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October 27, 2005

Comments

Ross

I saw a very fair, moderate and reasonable critique of the Miers nomination last week. Nothing remarkable about that, except it was by Ann Coulter- http://townhall.com/opinion/column/anncoulter/2005/10/12/171097.html

Kenji

I think the challenges of being a Supreme Court justice are seriously overrated. Most decent students, particularly out of top schools, should be able to write adequate opinions, if they can bus around four smart clerks to do research and first drafts. Miers would have been just fine. You don't need any grand constitutional theory to be able to adjudicate cases effectively---Judges are supposed to rule on cases as they come and make incremental changes; that is what the common law is about. I believe the conservatives really screwed up here for being too greedy (not that I care about their view).

Andrew

I seriously doubt that withdrawing the nomination was Miers' own idea - I think it was a face-saving move, a polite fiction just as much as the idea that the reason for withdrawing was a defense of executive privilege and not the fact that there just weren't enough yes votes in the Senate. Bush staffers got the word from Frist that there weren't enough votes, met together and decided to cut the nomination (or maybe Bush himself decided) and Miers obligingly pretended that it was her idea. Kind of like when Michael Brown "resigned."

Abiola Lapite

"I think the challenges of being a Supreme Court justice are seriously overrated. Most decent students, particularly out of top schools, should be able to write adequate opinions, if they can bus around four smart clerks to do research and first drafts. Miers would have been just fine."

Well, that is certainly an ... ahem ... "interesting" point of view. Pardon my lack of enthusiasm for the prospect of essentially delegating the responsibility of settling difficult constitutional matters to pimply law clerks who get to have some intellectually-challenged, paperweight crony appointee rubber-stamp their drafts.

"Judges are supposed to rule on cases as they come and make incremental changes; that is what the common law is about"

If the founding fathers had wished the United States to be governed by a British-style patchwork of rulings rather than clearly elucidated principles, I doubt they'd have gone to the trouble of writing up a constitution in the first place.

"Bush staffers got the word from Frist that there weren't enough votes, met together and decided to cut the nomination (or maybe Bush himself decided) and Miers obligingly pretended that it was her idea."

I suppose you're right:

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/20/AR2005102001635.html

I guess what it comes down to is that I'm just not inclined to give Bush the benefit of the doubt on such matters: it's hard to credit anyone stupid enough to have picked Miers when so many much stronger candidates were on the table, simply in order to spite the "Washington establishment" of which he is in fact the head.

Won Joon Choe

Kenji,

Let me just say that I disagree with you in toto :)

Sebastian Holsclaw

"Pardon my lack of enthusiasm for the prospect of essentially delegating the responsibility of settling difficult constitutional matters to pimply law clerks who get to have some intellectually-challenged, paperweight crony appointee rubber-stamp their drafts."

I agree with your lack of enthusiasm for it, but if the Supreme Court works like other courts, it would be unshocking to find that law clerks do much of the hard research and writing. Now I'm not sure I would imply that the clerks make the decisions. They are definitely directed in a particular direction by the judge. But I'm not sure I would say that, in practice, the difficult research and writing work is actually done by the judge in many cases. Hopefully the judges guide the clerks with Constitutional theory, but I'm not totally convinced of that. You are correct about how it ought to work, I'm not so sure you are correct about how it actually works.

I agree wholeheartedly with your comment about not bothering with a constitution if you really just want a common law structure.

Kenji

I'm finding it to be interesting that a couple of people have issues with my description of the American judicial system as common law-based by pointing out the significance of the written constitution. Don't you think that the U.S. constitution is so short and open-ended that, in practice, it does not limit judges' ability to behave as common lawyers? The only material difference I see between the U.K. and U.S. judicial systems is that there is judicial review in the United States, which makes American judges far more powerful than their U.S. counterparts. But their legal methods are virtually identical.

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