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Well, It's Official or A Minority of One

Bush has now picked Judge Samuel Alito as his new Supreme Court nominee. He's everything the Miers critics could ask for in his formal credentials, a potential fifth Catholic on the Court, and even his nickname (Scalito) provides comfort to the Right. No word on his Federalist Society membership, but I'm sure he's got the membership card, the decoder ring and knows the secret handshake. Certainly I can't find anything he's said that might be considered even moderately critical of the Cult of Madison.

I suppose it's a victory in senses, but it's an abandonment of the field I care about. Sure, we may get to fight over, and probably confirm, another Scalia. Yet the nomination strengthens the sense of the Court as a Clerisy, with the high priests chosen from the same set of cardinals and no room for the laity. I wonder if I'll see even a practitioner, to say nothing of a non-lawyer, nominated in my lifetime.

Update: I realize I'm out of the conservative mainstream on this one, but the treatment of the Miers nomination by movement conservatives leaves me with a particularly bitter heart towards those who are usually my compatriots. The debate became more foul and nasty than necessary, and the double-standards of the critics were breathtaking. The grammar in an ABA in-house editorial wasn't up to the standards of a Supreme Court reporter? Shock and surprise: few things are edited as heavily as judicial opinions. On the other hand, there's barely a blush by Prof. Bainbridge that he got the name of the magazine wrong, shattering his glass house as he was throwing stones. His blog, it appears, should be held to a lesser professional standard than a bar journal.

For the first time in my life, I'm considering sitting out a mid-term election, and the Republicans aren't getting my money this go around. The anti-Miers crowd (and some of the anti-anti-Miers crowd) are crowing about how we should all be united now. Not sure I buy this.

