Supreme Court Nominee Miers

Thu Oct 13 16:13:16 PDT 2005

My favorite such test is where blindfolded wine experts were given a 
sampling of several glasses of wine and asked not the variety or the 
vintage, but simply to state  whether the wine was red or white.  They 
were unable to do so. 

We could wind up with a rose for Chief Justice if we don't watch out...

Mae Kuykendall wrote:

>To address the point made by John Noble that the sequence of elevating Roberts to make room for Miers, despite her manifest gift for administration, seems to indicate that the Chief Justice seat belongs to a member of the white male establishment:  there may be something to, but it's also true that there is no way not to be a little guilty in a selection process of being aware of the person's sex, race, height, and so forth.  There is some evidence that candidates for a job make an impression the moment they walk into a room that determines the outcome.   Bush had to decide whether to give Roberts the nod for Chief Justice, or to hold the job for Harriet Miers.  In the end, if he picked a woman, then he picked a woman.  If he picked a man, then he picked a man.  He would have to know whether he was giving the nod to a man or a woman, and, unless he is unusual, he couldn't entirely get out of his head whether he was giving the job to a man or a woman--that is, to the person who walked into the room wearing a Brooks Brothers suit or to the person who walked into the room in a Talbots skirt.  The only way to filter out such personal reactions and thus emphasize merit alone (or religious affiliation and merit, or religious affiliation, regional origin, and merit, and so forth) is to confine the pick to just one category constructed out of a chosen template intended to emphasize only merit plus other permitted factors like religion and region.  If you want merit alone, the only alternative seems to be to give a nationwide test with blind grading of the candidate best able to write beautiful, stimulating prose conveying the correct answers that mirror Bush's "judicial philosopy" but do not prejudge future cases or comment on past cases that may not be settled precedent.  And then put the FBI on the winner.
>
>Mae Kuykendall
>
>  
>
>>>>JFN <jfnbl at earthlink.com> 10/13/2005 12:52 PM >>>
>>>>        
>>>>
>I think Prof. Barksdale makes a good point. The "seat" is viewed more 
>as a bulwark against the perception of institutional discrimination 
>than as the requisite of political diversity. Thus, the Thomas 
>appointment unarguably served the first purpose while arguably 
>defeating the second.
>
>The Miers nomination reveals the President as a captive of "identity 
>politics." In one Washington Post account, they are defending her as 
>the "best choice' because it had to be a woman, and more prominent 
>conservative women candidates were uninterested in undergoing the 
>flamefest that would follow their nomination. I think this is part of 
>the answer to Prof. Wilson's question -- "Why are so many members of 
>the conservative intelligentsia so upset with the Miers nomination?"
>
> From another perspective, the nomination reveals a more subtle 
>discrimination -- the Chief's "seat" belongs to the white male 
>establishment. If Miers brings anything special to the Court, it is 
>her executive skills. Her reputation in the administration, according 
>to today's Washington Post account, as an honest broker and careful 
>perfectionist, suggests that her appointment to fill the Chief's 
>vacancy, with its added executive and administrative duties, really 
>might have been the "best choice." Instead, they elevated Roberts to 
>make room for Miers. I have no doubt that Roberts can handle the 
>Chief's executive and administrative responsibilities, but there's no 
>reason to think that Miers could not have handled that aspect of the 
>job as well or better than anybody.
>
>John Noble
>
>At 10:53 AM -0500 10/13/05, Barksdale, Yvette wrote:
>  
>
>>Sandy Levinson writes:
>>
>>I think the "Jewish seat," ....., was based more on identity politics .
>>
>>Hi Sandy,
>>
>>Are you sure that the term "identity politics" really captures this 
>>dynamic - because this term suggests that the calculus is simply 
>>catering to interest groups without any other rationale or 
>>justification behind it.
>>
>>Instead, I think that the clamor for group representation on the 
>>Court was inteded as a remedy for the past exclusion of these groups 
>>by 1) initial arbitrary WASPM limitations on the pool of candidates 
>>- and 2) residual  biases in the selection process even when the 
>>arbitrary limitations were formally lifted. (thus even when, Jews, 
>>blacks and women could get actually get into the applicant pool - 
>>there were barriers to their selection). 
>>
>>Thus, the reason for the push for inclusion was not just to have a 
>>rainbow of faces - but to give people who had previously been 
>>excluded a seat at the table, so that these excluded perspectives 
>>would have a voice.  Thurgood Marshall's appointment was a clear 
>>example of this dynamic
>>
>>I do agree that Bush 1  with Thomas played the identity politics 
>>card by deliberately searching out a member of the group with an 
>>extremely nonrepresentive perspective to nullify any impact of the 
>>"black seat"  on Supreme Court decisionmaking.
>>
>>But, I'm not sure the  origin of the "ethnic  or gender seat" was as 
>>simple as "identity politics."
>>
>>yb
>>
>>
>>From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
>>Sent: Wed 10/12/2005 10:54 PM
>>To: Earl Maltz; Zietlow, Rebecca E.
>>Cc: conlawprof at lists.ucla.edu 
>>Subject: RE: Supreme Court Nominee Miers
>>
>>
>>
>> Earl writes:
>>
>>By the way, don't I seem to remember something about a Jewish seat?
>>
>>I think the "Jewish seat," which certainly existed (though,
>>interestingly, no one, I believe, argued that Ginsburg and Breyer were
>>appointed to fill such a seat), was based more on identity politics (as
>>is true of the "Italian seat" now occupied by Scalia or the "female seat
>>pioneered by O'Connor) than a belief that Brandeis et al. would bring a
>>"Jewish perspective" to the Court, etc.  (Did Reagan believe that
>>O'Connor would bring a "female perspective"?  Did she in fact do this?)
>>Perhaps the assumption was that Jews were liberals, as has been true of
>>the Jews appointed to the Court, but I still think it had more to do
>>with identity politics than an otherwise inexplicable desire by
>>Protestant or Catholic presidents to place people with "Jewish values"
>>on the Court.  With Meirs, the rationale seems far less identity
>>politics than putting someone with a presumed set of values, derived
>>    
>>
>>from and explained by (and presumably solidified by) her religious
>  
>
>>identity.  I assume, incidentally, that those Protestants who were
>>reassured by Roberts' strong Catholic identity were quite certain that
>>his Catholicism was quite different from that of Anthony Kennedy or,
>>even more to the point, William J. Brennan.
>>
>>It's also the case, for what it is worth, that none of the "Jewish
>>Justices" has been notably observant.  I believe it is fair to say that
>>all would be more easily classified as "secular Jews" than as
>>significantly observant ones.  And, of course, even if one is more
>>observant than, say, Frankfurter, (e.g., keeping some of the dietary
>>restrictions and attending High Holiday services, as I do), that's still
>>not evidence for the proposition that one is a "believing Jew" in the
>>sense of ascribing to any set of theological postulates (I would
>>certainly describe myself as "secular" in this regard).  I assume that
>>the term "secular Protestant" or "secular Catholic" simply doesn't have
>>the same purchase in our society as that of "secular Jew."  It only
>>underscores that for many (including many Jews), the category "Jew" is
>>more an ethic one, like Scalia's Italianness, than a "religious" one in
>>any very deep sense.
>>
>>sandy
>>_______________________________________________
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>>_______________________________________________
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>>    
>>
>
>_______________________________________________
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>
>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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