Miers / White

Mae Kuykendall mae.kuykendall at law.msu.edu
Tue Oct 4 08:40:12 PDT 2005

In thinking about nominations by Texan Presidents that are received with skepticism about merit, I wonder at the woeful neglect of Homer Thornberry.  Doesn't he deserve a mention when we talk about a Texas President who is suffering political troubles and nominates an old friend to the Supreme Court, who then must tolerate a degree of rude treatment from the press (and now blogs)?  There are distinctions and explanations aplenty, but it still has at least a small dollop of historical resonance.   Johnson thought Thornberry would be politically palatable to Southerners as a replacement for Abe Fortas, whom he was attempting to elevate to Chief Justice.  It's my recollection that Thornberry was not treated with much respect as he found himself in the middle of a political miscalculation by Johnson.

Mae Kuykendall

Mae Kuykendall

Mae Kuykendall

>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 10/3/2005 6:51 PM >>>
Wasn't White's nomination in part an example of JFK's insouciance,
similar to his nomination of his patently unqualified brother to be AG,
with regard to appointing whomever he wished to?  (We could also talk
about a number of truly terrible appointments he made to the 5th
Circuit.) Of course RFK turned out, in many ways, to be a great AG, so
there are interesting questions to be raised about what counts as
qualifications for public office.

White was presumably smart and reasonably able, but would anyone,
including his biographer, view his 32-year career as one of great
distinction?  I can recall three great opinions he wrote, all of them
"functionalist," indeed "realist" dissents from formalist decisions by
his colleagues, Chadha, Marathon Oil, and, my own favorite, his angry
and eloquent dissent in NY v. US.  (He was, after all, educated at the
Yale Law School in the '40s.)   Can anyone recall a majority opinion of
any great distinction?  I think he wrote the majority opinion in
Washington v. Davis, surely an important case, but I assume not a great
opinion even if one agrees with the result. 

Does anyone doubt, incidentally, that Bush regards it as a very strong
plus, as he looks into her "heart," that she is apparently a very strong
churchgoer (a Catholic convert to Pentacostal Protestantism,
apparently)?  Apropos the discussion about who has the last word, is it
not clear that this particular president is applying a religious test
for office that would be patently unconstitutional if it were
formalized?  So has George Bush in effect rendered irrelevant Article VI
and the No Test Oath Clause?  (Can anyone imagine Bush appointing anyone
who has no religious affiliation?)  When John Paul Stevens dies, will
anyone suggest that agnostics and athiests are entitled to a

Isn't it (almost) time to stop the pretense that gender has anything to
do with diversity, unless, of course, one believes that there is a
distinctly "feminine" sensibility?  Is there any evidence that Meirs has
been energized by her own experience to oppose discrimination in all of
its forms, or did she learn that the correct solution to discrimination
is "blindness."  Is there any evidence, for example, that she did
anything to promote the hiring of other women at her law firm (or in
other sexist Dallas law firms)?  Is it relevant, incidentally, that she
is unmarried?  This means, among other things, that she has certainly
never faced any standard-model career-family tensions.   

One other question--a serious one--about Meirs.  Is there any evidence
of a single instance in which she actually took a public position about
something important that might have surprised anyone or caused someone
to say "I might not agree with her, but she's certainly being gutsy in
saying or doing X"?  Lewis Powell had demonstrated some degree of
courage in breaking with Richmond racists to support at least some
degree of school desegregation.  What has Meirs ever done to exhibit her
capacity for judgment under pressure?  (As I say, this is a serious
question.  Perhaps others on this list know of some relevant answers.)

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