>It is sponsored by the RNC and hosted by Patrick Ruffini, RNC eCampaign Director.</p></blockquote>
<p>Why in the world is a political party involved in pushing the nomination?  Parties are supposed to be involved in the political work of recruiting and promoting candidates for public office.  The nomination of a supreme court justice is an act of governance by a public official.  Parties should stay out of it.</p>
<p>On the topic of Miers and party work, did anyone ask her why she hasn't responded to inquiries documenting Karl Rove's time spent last year doing political campaign work? As a public official, his government salary should not subsidize political work.  When Bush called him the "architect" of his campaign it makes it important to have some sort of documentation making sure that his political work was not done on government time.</p>
<p>Miers, as White House Counsel, would be the appropriate person to give advice to the Prez &amp; his advisors on how to negotiate such work.  Numerous government spending watchdog groups have asked her in writing about this and she has never responded.</p>
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		<title>By: Pablo</title>
		<link>http://www.outsidethebeltway.com/archives/miers_conference_call/comment-page-1/#comment-61574</link>
		<dc:creator>Pablo</dc:creator>
		<pubDate>Sat, 22 Oct 2005 04:25:51 +0000</pubDate>
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		<description>&lt;blockquote&gt;I am participating in a blogger conference call&lt;/blockquote&gt;

If the administration is resorting to &quot;blogger conference calls&quot; to push for Miers&#039; nomination, they must be exceptionally desperate!</description>
		<content:encoded><![CDATA[<blockquote><p>I am participating in a blogger conference call</p></blockquote>
<p>If the administration is resorting to "blogger conference calls" to push for Miers' nomination, they must be exceptionally desperate!</p>
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		<title>By: Beldar</title>
		<link>http://www.outsidethebeltway.com/archives/miers_conference_call/comment-page-1/#comment-61563</link>
		<dc:creator>Beldar</dc:creator>
		<pubDate>Fri, 21 Oct 2005 23:54:29 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/12380#comment-61563</guid>
		<description>Dr. Joyner wrote, 

&lt;blockquote&gt;The problem is that her history of legal writing is virtually non-existent, consisting almost entirely of op-ed type pieces as head of the Texas Bar.&lt;/blockquote&gt;

That&#039;s not at all right.  Since even before she was graduated from law school in 1970, certainly continuing through her two-year clerkship with a federal district judge, and even &lt;i&gt;more&lt;/i&gt; certainly &lt;i&gt;throughout&lt;/i&gt; her years as a practicing lawyer, Ms. Miers has been doing &quot;legal writing&quot;:  a student law review note, then opinions for her judge; then countless trial-court and some appellate-court motions and briefs, plus correspondence with clients, colleagues, and opposing counsel.  And in a high-end commercial practice like hers, almost &lt;i&gt;none&lt;/i&gt; of that legal writing would have been drawn from a form book or on trivial matters.  When I speak of correspondence, for example, I&#039;m not talking about &quot;Enclosed for filing please find two copies ...&quot; or &quot;This will confirm our agreement to conduct the deposition on Wednesday, November 8th ....&quot;  No, I&#039;m talking about writing &lt;i&gt;about the law&lt;/i&gt; and how it applies to the particular facts of the cases she was handling -- writing that would certainly be of the same general character as the written opinions with which judges announce their decisions.

You just haven&#039;t seen it.  And neither have I.  But I guarantee you, it&#039;s out there somewhere.

Where precisely?  Well, with the exception you noted of a few bar journal and other professional articles, it&#039;s &lt;i&gt;not&lt;/i&gt; online.  Some goodly portion of it is shielded by attorney client and work product privileges belonging to the clients whom she&#039;s represented (including but by no means limited to the POTUS).  We&#039;ll likely &lt;i&gt;never&lt;/i&gt; see that.  Other bits and pieces are likely salted through vast and now dusty sets of files in state and federal courts scattered throughout Texas, indexed not by her name, but by the case names, which may or may not be readily cross-referenced back to her name depending upon how far back one&#039;s going.

