Posted on 10/06/2005 2:25:34 PM PDT by quidnunc
My teammate X was sprawled on the hotel bed, muttering "Why? Why?" as he contemplated the failure of his legal genius.
X was the smartest member of my law school's moot court team. He wasn't the finest of public speakers and his legal writing style wasn't textbook perfect, but who could question his monumental intellect? He won the award for highest first-year GPA. He read abstruse law and philosophy journals for fun. He debated with professors after class, exercising a subject mastery that left onlookers slack-jawed. And when he proudly announced to his moot court teammates that he had found an obscure jurisdictional issue in the tournament fact pattern — a discovery that we just had to present to the tournament judges — who were we to object?
The moot court judges spanked his pet idea like an unruly two-year-old. The alabaster castle of X's elegantly crafted oral arguments fared badly against the massive sledgehammer of blunt legal reality. The moot court judges were local litigating attorneys who had no patience for cutesy law review theories and tricky, if-you-read-the-law-a-certain-way shenanigans. For all his brilliance, X had failed to persuade. And, absent persuasion, the law is just a game of Scrabble, played with ideas for tiles.
Where brilliance failed, directness succeeded. My partners and I avoided X's ultra-intelligent theory altogether in our oral arguments, and subsequently made the break to semifinals at the tournament.
I thought of X when I read the blogosphere response to the nomination of Harriet Miers to the Supreme Court. A litigator with a resume lacking in the oak-leaf clusters and gold-plated bowling trophies that separate the super legal achievers from the super-super legal achievers, Miers has been damned as an over-promoted crony and praised with the kind of lackluster yet overwrought accolades usually reserved for the fastest kid in the Special Olympics race. The famous quote from Senator Roman Hruska has been much cited. Of a dubious Supreme Court nominee, Senator Hruska once said: "Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there." Har, har! What a ludicrous defense of a hopeless nimrod! Har har har har har!
After we've harred our merry hars, let us reflect on the poorly articulated wisdom hidden in Senator Hruska's words. Lawyers, judges, and people do tend to be average. (Average is funny that way; it's like a mathematical law or something.) We might benefit from a justice smart enough to be smart and average enough to connect with the other 99% of the legal profession. But we aren't likely to find such a justice among the Xs of the legal profession.
Law students like X tend to end up in the judiciary, and later in life they dominate the Supreme Court. And it shows. Consider the Lemon test. Derived from a 1971 Supreme Court decision, the Lemon test is a conceptual tool for determining whether the government has "established" religion in violation of the First Amendment of the Constitution. It's a three-pronged test, and subsequent Supreme Court jurisprudence has added to it lots of modifiers and sub-clauses and associated intellectual debris. The result has been jurisprudential chaos. Predicting the constitutionality of a governmental interaction with religion is like playing an expert-level game of Minesweeper: it's half educated guessing and half dumb luck, with bombs randomly strewn across the playing field to thwart your meticulous reasoning at unexpected times. Such over-reasoned intellectual froth has the mark of X all over it.
-snip-
MOOSEMUSS. Yes, MOOSEMUSS. That is what came to mind when the discussion amongst the right about the Harriet Miers nomination went into full tilt yesterday … MOOSEMUSS.
Hat tip to Mr. Atos for planting the seed with his Bangalore Torpedo piece, and after all the rancor yesterday, I thought, MOOSEMUSS.
I don’t buy the theory that in an instant, that the President, who incidentally, got the GWOT right, and the John Roberts nomination right, who has Dick Cheney as his VP and Condi Rice as his SOS … blew a gasket and has gotten this completely wrong. I thought … maybe … MOOSEMUSS.
I think that the President had many possible choices here, but I think he chose to be a bit more devious than he is being given credit for. I think he, as Mr. Atos points out, is taking this opportunity to covertly attack the leadership and structure of the Democrat base. Why do I think that? MOOSEMUSS.
MOOSEMUSS is the easily learned acronym that highlights the nine, generally accepted, Principles of War. Notice I didn’t say battle. Battle … a general encounter between armies, ships of war, or airplanes. War … a period of declared and open hostilities. For the uninitiated, fighting wars … protracted periods of combat, and fighting battles … encounters between warring forces, are two entirely different matters and require two entirely different schemes. One, war, requires strategic thinking, and battles, require tactical thinking. These are two entirely different operational levels.
So, when I think MOOSEMUSS, I am not considering the tactical, I am considering the strategic.
Let’s look at the Miers nomination and see if, somehow, the guy who got the GWOT, may also get the Principles of War, when it comes to waging a long term strategic campaign against the Democrats.
