Miers's op-ed

[Scott Gerber]

Three quick reactions:

1.  I don't oppose affirmative action on policy grounds, only on legal
grounds.  Unless I'm missing something, Bush wasn't constrained by eeo and
equal protection laws.

2.  I think you underestimate her service as a managing partner of a major
law firm.

3.  I think you overestimate how difficult it is to be a Supreme Court
justice.  The Court doesn't take many cases, the justices each have a
handful of very bright clerks to help them (many of whom are on this list),
and lawyers submit splendid briefs.  All the justices have to do is pick
which argument they like best and then use someone else's work product to
justify it.  Pretty easy stuff...

Scott


At 04:28 PM 10/5/2005 -0400, isomin at gmu.edu wrote:
>Just a brief observation on Prof. Gerber's op ed:
>
>First, I am somewhat surprised that a leading conservative scholar would
endorse affirmative action in judicial appointments so strongly. While
there may be some value to having 2 women rather than one on the court, I'm
not prepared to sacrifice a lot in terms of other values in order to get to
that point.  In any event, there are numerous conservative and libertarian
women available who are vastly better qualified than Miers, so her
appointment can't be successfully defended on the basis of gender.
>
>Second, I think the op ed answers only the weakest arguments against Miers
(her not being a judge, and her going to a non-elite law school), while
mostly ignoring the much stronger ones: her lack of a clear judicial
philosophy and the mediocrity of her record (relative to other Sup Ct
appointees) in the 35 years since graduating from SMU. 
>
>Prof. Gerber quotes Frankfurter as saying:
>
>"The significance of the greatest among the justices who had such
experience, Holmes and Cardozo, derived not from that judicial experience
but from the fact that they were Holmes and Cardozo. They were thinkers,
and more particularly, legal philosophers."
>
>Is there any evidence that Miers is a "thinker," much less a "legal
philosopher?" If not, this criterion actually counts against her rather
than in her favor.
>
>I certainly do not believe that a Supreme Court justice must have prior
judicial experience, and an elite law school background is in my view only
a minor plus.  Miers' problem, however, is the mediocre nature of the rest
of her qualifications and the near-total absence of any evidence that she
has thought seriously and systematically about the kinds of issues that the
Supreme Court addresses. Finally, I also admit to worrying that there is
far from sufficient proof that she will vote what I see as the right way on
key issues. 
>
>Ilya Somin
>Assistant Professor of Law
>George Mason University School of Law
>3301 Fairfax Dr.
>Arlington, VA 22201
>ph: 703-993-8069
>fax: 703-993-8202
>e-mail: isomin at gmu.edu
>Website: http://mason.gmu.edu/~isomin/
>
>----- Original Message -----
>From: Scott Gerber <s-gerber at onu.edu>
>Date: Wednesday, October 5, 2005 1:54 pm
>Subject: Miers's op-ed
>
>> Dear Colleagues:
>> 
>> I thought the attached op-ed might be of interest to the list.
>> 
>> http://writ.news.findlaw.com/commentary/20051005_gerber.html
>> 
>> Best wishes,
>> 
>> Scott Gerber
>> Law College
>> Ohio Northern University
>> **********
>> Scott Gerber
>> Law College
>> Ohio Northern University
>> Ada, OH 45810
>> 419-772-2219
>> http://www.law.onu.edu/faculty/gerber/
>> 
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**********
Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/