Moreover, all of this body of legal writing was what she was making her living creating.  The bar journal articles you&#039;re reading were the fluff, the distraction, from the writing she almost certainly put much more time and effort into researching, composing, and polishing -- that which she sent out on behalf of her clients.  We&#039;d likely think less of Charles Dickens&#039; writing if we drew our opinions from his chatty letters to friends or his laundry lists instead of his novels.

Now, I imagine what you&#039;re muttering to yourself, Dr. Joyner, is something like, &quot;Well, I wasn&#039;t talking about &lt;i&gt;that&lt;/i&gt; when I said &#039;legal writing.&#039;&quot;  And you probably weren&#039;t.  You were thinking of Scalia, and thinking of the kind of legal writing &lt;i&gt;he&#039;d&lt;/i&gt; mostly done before he went on the SCOTUS:  Law review articles as a professor, then opinions as a circuit judge.  All of those are more easily collected and they&#039;re designed for publication, of course.  But the judicial opinions in particular are simply &lt;i&gt;not&lt;/i&gt; fundamentally different in kind from what Ms. Miers has written as a practicing lawyer. Her writings likely address the same kinds of legal issues, same kinds of fact patterns, that Scalia saw as a circuit judge.  (And not that he&#039;s likely to have done so, but many judges lift &lt;i&gt;huge&lt;/i&gt; portions of reasoning, precedent, even phrasing from the briefs that practitioners like Ms. Miers or I submit to them, which we consider very much a &lt;i&gt;success&lt;/i&gt; when it happened.)  As for the law review articles, well, they&#039;re indeed likely to be considerably more abstract as a class, and frankly &lt;i&gt;less&lt;/i&gt; valuable for drawing reasonable inferences about how their writers might perform as judges than that which practitioners have written for courts.  (Law review articles are written &lt;i&gt;mostly&lt;/i&gt; for other law review article writers -- especially tenure boards.  I can count on both hands the number of occasions I&#039;ve had to cite a law review article to a judge in my twenty-five years of practice.)

I&#039;m relatively sure you&#039;ve consciously tried, Dr. Joyner, to be open-minded about Ms. Miers, and I know from your other writings that you&#039;re no follower of herd mentalities.  So I impute no malice, nor even carelessless, in your making a statement like this.  &lt;b&gt;Your statement represents a very typical failure of imagination in assessing the Miers nomination, caused mainly by your expectations as shaped by other recent nominees who haven&#039;t come from the ranks of practicing lawyers.&lt;/b&gt;  Even John Roberts, who was indeed a successful lawyer in private practice in addition to being a government lawyer and judge, had an extremely unusual and highly academic sort of law practice, in some respects closer to what Justice Scalia had done as a professor than what Harriet Miers has done as a lawyer.

Some of us who are practicing lawyers believe that one of the main &lt;i&gt;problems&lt;/i&gt; with the Supreme Court of recent decades has been that it&#039;s packed with nothing &lt;i&gt;but&lt;/i&gt; academics and ex-judges.  We believe that there&#039;s no way a nine-member Court with, say, three lawyers who&#039;d come from the bar, rather than from ivory towers or lower-court benches, would have issued ten opinions in two cases on a single day to try to explain why displaying the Ten Commandments was unconstitutional in Kentucky yet constitutional in Texas.

