Miers Conference Call

I am participating in a blogger conference call with former Texas Supreme Court Justice Craig Enoch and White House communications advisor Jim Dykes, which is just now getting underway. It is sponsored by the RNC and hosted by Patrick Ruffini, RNC eCampaign Director.

Enoch and Dykes are going to try to make the case that Miers is “highly qualified to serve on the Supreme Court.”

Let me know if you have any questions. I’ll update the post with any interesting points made during the conference.

My question is in the queue: “How do you think Miers’ qualifications stack up compared to those of Antonin Scalia, cited by President Bush as his model for the Supreme Court?”

1420: “Not everyone who gets nominated is known by commentators on the East Coast.”

1425: “Harriet Miers will be a legend on the Court before she retires.”

1426: “Many icons of the Court had never been judges.”

1429: My question wasn’t taken as there wasn’t much time for questions.

Nothing particularly substantive came out of the call, which I guess isn’t surprising. Enoch basically did a folksy version of President Bush’s basic spiel: “Trust me.” His argument, essentially, is that he worked with Miers for years and found her to have sound judgment and a conservative legal philosophy.

I’m sure he believes what he’s saying and, for all I know, he could be right. His credentials for judging Miers’ legal career certainly exceed mine. Still, the premise implied in my unanswered question still remains: She ain’t no Scalia.

I don’t mean that simply in the sense of being a reliable textualist vote on the Court; judges have a nasty habit of changing tunes once elevated to a lifetime position from which there is no promotion. Frankly, I think she’s more likely to rule in ways conservatives will like than John Roberts, with whom I had no real quarrels. 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.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Jon Henke says:

    “Not everyone who gets nominated is known by commentators on the East Coast.”

    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 do know about her.

    And, unfortunately, what we’re learning is “underwhelming” as a few Senators have put it.

    Here’s a question: Where can I go to read more about the proportional representation requirement of the Equal Protection Clause?

  2. RA says:

    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.

  3. Beldar says:

    Dr. Joyner wrote,

    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.

    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 more certainly throughout 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 none 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 about the law 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’t seen it. And neither have I. But I guarantee you, it’s out there somewhere.

    Where precisely? Well, with the exception you noted of a few bar journal and other professional articles, it’s not 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 never 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.

    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.

    Now, I imagine what you’re muttering to yourself, Dr. Joyner, is something like, “Well, I wasn’t talking about that when I said ‘legal writing.'” And you probably weren’t. You were thinking of Scalia, and thinking of the kind of legal writing he’d 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 not 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 huge 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 success when it happened.) As for the law review articles, well, they’re indeed likely to be considerably more abstract as a class, and frankly less 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 mostly 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.)

    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. 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. 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 problems with the Supreme Court of recent decades has been that it’s packed with nothing but 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.

    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.

  4. Pablo says:

    I am participating in a blogger conference call

    If the administration is resorting to “blogger conference calls” to push for Miers’ nomination, they must be exceptionally desperate!

  5. Lorne says:

    It is sponsored by the RNC and hosted by Patrick Ruffini, RNC eCampaign Director.

    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’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.

    Miers, as White House Counsel, would be the appropriate person to give advice to the Prez & 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.