M – Mass – Concentrate Combat Power at decisive time and place.
I think the President gets it … this is not the time to force an all out fight with the Democrats … he is not willing to expend all of his political capital in order to push through a more controversial nomination. Let’s chip away until the mid-term election, but let’s don’t give them any additional ammo going into them.
O – Objective – Direct every military operation against a clearly defined, decisive and obtainable objective.
Again, this nomination, while important, is not the final conservative objective … I would view that as the ultimate emasculation of the Democrat Party to the point it is ineffective as an organization. This nomination is an intermediate objective, but not the final objective … no need to expend all of your ammo here.
O – Offensive – Seize, retain and exploit the initiative.
This nomination is a home run here. The Dems were obviously preparing for the worst … basically any other, very conservative judge, they were ready. They would have come out of the box on Monday morning with their canned offensive and dominated the evening news with their media blitz. The President, with this nomination, redefined the fight, put the Dems on defense, and is able to maintain the initiative, against the Democrat party for the foreseeable future. Harry Reid endorsing Miers, is a much a capitulation as it is an endorsement. The President put the Dems on their heels and took away their ammo …
S – Surprise – Strike the enemy at a time, a place and in a manner for which he is unprepared.
See above- Offensive. This move completely disarmed the Dems. They were immediately frozen, and have yet to get any traction on this issue, in any coherent way. This was achieved by coming across with a surprise nomination, not by attacking their prepared defenses.
-snip-
(Major Mike in My Sandman, October 5, 2005)
To Read This Article Click Here
Justification: "We should purposely nominate un-qualified people"
Just pathetic.
Good reads..I welcome the new insights.
Quote:
MOOSEMUSS corollary ... perfect can be the enemy of good enough.
Critic's Justification: "If she doesn't meet my arbitrary resume conditions X, Y, & Z, she is totally unqualified."
More pathetic.
"There are 1,084,504 lawyers in the U.S. What distinguishes Harriet Miers from any of them other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous." -Charles Krauthammer
That says it for me.
I really do not know how to respond to you. The big issue with a SCOTUS nomination is not a President who nominates her and will be gone from the political scene in 3 years.
The IMPORTANT issue is not whether or not the President made a wise choice but whether or not SHE is a wise choice.
Is Ginsberg qualified to "interpret" the Constitution? How about Souter?
[[The people writing these defensive articles need to start coming to HER defense instead of that of the President.]]
An interesting point, but one that seems to be lacking in substantive reason when considering those entrenched will not change their minds. Plenty has been written in her defense, and the retort is always the same - they seek to demean because she is not who they wanted. They think their judgement is better than the president's. They think their crystal ball and strategy is better. Yet, they avoid that being a 'papered judge' is not the constitutional standard for a SCOTUS judicial nominee.
In the legal profession (as a lawyer), she can hardly be described as a lightweight. You do not get voted, not once, but twice, as one of the Top 100 Most Influential Lawyers in the U.S. without some serious intellectual acumen in the legal profession. Over 33% of of Supreme Court justices in our history have had no experience as judges. I have seen o serious case made against her, the sole objection is the double standard of wanting a litmus test to guarantee how she will rule. I refuse to buy into that ideological hypocrisy.
But beyond simply focusing on her, it is very relevant to focus on the big picture, the end game and the startegy employed to get there. Miers is simply one battle in the war over the direction of the Supreme Court. Miers is a half step, replacing O'Connor, who half the time voted as we wanted. Miers is unquestionably more conservative than O'Connor. My eye is on the big battle that will occur when Stevens and/or Ginsberg step down. They are the next two that figure to become open and that will be the decisive one that shapes the court for a generation or more.
It is called big picture thinking, keeping your eye on the future and not losing focus. If conservatives cannot remain focused, and instead fight amongst themselves over a non-decisive issue, when that big battle comes, we will not be prepared to fight and win. The one truism about war that definitely holds true in politics is 'divide and conquer'. Make no mistake, the democrats are rubbing their hands together in glee over this division.
You will hear some say "It is Bush's fault". I say that is garbage, take responsibility for your own actions and reactions. We each choose to act and react as we do, no one makes us do so. If the conservative spectrum can wake up to the big picture, because of the Reid and Leahy democrat foul up of suggesting her, this will be a no lose battle for the conservatives and a no win battle for the democrats. We have a chance here to strike a debilitating blow to the left, hewing the progressive left away from the centrist democrats, one that will fracture their base, if we stop attacking each other in a vitriolic manner.