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Ahhh, Tony, can't you just be happy that we have a tried-and-true conservative of unassailable qualifications now nominated for the Court? I thought you were becoming a realist - realistically, this is a better nomination for Bush, the right, and the country. I take your point about nominating a practitioner (although remember that Alito has a lot of practical pre-judicial experience) but there is no evidence that he's been hiding in an ivory tower for the past 15 years (not that Newark is really a place where one would expect to find ivory towers). He is, however, a Federalist in good standing (or so says the AP) and - more importantly - he could be the first Princetonian on the Court since John Marshall Harlan II! Here's hoping that on next Halloween I'll be able to dress up as the ghost of Roe v. Wade . . . This is a good day all around!
Well, let's see: if the thing most important to me was the overturning of Roe v. Wade, John, then yes, I'd be in the cheering section with you. As it is, my longstanding opinion on Roe is that it's a bad decision, but of little practical consequence: overturn it and no state in the Union will ban abortion. On the other hand, I do care about the artificial heirarchy and guild-like structure of the law. I do care about the immediate assumptions made within the law: SMU bad, Yale good; law review good, didn't make it means you're not as good, etc. The nomination could have done something interesting for that. As it is, I may like Scalia, but if what judicial Republicanism has come down to is a blind commitment to heirarchy and membership in FedSoc, color me unimpressed.
Many smarter and more persuasive people have made this point in response to your arguments, Tony, but I guess it bears repeating here. You seem to be think the Right breaks down the nomination of a Supreme Court justice into a neat series of check boxes - is the nominee a Federalist; is the nominee from a "top" law school; is the nominee a judge; etc. - and that the lack of a check in any of those boxes counts someone out. I think it's a mistake to believe that the lack of one check voids the application, but I think it is the lack of ANY check at all that casts it in serious doubt. You don't have to have gone to a "top" law school; many good judges did not go to "top" law schools, but they did have more experience than Miers before taking the bench. You don't have to be in the Federalist Society to be a conservative, but - lacking other indicators - that gives a hint of how you might approach certain important jurisprudential questions. You don't have to be a judge, but you ought to have some way (through publication, reputation, or even meetings with Senators) to demonstrate your keen intellect. It's not that Miers was missing one of these components, it was that she was missing them all. I wanted her to prove her detractors wrong, but she never did, and she certainly didn't seem on the path to demonstrating that she was more than a run-of-the-mill good lawyer. Look, I'm not on Law Review, and I didn't get into Yale. I have nothing against SMU or private practice. With Miers, however, I couldn't have supported her without seeing something to show she was more qualified than my mother, my father, or any number of other intelligent and successful lawyers that I know. I think it was Chuck Schumer who said that he'd be glad to support Miers if she were nominated for a District Court, and he'd probably support her for a Circuit judgeship, as well; the Supreme Court takes a bit more, and she didn't seem to have it. Finally, with regard to Roe v. Wade, I think the difference between us is that you think it's a horrible decision but getting rid of it won't make any practical difference, whereas I think it is a horrible decision and even though getting rid of it won't make any practical difference it doesn't matter because the abortion-on-demand regime is fundamentally offensive. Therefore, getting abortion out of the Constitution is a worthy end in itself.
Whether "many and smarter" people have made that argument, John, it still misses the point. I've never said that I think Miers was brilliant, because I don't have that information. On the other hand, I also haven't said I think she's incompetent. To me, insulting someone based on a lack of evidence is, well, reprehensible. Think I'm overstating the case? Try this:
Victor Fleischer: Now that we've determined that she's a terrible writer, a sloppy thinker, a sycophant and a bad manager ... Am I the only one that's troubled that she's still White House Counsel? (Is she? I assume so.) Professor Bainbridge: Great minds tend to be curious about the great questions of the day. Great minds tend to find a way to express themselves on those questions. Great legal minds tend to write books, law review articles, op-ed pieces, or give speeches. At best, the deafening silence on Harriet Miers part in this regard means that she's an unknown quantity. At worst, it suggests someone who lacks the spark of intellectual curiosity and engagement that is the hallmark of a great mind.
Is that a great mind, or a great academic? There is more in the same vein. I have no problem with the idea that a lack of certain indicia of excellence means one is reluctant to support a nominee. The idea, however, that not being a judge, not going to Yale, and not having published scholarly articles makes you incompetent (or excludes you from being a great mind) is another story entirely. The first argument, and the one you make, permits of the idea that it is wise to remain silent until hearings, and to give the woman a chance to prove herself. The second makes such hearings superfluous, because the judgment has already been made. The attack on the nomination I can abide. The attack on the nominee, however, is dispiriting.
I don't think it's a good idea to have insulted Miers at any point, but if there's evidence that Bush's own people were worried about her performance in the hearings, it seems safe to say that they were worried about her competence in that venue, which nowadays is the gauntlet before taking one's seat. You were very skeptical that anyone on the Senate Judiciary Committee would be able to floor Miers, but that apparently seemed more likely to her handlers. If there was reason to have faith in Miers's abilities, presumably Bush was the one to have it, and he folded on her. (Which I guess shows just how tough-minded the president really is... dissent from liberals, bah; dissent from the base, drop your friend and give them what they want. Reminds me of the end of the first Harry Potter when Neville is congratulated for having the courage to take on his friends.) Despite the current pose of the GOP as being populist in contrast to the Liberal Elite -- a pose that fits particularly well with opposition to judicial activism" -- Republicans who reach the top, especially in academia, are going to be discomforted by the idea of someone who might not hold her own intellectually with Democrats. Conservatives in the legal field, especially, have become too habituated to thinking of all the serious intellectualism on the Court as that of the right to stand for someone they can't equate with Scalia and Thomas, and if Miers's conservatism was chiefly of a consequentialist rather than process type (i.e. she lacked a consistent theory of jurisprudence), then she'd be equated with the liberal enemies and the moderate betrayers. Also, Miers's ability to play appropriately to the crowds in which she ran, as with her support for quotas while at the Texas Bar Association or her remarks in support of reproductive rights when speaking before women, might seem desirably realistic to you but are pretty scary for people who think they'd walk through fire before endorsing affirmative action or abortion access.
For the first time in my life, I'm considering sitting out a mid-term election, and the Republicans aren't getting my money this go around. The anti-Miers crowd (and some of the anti-anti-Miers crowd) are crowing about how we should all be united now. Not sure I buy this. Hmm. Maybe I won't abandon all faith in humanity just yet... ;-)
"no state in the Union will ban abortion." Um, several states have laws banning abortion to take immediate effect upon the overruling of Roe v Wade by the Supreme Court...

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