Bork on Miers

I was doing some reading on the Bork nomination and came across the following, which is interesting in light of the discussion over partisanship and failed nominations as well as the question of who attacked Harriet Miers’ resume when she was nominated.

Robert Bork wrote in the pages of the WSJ:

There is, to say the least, a heavy presumption that Ms. Miers, though undoubtedly possessed of many sterling qualities, is not qualified to be on the Supreme Court. It is not just that she has no known experience with constitutional law and no known opinions on judicial philosophy. It is worse than that. As president of the Texas Bar Association, she wrote columns for the association’s journal. David Brooks of the New York Times examined those columns. He reports, with supporting examples, that the quality of her thought and writing demonstrates absolutely no "ability to write clearly and argue incisively."

He goes on to criticize her on philosophical grounds in the rest of the column.

At a minimum we have here a conservative icon lionized by many on the right because of treatment as a SCOTUS nominee detailing in rather clear terms why he thought Miers was unfit for the bench. So, I would refer anyone who thinks that Miers was torn down my the MSM or by liberals to the column (as well as the one by Charles Krauthammer that I noted earlier).

Really, there is no basis from which to argue that Miers had to withdraw because of excessive partisanship from the left.

FILED UNDER: Law and the Courts, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Steve Plunk says:

    I don’t recall a rush to defend Miers or blame the MSM for her failure as a nominee. There might have been a few but conservatives in general saw it as a weak nomination.

  2. Drew says:

    If you want to base your thesis on Harriet Myers, have at it. The quintessential weak reed.

    If you want to paraphrase Bork’s remarks to our current nominee – she has a sparse record, no judicial experience and was depantsed, er, more eloquently, had no “ability to write clearly and argue incisively” a couple times in front of the Court.

    Why is this so hard? This denial of the political/partisan nature of Supreme Court confirmation is just irrational, and absurd on its face. What is the motivation for this position in light of empirical evidence blasted all over media of all types?

  3. @Steve: There are people right now (like Monica Crowley that I linked yesterday) who are trying to argue that Miers had to withdraw because of the MSM, etc.

    @Drew:

    This denial of the political/partisan nature of Supreme Court confirmation is just irrational, and absurd on its face.

    You would have a point if that is what I was saying. Perhaps I am being insufficiently clear.

  4. Drew says:

    So, Steven, many words have been spilled. Exactly waht is your point?

  5. Drew,

    I have written a number of posts on the topic, and indeed have attempted multiple points, depending on the post. I may try again tomorrow, so we’ll see.

    The point in the post you initially commented on (I think) was simply that there is not a special anti-Republican bias in the process over time, Bork excepted.

  6. Drew says:

    Steven –

    With all due respect, I think that’s a bit artificial. If we acknowledge this is inherently a political/partisan process, then we are only talking Democrats and Republicans. Its not like the Natural Law Party nominates many Supreme Court judges.

    So the point I have made, and I think charles austin made, was that a) the process is partisan, and b) historically the existant balance of political power, and willingness to get down and dirty, has advantaged the Democrats. Its not supernatural. It shouldn’t be controversial.

    And I guess my fundamental point is that you and some commentors seem to be trying to sanitize this reality. Look, from my perspective, no tears. Elections and ability to make your arguments in the public domain matter. That’s just our system. But that does not induce me to deny the reality unfolding in front of my eyes and ears.

    Harriet Miers seems to be a legitimate outlier, but we could all line up a crew of pols and “experts” who could take each of the other sides nominees over the last 50 years and crucify them. And they have. And they will continue to do so. And sometimes it was grotesque and unfair. But its just a tug of war. I do happen to believe the right plays with rubber knives. As I snarked, I doubt we will have Republican Senators asking nominee Kagan about Mr. Silver, no matter her personal life.

    BTW – welcome to the site, and I enjoy reading your stuff. I’m just a bit direct.

  7. Dodd says:

    Really, there is no basis from which to argue that Miers had to withdraw because of excessive partisanship from the left.

    They want to take credit for Lott losing his Majority Leader slot, too. But wishing doesn’t make it so.

    Meirs’ nomination was pushed over the edge when the right turned on her once her squishiness was known. And a good thing, too. Alito is excellent.

    It’s not that there’s an ‘anti-Republican’ bias in the process. It’s that the left has no qualms whatsoever about engaging in scorched earth tactics over SCOTUS and the right isn’t. So, while the right was able to persuade Bush to pull back on Meirs (something that simply isn’t going to be repeated with Obama in response to left-wing criticism of Kagan absent her being caught with the proverbial live boy or dead girl), we’ve never done to one of their nominee what they lustily did to Bork, Pickering, Thomas, Alito, Janice Brown, &c….

  8. legion says:

    It’s been some time, so I can’t be 100% sure, but I don’t recall people saying Bork wasn’t qualified for the job – more that he simply couldn’t be trusted not to pre-judge every case by his own stridently conservative philosophy. That’s a big difference between him & Meiers, and probably accounts for her tepid support even among conservatives…

  9. steve says:

    “ability to write clearly and argue incisively”

    Eugene Volokh described her writing as excellent. Her writings are cited very often by other lawyers.

    “we’ve never done to one of their nominee what they lustily did to Bork”

    Abe Fortas.

    Steve

  10. Trumwill says:

    The right had a stronger case on partisanship in the Post-Bork era until more recently. Republican opposition to Democratic nominees had typically been minimal. Ginsburg and Breyer each got close to 90 votes while Republicans seemed to have to tread quite carefully to get anybody through.

    But then Bush figured out the formula and got two conservative nominees through. Even then, they may have had a good argument about two qualified nominees getting less than 75 votes for reasons it’s hard to say are anything but ideological. But then Sotomayor came along and Republicans gave her grief on grounds that can hardly be described as anything but ideological.

    At this point, things are pretty even. If Republicans were having trouble getting people confirmed because they were making bad picks, they’ve since learned from it. If Democrats were getting off easy with Republican failure to mount opposition on ideological/partisan grounds, they’re not anymore. If Republicans were having trouble because of rank partisanship on the part of Democrats, well they’ve sunk to that same level.

    Whatever claims Republicans may have had to martyrdom have passed.

  11. James Joyner says:

    Eugene Volokh described her writing as excellent. Her writings are cited very often by other lawyers.

    You sure you’re not thinking of Elena Kagan rather than Harriet Miers? I know Volokh has said that of the former.

    It would be odd for Miers to be cited much, since she isn’t a legal scholar.