This is not the result of any strategy. It is a result of having too little courage to do battle with the enemies of the republic.
[["There are 1,084,504 lawyers in the U.S. What distinguishes Harriet Miers from any of them other than her connection with the president?]]
She has 'twice', not just once, been voted among the Top 100 most influential lawyers in the U.S (both times before coming to the White House and she was certainly not a household name). How many of those 1,000,000+ lawyers can say that ? I would say that pares that list down considerably.
Krauthammer, though generally providing some good analysis, has always been a little bit of a snob.
MOOSEMESS is more like it.
Let's face it: This is less about Miers' "qualifications" than about the fact that we've been itching for a fight with the left.
After all, no one questions whether a lunatic like Souter is "qualified," do they? No, they don't. And Republicans *never* questioned the "qualifications" of a lunatic ACLU lawyer like Ginsberg. But they're sure raising a stink about it now.
What? Are progressive republicans concerned that Harriet might not find a justification for gay marriage in a penumbra emenating from the Equal Protection Clause?
It's not "progressive" Republicans making a stink about this, it's grassroots patriots wondering whose interests she will serve on the court and how well she will serve them.
Oh. So you've dropped the issue as to whether or not "she's qualified," aye?
Well, that was quick.
I think judging her before she has had a chance at presenting her case in a confirmation hearing is pathetic.
Does she just look unqualified?
Have you been a foreman on a Texas Grand Jury lately?
I think a lot of the objection is he had the pick of the top 1% of conservative lawyers in this country and they were not "good enough" in his mind.
There are dozens who would not have to prove themselves to anybody but Miss Miers is now in the unfortunate position of having to do that at the same time keeping the Dems at bay.
It is a difficult feat to accomplish.
They are indeed qualified and they are often wrong.
"judging her before she has had a chance at presenting her case in a confirmation"
There is no case except "If you don't support her you're not a real conservative".
Oh. So the logic is that one can often be wrong about the Constitution and yet be qualified to interpret it, yet one cannot be assumed to be qualified if one does not have a degree from an Ivy League university. Is that it?
I have no idea what an IV league degree has to do with anything and I certainly do not feel it is necessary to be on the SCOTUS. There are many factors that qualify people to sit on the Supreme Court and educational excellence is only one of them.
That's one issue, but the bigger issues are the obvious conflict of interest, the unanswered question of why so many better-qualified candidates were passed over, and all the unresolved question marks about who she really is and what she believes.
She appears to be the personal agent of the President. And that's not the role of a Supreme Court Justice.
Wow the personal agent of the President. There you go. Case settled.
Umm...what's unqualified about Miers or Byron White for that matter?
White got it right on Roe. A majority of pointy-heads divined a brand new right that was so loopy you NEEDED a doctorate to think it up.
The continuing failure of this nominee's supporters to directly answer any substantive question (such as those I outlined above) does not speak well for the quality of the nomination.
Well you're the thoughtomator man, you can't expect us mortals to play in your league.
[[I think a lot of the objection is he had the pick of the top 1% of conservative lawyers in this country and they were not "good enough" in his mind.]]
Remember, there are over 1,000,000 lawyers in this country, she was named among the Top 100 twice. The Top 1% would include 10,000 lawyers. Being in the Top 100 only once would place her in the Top .01% of lawyers, twice puts her in an even more elite class. I would say that is a pretty good qualification as good enough, better than 99%+ of the Top 1%.
The continuing failure of this nominee's supporters to directly answer any substantive question (such as those I outlined above) does not speak well for the quality of the nomination.
I've answered these questions many times I'm quite sick of doing it. The nominee's detractors can't pay attention to anything but their own obstreperousness what can possibly be done to help them?
ONE LAST TIME:
After looking at all the candidates the you, I, and whoever liked, the President clearly wasn't happy. This is the same President who faultlessly nominated candidates you like over the last 5 years. But he didn't have a good feeling about any of them. He had all their background information (which you and I don't have) and he wasn't happy. But he did know a hard working qualified attorney that had helped him pick all his nominations over the past five years (the ones you and I liked). He DID have a good feeling about her. He KNEW she wouldn't surprise him later because he had known her for almost 20 years.
So he picked her. No, he wouldn't have done it if he had not known her so well. Knowing her so well was what made him know she was a good pick.
Answered?
I thank you for the good faith attempt, it is certainly more than others have tried to do in response to my questions.