I hope you&#039;ll open your imagination to the different kinds of smarts, the different kinds of qualifications, that a lawyer from the real world could bring to the SCOTUS, sir.</description>
		<content:encoded><![CDATA[<p>Dr. Joyner wrote, </p>
<blockquote><p>The problem is that her history of legal writing is virtually non-existent, consisting almost entirely of op-ed type pieces as head of the Texas Bar.</p></blockquote>
<p>That's not at all right.  Since even before she was graduated from law school in 1970, certainly continuing through her two-year clerkship with a federal district judge, and even <i>more</i> certainly <i>throughout</i> her years as a practicing lawyer, Ms. Miers has been doing "legal writing":  a student law review note, then opinions for her judge; then countless trial-court and some appellate-court motions and briefs, plus correspondence with clients, colleagues, and opposing counsel.  And in a high-end commercial practice like hers, almost <i>none</i> of that legal writing would have been drawn from a form book or on trivial matters.  When I speak of correspondence, for example, I'm not talking about "Enclosed for filing please find two copies ..." or "This will confirm our agreement to conduct the deposition on Wednesday, November 8th ...."  No, I'm talking about writing <i>about the law</i> and how it applies to the particular facts of the cases she was handling -- writing that would certainly be of the same general character as the written opinions with which judges announce their decisions.</p>
<p>You just haven't seen it.  And neither have I.  But I guarantee you, it's out there somewhere.</p>
<p>Where precisely?  Well, with the exception you noted of a few bar journal and other professional articles, it's <i>not</i> online.  Some goodly portion of it is shielded by attorney client and work product privileges belonging to the clients whom she's represented (including but by no means limited to the POTUS).  We'll likely <i>never</i> see that.  Other bits and pieces are likely salted through vast and now dusty sets of files in state and federal courts scattered throughout Texas, indexed not by her name, but by the case names, which may or may not be readily cross-referenced back to her name depending upon how far back one's going.</p>
<p>Moreover, all of this body of legal writing was what she was making her living creating.  The bar journal articles you're reading were the fluff, the distraction, from the writing she almost certainly put much more time and effort into researching, composing, and polishing -- that which she sent out on behalf of her clients.  We'd likely think less of Charles Dickens' writing if we drew our opinions from his chatty letters to friends or his laundry lists instead of his novels.</p>
<p>Now, I imagine what you're muttering to yourself, Dr. Joyner, is something like, "Well, I wasn't talking about <i>that</i> when I said 'legal writing.'"  And you probably weren't.  You were thinking of Scalia, and thinking of the kind of legal writing <i>he'd</i> mostly done before he went on the SCOTUS:  Law review articles as a professor, then opinions as a circuit judge.  All of those are more easily collected and they're designed for publication, of course.  But the judicial opinions in particular are simply <i>not</i> fundamentally different in kind from what Ms. Miers has written as a practicing lawyer. Her writings likely address the same kinds of legal issues, same kinds of fact patterns, that Scalia saw as a circuit judge.  (And not that he's likely to have done so, but many judges lift <i>huge</i> portions of reasoning, precedent, even phrasing from the briefs that practitioners like Ms. Miers or I submit to them, which we consider very much a <i>success</i> when it happened.)  As for the law review articles, well, they're indeed likely to be considerably more abstract as a class, and frankly <i>less</i> valuable for drawing reasonable inferences about how their writers might perform as judges than that which practitioners have written for courts.  (Law review articles are written <i>mostly</i> for other law review article writers -- especially tenure boards.  I can count on both hands the number of occasions I've had to cite a law review article to a judge in my twenty-five years of practice.)</p>
<p>I'm relatively sure you've consciously tried, Dr. Joyner, to be open-minded about Ms. Miers, and I know from your other writings that you're no follower of herd mentalities.  So I impute no malice, nor even carelessless, in your making a statement like this.  <b>Your statement represents a very typical failure of imagination in assessing the Miers nomination, caused mainly by your expectations as shaped by other recent nominees who haven't come from the ranks of practicing lawyers.</b>  Even John Roberts, who was indeed a successful lawyer in private practice in addition to being a government lawyer and judge, had an extremely unusual and highly academic sort of law practice, in some respects closer to what Justice Scalia had done as a professor than what Harriet Miers has done as a lawyer.</p>
<p>Some of us who are practicing lawyers believe that one of the main <i>problems</i> with the Supreme Court of recent decades has been that it's packed with nothing <i>but</i> academics and ex-judges.  We believe that there's no way a nine-member Court with, say, three lawyers who'd come from the bar, rather than from ivory towers or lower-court benches, would have issued ten opinions in two cases on a single day to try to explain why displaying the Ten Commandments was unconstitutional in Kentucky yet constitutional in Texas.</p>
<p>I hope you'll open your imagination to the different kinds of smarts, the different kinds of qualifications, that a lawyer from the real world could bring to the SCOTUS, sir.</p>
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		<title>By: Don Surber</title>
		<link>http://www.outsidethebeltway.com/archives/miers_conference_call/comment-page-1/#comment-61542</link>
		<dc:creator>Don Surber</dc:creator>
		<pubDate>Fri, 21 Oct 2005 21:28:29 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/12380#comment-61542</guid>
		<description>&lt;strong&gt;Buy Harriet&lt;/strong&gt;

