Miers's op-ed

John Fee Feej at lawgate.byu.edu
Wed Oct 5 15:36:06 PDT 2005


As a former clerk for Justice Scalia, I must disagree with Prof.
Gerber's description of how easy it is to do the work of a Supreme Court
Justice, and I am concerned that others may share his view.  Sure, to be
a mediocre Justice, one can simply pick an outcome and rely on clerks to
provide the opinion.  There may be some Justices who have gotten away
with this, but they are not the great ones, and it is certainly not the
kind of expectation we should set for our future Justices.  I, for one,
am grateful to have worked for a Justice who was far smarter than I was
on legal matters, and whose judicial philosophy and knowledge of federal
law was far more developed than that of someone who barely graduated
from law school.  Putting aside ideology (which I also think is
important), having Justices who are exceptionally talented and
knowledgeable in federal law does really make a difference to the
quality of the law.

I am quite disappointed by the Miers pick, not because I think she is
insufficiently conservative (I expect that she will usually vote with
Scalia and Thomas on the hot button issues).  Rather, I am disappointed
because she is so undistinguished.  I fear that her clerks will be
smarter than she is, and that is a recipe for bad law.  All of us,
liberal and conservative, should be concerned about this.

John Fee
Associate Professor
BYU Law School

>>> Scott Gerber <s-gerber at onu.edu> 10/05/05 2:39 PM >>>
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/ 

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