However, while the President has nominated many great candidates in the past for various positions, he has also committed some egregrious blunders - I'll name a few: Powell, Gonzales, and recently Julie Meyers; Tommy Thompson is questionable at best (and judging performance, less than that), maintaining Norman Minetta, and others (e.g. Richard Clarke, no small error). So while he's got a good overall record, that is not applicable to every instance.
I'm sorry, but I find it incredibly hard to believe that out of all the outstanding judges who were considered, even among those that have already been confirmed by this Senate, he could not find a better pick. Relying on the argument that their personal relationship made the difference goes right back to my initial objection of a conflict of interest. He may know her well - but nobody else does.
You don't pick Supreme Court justices like you pick your friends. You pick someone who will uphold and defend the Constitution of the United States. There is no record of this nominee doing so. Other candidates have extensive records of doing so. All the arguments for this candidacy ultimately rest on the following assertions:
a) The President has judged the character and ability of this nominee correctly; and
b) The President has chosen this nominee based on his past promises.
Neither assertion is reliable enough to form the basis to support a Supreme Court candidate.
You missed a very important qualifier in my statement.
Top 1% of CONSERVATIVE lawyers. Miss Meirs credentials as a lawyer appear to be adequate but there is little or no evidence she has used them to advance the Conservative cause or that of the Republican Party.
When she was on the advisory board at SMU law school she set up a women's lecture series. The women she invited were Patricia Schroeder (democratic congress woman), Gloria Steinam (liberal feminist) and Ann Richards (Democratic Governor of Texas). This was in the late 1990's.
I doubt it, Souter/ Ginsberg probably think it something that requires a laxative.
Ah! But none of those were JUDICIAL nominees. Could it be that the aid he received from Harriet Miers had something to do with that? (BTW he didn't hire Dick Clark--he was a leftover from the Clinton Admin)
I'm sorry, but I find it incredibly hard to believe that out of all the outstanding judges who were considered, even among those that have already been confirmed by this Senate, he could not find a better pick.
But you don't have access to their entire history nor have you spoken directly to them. Bush and Miers and company have. What makes you so informed on this issue?
You don't pick Supreme Court justices like you pick your friends. You pick someone who will uphold and defend the Constitution of the United States. There is no record of this nominee doing so. Other candidates have extensive records of doing so.
Once again. Miers is emminently qualified. If he didn't know her for 20 years, he would presumably require a lot of background information on her. Since he did, he didn't.
Imagine you are highering a programmer. You interview lots of candidates some seem smart, some *claim* to have good educations, but are they dependable? Could they be snowing you? Will they quit in a month? You don't really know and you have a product line coming out in a very short time and the future of your entire small company depends on its success. Then you realize that your programmer-friend who has been "helping you out" has produced nothing but top quality work for the year he's been working with you. He doesn't have an MIT degree, but you know he's really good, everyone in your company raves about him, and you know personally that he won't let you down. Maybe you wouldn't hire him based on his resume, but you don't need a resume since you've seen HIM work and you've seen HIS work.
Is that cronyism?
You should look at this another way: The President examined ALL the candidates you and I like. He REJECTED them. They all had an element of risk involved regarding their philosophy, how they would rule, or whether they would pass the Senate. Rather than gamble, he went with what he KNEW would be a good choice. That's not cronyism.
It would be cronyism if she were unqualified. But she's not unqualifed. Even Rush says so. Even David Frum says so. She's one of the top 100 lawyers. He wouldn't have thought of her if he didn't know her, but knowing her is what made the choice appealing. It wasn't a gamble. Do you want him gambling on this nomination?
Try exceptional.
but there is little or no evidence she has used them to advance the Conservative cause or that of the Republican Party.
She has been partially to largely responsible for putting before the President every judicial candidate he has nominated over the last 5 years--candidates YOU and I liked very much. How is that not advancing the cause of conservatism?
100/1,000,000 = 1/10,000 = 0.0001 = 0.01 percent
In the top 0.01% of attorneys nationwide, not once but twice!
I wonder if only 10% of those who made the top 100 attorneys list nationwide make a second time.
If so, then we have her in the top 0.001 % of attorneys nationwide. For those of you from Rio Linde that's one one-thousandth of one percent - a pretty small grouping!
And let's not forget, Chief Justice Roberts never made it to "White House Counsel", he stopped at the lowly position of 'assistant WHC'. Yep, that's right - change the timelines by a few years and Roberts would have been a working below/for Ms. Miers. And it was there he did some of his so called 'best work.'
