SLevinson at law.utexas.edu
Sat Oct 8 10:44:15 PDT 2005
>From today's NYTimes
Jim Dyke, a former spokesman for the Republican National Committee who
has joined the White House to help confirm Ms. Miers, said in an
interview she was being seriously underestimated.
"President of the Texas bar association, president of the Dallas Bar
Association, head of a major law firm, those are impressive credentials
and they are being summarily dismissed," Mr. Dyke said. Asked about Mr.
Specter's remark, Mr. Dyke said that as White House counsel, Ms. Miers
already had "a mastery of the Constitution and constitutional law," and
said she needed to do nothing more than any other nominee to prepare. He
added, "There seem to be some unfair assumptions being made."
Could anyone seriously believe that Ms. Meirs service (for 11 months) as
White House counsel, has given her "a mastery of the Constitution and
constitutional law"? Does anyone seriously believe, by the way, that
Mr. Dyke has the slightest capacity to identify anyone with "a mastery
of the Constitution and constitutional law"? Ditto, for that matter,
with George W. Bush and Karl Rove. One can certainly argue, as I myself
have, that a "mastery of the Constitution and constitutional law" isn't
required to be on the Supreme Court, that a mastery of Erisa or national
security statutes might be just as important. But, note well, that
isn't the ground that the Administration seems to be taking. Wouldn't
they be better off to say that she brings a knowledge of areas of the
law that are "underreperesented" on the current court (though, of
course, John Roberts is also a high-flying corporate lawyer, so how many
representatives does corporate capitalism need)?
Can anyone seriously believe that being president of local and state bar
associations counts as "impressive credentials" with regard to becoming
one of nine lifetime members of the US Supreme Court? (Quick: How many
of you can name the president of your home-town and state bar
associations. For that matter, how many of you can name the current
president of the ABA (I can't) Is this relevant? I'm not sure. There
was Lewis Powell, after all, who was at least as good (putting some of
his actual votes to one side) as the median justice.)
Note that I am not (quite) asking the same question about being the head
of a major law firm, though one would like to know how much of this
involved management and how much involved cutting-edge legal work. I
would also like to have at least one illustration of some genuine wisdom
that Ms. Meirs demonstrated with regard to any matter of public concern.
I don't count advocating services for the indigent as "wisdom"; I count
it as a bare minimum that any self-respecting lawyer should support. In
any event, will we, should we, tolerate the invocation of executive
privilege if anyone asks if she vetted the Bybee-Yoo torture memo?
I must say that this nomination seems more surreal as each day goes by.
I'm beginning to think that she has been set up as a sacrificial lamb so
that Bush can nominate Edith Jones and say to those moderates and
liberals bemoaning Meirs (irrelevant) lack of judicial experience, "you
want judicial experience, you've got judicial experience." Or maybe
he's planning to nominate George P. Bush, a recent graduate of the UT
Law School (and federal court clerk) who probably does in fact know more
constitutional law than does Ms. Meirs (for what that's worth) :) But
it is hard to believe that the nomination represents a well-thought-out
decision, unless they really believed that the Republicans in the Senate
are sufficiently docile to confirm Caligula's horse and that the only
worry was a Democratic filibuster, guaranteed to be non-existent given
Reid's quasi-endorsement of the nomination in his conversation with
Bush. (I.e., as with Roberts, he could ultimately vote against her, but
it would certainly be awkward to declare her an "unacceptable" appointee
given his prior warm words for her.)
In any event, this should be easily as entertaining as the World Series.
(My commisserations to Rick Duncan, incidentally, though surely
Christian charity should extend to the White Sox fans, who have an even
longer record of post-season futility than the Bosox fans! In any
event, I trust that both of us are avidly rooting for the Angels over
the Yankees. Any replies to this last paragraph should, I assume be off
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