James Joyner at Outside the Beltway also listened in and was not impressed. While I disagree with many anti-Miers people, I give props to those antis who still listen. I agree, Judge Enoch was not convincing.</description>
		<content:encoded><![CDATA[<p><strong>Buy Harriet</strong></p>
<p>James Joyner at Outside the Beltway also listened in and was not impressed. While I disagree with many anti-Miers people, I give props to those antis who still listen. I agree, Judge Enoch was not convincing.</p>
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		<title>By: RA</title>
		<link>http://www.outsidethebeltway.com/archives/miers_conference_call/comment-page-1/#comment-61531</link>
		<dc:creator>RA</dc:creator>
		<pubDate>Fri, 21 Oct 2005 21:03:50 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/12380#comment-61531</guid>
		<description>Conservatives have been waiting 30 years to turn the court to the right.  Now we have it and we want to know for sure and we want to know right now.

If we knew right now i.e. Janice Rogers Brown, there is a good chance she would be successfully filibustered or possible voted down by abortionist Republicans.

Bush has to know this woman better than he knew John Roberts.  Is there anyone out there who will bet me, giving me 100-1 odds that Roberts will overturn Roe?

We all have to wait and see.  My gut feeling is I trust Miers more than I trust Roberts.  Being a pointee headed wonk does not trump personal character.</description>
		<content:encoded><![CDATA[<p>Conservatives have been waiting 30 years to turn the court to the right.  Now we have it and we want to know for sure and we want to know right now.</p>
<p>If we knew right now i.e. Janice Rogers Brown, there is a good chance she would be successfully filibustered or possible voted down by abortionist Republicans.</p>
<p>Bush has to know this woman better than he knew John Roberts.  Is there anyone out there who will bet me, giving me 100-1 odds that Roberts will overturn Roe?</p>
<p>We all have to wait and see.  My gut feeling is I trust Miers more than I trust Roberts.  Being a pointee headed wonk does not trump personal character.</p>
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		<title>By: Jon Henke</title>
		<link>http://www.outsidethebeltway.com/archives/miers_conference_call/comment-page-1/#comment-61507</link>
		<dc:creator>Jon Henke</dc:creator>
		<pubDate>Fri, 21 Oct 2005 18:33:19 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/12380#comment-61507</guid>
		<description>&lt;blockquote&gt;&quot;Not everyone who gets nominated is known by commentators on the East Coast.&quot;&lt;/blockquote&gt; You know, it might help if they weren&#039;t so condescending.   Nobody opposes Harriet Miers because they don&#039;t know her name -- they oppose her because that&#039;s almost the only thing we &lt;em&gt;do&lt;/em&gt; know about her.   

And, unfortunately, what we&#039;re learning is &quot;underwhelming&quot; as a few Senators have put it.  

Here&#039;s a question:  Where can I go to read more about the proportional representation requirement of the Equal Protection Clause?</description>
		<content:encoded><![CDATA[<blockquote><p>"Not everyone who gets nominated is known by commentators on the East Coast."</p></blockquote>
<p> You know, it might help if they weren't so condescending.   Nobody opposes Harriet Miers because they don't know her name -- they oppose her because that's almost the only thing we <em>do</em> know about her.   </p>
<p>And, unfortunately, what we're learning is "underwhelming" as a few Senators have put it.  </p>
<p>Here's a question:  Where can I go to read more about the proportional representation requirement of the Equal Protection Clause?</p>
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