Vetting process on Miers

[isomin at gmu.edu]

I'm skeptical that Bush has over the years discussed the full range of key con law issues with Miers and learned her views on them. Just being vaguely conservative in overall ideology is not necessarily enough. After all, that could be said of Blackmun, Souter, etc. at the time they were nominated.

I don't agree that voting is all that's really important in the job of Supreme Court justice. It also helps to be able to justify your decision in a way that will constrain lower courts and create a persuasive precedent. 

But even with respect to voting, Miers' record raises troubling questions for conservatives and libertarians, as others on this list have detailed. 

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: Bob Sheridan <bobsheridan at earthlink.net>
Date: Friday, October 14, 2005 2:03 am
Subject: Re: Vetting process on Miers

> 
> 
> isomin at gmu.edu wrote:
> 
> "...
> 
> We should not hold Bush's relative ignorance against him; a 
> president should not be expected to be an expert on  con law. We 
> should, however, expect a president lacking such expertise to to 
> recognize this shortcoming and seek appropriate advice from those 
> with greater expertise (to avoid misunderstanding, I emphasize 
> that I don't necessarily mean academics). At least based on Fund's 
> evidence, it would seem that Bush failed to do so here. "
> 
> ***
> 
> I don't quarrel with the point that Bush might've vetted further 
> by consulting experts in Con-Law.  My question is, what would he 
> expect to learn?  Is there a correct way to perform Con-Law at the 
> Supreme Court level?  Wouldn't Bush be entitled to assume that if 
> he nominated a loyal supporter with whom he worked and and knew 
> well as a conservative in politics, religion, and law, a lawyer 
> with some familiarity with the issues that exercise the left and 
> right today, and have for the past thirty plus years, that she'd 
> vote the way he and his supporters think right most of the time?  
> Byron White used to say that it took about five years for a 
> justice to go once around the track.  In five years, why wouldn't 
> an intelligent lawyer learn the ropes?  After all, she's got all 
> these professors to tell her what she should do.  She can read the 
> briefs, pick her outcome, and her reasons, and set them forth.  
> Between what she writes and the editing process, what will emerge 
> is something that looks like the general run of SC opinions.  If 
> she doesn't write like Cardozo, Holmes, Brandeis, or Jackson, so 
> what?  None of the others do either.  All she has to do is vote, 
> not make it look pretty.
> 
> rs
> sfls
> 
> 
> 
> >Well-connected conservative WSJ columnist John Fund recounts the 
> severely flawed vetting process that led to Miers' nomination:
> >
> >http://www.opinionjournal.com/diary/?id=110007398
> >
> >I don't know, obviously, whether Fund's account is accurate. But 
> if it is, I think it severely undermines claims that we should 
> "trust" Bush's judgment on Miers' qualifications and how she will 
> vote, as Miers was not apparently not vetted by anyone with 
> expertise in constitutional law or other major issues the Supreme 
> Court deals with. Instead, the decision was made primarily by Bush 
> and Andrew Card, based on personal acquiantance with Miers.
> >
> >Whatever we might think of Bush's ability to judge character (and 
> given his remarks about the sterling qualities of ex-KGB honcho 
> Vladimir Putin, I wouldn't be too confident even here), he is not 
> an expert on constitutional law and is not qualified to assess 
> Miers' abilities in this area without at least some expert 
> assistance. 
> >
> >We should not hold Bush's relative ignorance against him; a 
> president should not be expected to be an expert on  con law. We 
> should, however, expect a president lacking such expertise to to 
> recognize this shortcoming and seek appropriate advice from those 
> with greater expertise (to avoid misunderstanding, I emphasize 
> that I don't necessarily mean academics). At least based on Fund's 
> evidence, it would seem that Bush failed to do so here. 
> >
> >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/
> >_______________________________________________
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