October 25, 2005

A WELL-EARNED RETIREMENT (via Robert Schwartz):

What Miers must show (Charles Fried, October 23, 2005, Boston Globe)

OF COURSE, it is not necessary for Supreme Court nominee Harriet Miers to have attended an elite law school to be qualified for a seat on the Supreme Court: Neither John Marshall Harlan nor his grandfather (famous for his eloquent dissent in the separate-but-equal decision) did, and Robert Jackson, perhaps the most elegant writer in the court's history, attended no law school at all.

And it certainly is not necessary that she previously have served as a judge on a lower court. Many of the great justices were new to the bench, starting with John Marshall, through Charles Evans Hughes, Earl Warren, and William Rehnquist.

What is indispensable is that she be able to think lucidly and deeply about legal questions and express her thoughts in clear, pointed, understandable prose. A justice without those capabilities -- however generally intelligent, decent, and hardworking -- risks being a calamity for the court, the law, and the country.


You have to know a lot less about the Court than Mr. Fried does to think a reliable vote with good clerks won't be considered a more than adequate justice by their partisans.

Posted by Orrin Judd at October 25, 2005 12:16 AM
Comments

If that last sentence means what I think it does, I concur. That phrase "express her thoughts in clear, pointed, understandable prose" reminded me of "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

All the good writing in the world won't redeem a bad decision, but it can deceive a lot of people.

Sadly, the courts have become political. How can we stuff that back into the tube?

Posted by: AST at October 25, 2005 12:32 AM

We can't for awhile. Undoing seventy years of a liberal Court will require a long period of fundamentally political reaction.

Posted by: oj at October 25, 2005 12:49 AM

Orrin:
Her reliabilty is yet to be demonstrated. What do we get with an unreliable justice with unreliable clerks? Or a reliable justice with unreliable clerks? Or an unreliable justice with reliable clerks? Just sorting thru the logical possibilities -- you presume she is reliable and her clerks will be also.

Posted by: jd watson [TypeKey Profile Page] at October 25, 2005 5:11 AM

jd:

Yes, that's the point about every potential nominee. W picked the one he trusted.

Posted by: oj at October 25, 2005 7:36 AM

oj -

No, only every stealth nominee. The other side doesn't roll the dice with every nominee, why must we?

Posted by: curt at October 25, 2005 8:51 AM

curt:

Yes, they do. That's why Breyer and Ginsburg have been such disappointments to the Left.

Posted by: oj at October 25, 2005 8:57 AM

They have performed entirely as expected.

Posted by: curt at October 25, 2005 9:02 AM

Curt
My answer is slightly different and more pessimistic than OJ's. Because on the issue of whether we will have a "living" constitution instead of a dead one, conservatives (not Republicans) are in the minority. So for now anyway we will have to settle for stealth.

Posted by: h-man at October 25, 2005 9:03 AM

h:

The Right wants a living constitution until it undoes the damage the Left did--it just wants to be able to pretend to be principled in the process.

Posted by: oj at October 25, 2005 9:06 AM

h --

Alas, to the extent Ms. Meirs appreciates the difference, she appears to be a consistent fan of the "living" constitution - from her Dallas counsel days to her recent meeting with Specter.

Posted by: curt at October 25, 2005 9:22 AM

Everyone favors a living constitution, as long as it lives their way.

Posted by: oj at October 25, 2005 9:29 AM

If you believe Specter (that Meirs supports the right of privacy discovered in Griswold), then you're not going to like her version of the living constitution.

Posted by: curt at October 25, 2005 9:41 AM

Think any Justice is going to overturn Griswold?

Posted by: oj at October 25, 2005 9:55 AM

No one I am aware of wants to overturn the results of Griswold v. Conn., but some deplore how it was reached.

Posted by: Mikey at October 25, 2005 11:00 AM

Griswold was wrongly decided and should be overruled. The dissents were correct.

Posted by: Robert Schwartz at October 25, 2005 12:33 PM
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