To see how I really feel about Ms. Miers, go to Ms. Miers Goes to Washington or see what Varifrank had to say about public squealing and hysterical carrying on
BTW - I really liked the image of her clearing brush with W. They could have been talking about a few Aunts of mine.
RileyD, nwJ - "Only the humble are sane."
Excellent point. Ex-cel-lent.
She was advancing the goals of her boss.
He will not be there with her in her Chambers on One First Street. It would be comforting to know she has the strength of her CONSERVATIVE convictions while being bombarded with the liberal sensibilities of the Lefty Four.
You're calling the President who put his Presidency on the line to depose Iraq a coward?
You're calling the President who put this nation on the path of a long term war against a fanatical enemy in the far corners of the Earth... when such a maneuver would risk his political future... a coward?
Come again... Tell me how a President who would risk everything to depose a terror-supporting tyrant is too much of a coward to face the Senate?
I think you should analyze the situation from the stand point of the President. What would a fight over a qualified, known conservative have gained us? Especially consider that with the RINOs in the Senate, we would never have won the majority needed for the Constitutional Option.
Nominating a known conservative would be like starting a land war with China. We'd feel awful good about socking it to the Communists, but the people with their hands on the nuclear trigger will balk and we'd be left with warm fuzzy feelings, casualties, and exactly the same situation before the battle.
Reminds me of the European wars... All those battles, all those dead, and the borders almost always ended up exactly where they were before. Useless wars fought because of big egos and too little sense, and no thought for strategy.
Whose goals were apparently to put conservative judges in the courts. Do you think she was tricking him for the last 14 years? That's pretty good camouflage. Do you really believe she thought "Sheesh! What lame-o's! But this is what Bush wants." To give you an idea of how closely Bush's goals meshed with hers, David Frum (no fan of this nominee) says she called Bush "the smartest man she'd ever met." You don't really think she was just being a good soldier do you?
You are totally missing my point and misrepresenting my position. There is little or no proof that she has acting independently to uphold the ideas of the Republican Party or the Conservative movement in a legal setting.
What I might "hope" or "feel" is true about this irrelevant.
You are totally missing my point and misrepresenting my position. There is little or no proof that she has acting independently to uphold the ideas of the Republican Party or the Conservative movement in a legal setting.
What I might "hope" or "feel" is true about this irrelevant.
That would be true if it were YOUR choice. If it were YOUR choice, I would expect you to be very certain that your nominee to the Supreme Court believes in judging and not legislating.
Unless you have a real REASON to doubt that Bush has assured himself in the same way about this candidate, your criticism is uncalled for, worse, it is petty. Bush has vetted this person for almost two decades. She is eminently qualified (don't miss reading posts #38 and #36). If he has not chosen this nominee over all the others (with all the information at his disposal) with good cause, then I don't think we should have trusted him with the Presidency.
This smells to me like a choice made to ENSURE there were no mistakes. He has not let us down on judicial nominees in the past (and neither has Miers). There is NOTHING we know about this candidate to cause us to reasonably, seriously entertain doubts now.
I disagree. You don't have to think she'll be a poor justice in order to completely disagree with the nomination itself. A Supreme Court nomination is one of the key political events of the decade - and how the President chooses to go about selecting a justice is just as important as the actual person they select.
In this case Bush has appeared arrogant and out of touch with his base. To add insult to injury, he suggest that whiny conservatives just "trust" him - where he's done preciously little to earn that trust lately.
And being named in the "top 100" lawyers is some kind of absolute - like the "20 most beautiful people" I suppose? </sarc>
I'm sure some of that "top 100" business is based on lobbying, "who you know", etc - certainly can't be used as one of the main pillars of evidence that she will make a good justice, and even more, that she will be the type of justice George Bush promised when he courted conservative voters.
You are right but we are past the nomination itself right now, it is done. On an earlier thread today I said, "The question now is not whether the he made a wise choice but whether or not SHE is a wise choice."
Well, at this point the hearings will tell people whether the woman can defend herself and think on her feet.
Whatever happens, Republican fund raisers will have their work cut out for them in upcoming months.
The same guy who hasn't been able to summon the courage of his convictions to veto a single spending bill? The same one that handed over billions of our money to Arab terrorists? The same one that covers up for the Clintion administration at every opportunity? The one who falsely claims that Islam is a "religion of peace"? If it's not cowardice, it's something even less virtuous driving that behavior.
What you suggest is like negotiating a peace with the Nazis in April of 1945, and letting them keep Czechoslovakia. The enemy is nearly defeated, all that is needed is the final, decisive blow to end their reign of tyranny... the worst time of all to lose heart.
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