"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Friday, October 07, 2005

Now, I've Really Had It

Per the Washington Post, let's review the following from Harriet Miers:

In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" -- which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.

Oh . . . My . . . Goodness . . . This . . . is . . . terrible . . . Blacking . . . out . . . Choking . . . on . . . own . . . tongue . . .

There is no good way to read this.

A. She isn't sure about the difference between Warren Burger and Earl Warren.
B. She chose either Burger or Warren as her favorite, neither of which would augur particularly well for her judicial philosophy.
C. When trying to say Warren Burger was her favorite, she could only think to refer to him by his first name.
D. She really meant Earl Warren, which would be an utter and complete meltdown. She could have said him simply because he is the most famous modern Justice.
D. Other unflattering possibilities.

I am famous for getting angry about elitism or about labeling ideological enemies as stupid, but listen up, there is qualified and there is not qualified. I don't think Harriet Miers is qualified. She is surely a top litigator, trial advocate, and legal manager. She is not surely anybody's constitutional scholar, Supreme Court advocate, or judge. (HT: Southern Appeal)

Update: Kathryn Lopez at National Review says she has heard another version of this story in which Miers was interrupted while attempting to say Warren . . . Burger for his administrative skills as an answer to which justices she admired. That would be a very strange answer, too, but it's the blogosphere so you can have the two stories so far in front of you. This is hearsay, which may be better or worse than the Washington Post account claiming several sources.


James Elliott said...

Since you're not likely to ever go there, I thought I'd share this tidbit from Salon:

Harriet Miers, constitutional chameleon?
OK, so we take it all back. It turns out that Harriet Miers does have experience in matters of constitutional law: As the Wall Street Journal reports today, she has argued a case involving the rather obscure 12th Amendment to the U.S. Constitution.

Her client: George W. Bush. Her argument: Dick Cheney wasn't really a resident of the state of Texas even if he was really a resident of the state of Texas.

As the Journal says, the 2000 case of Jones v. Bush was mostly lost amid the clamor over a case called Bush v. Gore. But the Jones case could have been just as important for the man who would be president, and Miers was there to help him out.

The 12th Amendment prohibits the Electoral College votes of any one state from going to both a presidential candidate and a vice presidential candidate who come from that state. In the days after the 2000 presidential election, some Texas residents filed a lawsuit in federal court arguing that Texas couldn't cast its Electoral College votes for the Bush-Cheney ticket because both Bush and Cheney were Texas residents. Bush didn't dispute his Texas-ness, but Cheney did -- despite the fact that he had lived and voted and held a driver's license in Texas until just after Bush picked him as his running mate in July 2000.

Miers led the legal team that successfully fought off the lawsuit. There's nothing surprising about that: While Miers doesn't have a national reputation as a litigator on constitutional law issues, she was Bush's personal attorney and apparently well respected in Texas. What is unusual, the Journal notes, is the argument that Miers' legal team made. While conservatives like to say they believe in reading the Constitution strictly, the Miers team had to rely on what it called a "broad and inclusive" reading of the Constitution to ensure that Bush made it to the White House. Miers' co-counsel argued that, whatever the 12th Amendment might have meant when it was adopted in 1804, the provision's meaning had evolved over time. "Differences between the year 1800 and 2000 is more than two centuries, it's light-years," her co-counsel argued, noting the "rapidity with which each of us [has] changed addresses from schools and college to various marriages and jobs."

In any other situation, that sort of argument would elicit groans of protest from Antonin Scalia, who counters talk of a "living Constitution" by insisting that the document is very much dead. But 2000 wasn't like any other situation, and the legal wrangling over the disputed 2000 election wasn't like anything else. At least that's what Republicans on the Supreme Court told us when they suddenly found themselves interested in an expansive reading of the Equal Protection Clause -- and then just as suddenly warned that the decision they were handing down in Bush v. Gore shouldn't be considered precedent for any other case.

-- Tim Grieve

So, it looks like Miers isn't anything remotely like the strict constructionist you'd want. Of course, as Bush v. Gore showed, neither are Thomas and Scalia when the ideological chips are down.

Francis J. Beckwith said...

She was a lawyer with a client. You try your best so that your client may win. If her client was the plaintiff, she would have offered a "strict constructionist" argument. Don't confuse a lawyer's arguments for her client with what she actually believes.

James Elliott said...

You're missing the larger point, Beckwith. Bush v. Gore was, in all ways, a repudiation of strict constructionism. Even Scalia and Thomas had to let go of it to aid their ideological allies. Miers would HARDLY be Bush' lawyer for 20 plus years if they did not share a common ideology, and that ideology is clearly not strict constructionism except when it can be used to repudiate Leftist arguments.

Don't be disengenuous. This "best for the client" line is crap.