Harriet and the Pundits of Doom

Most of the time modern liberals seem to think with their glands, while conservatives think with their brains. Until Harriet Miers, that is. In the last few weeks the roles have suddenly switched, and my favorite pundits are throwing the heaving vapors all over the carpet. 

What's going on? It seems that some people have turned against Harriet Miers before very many facts came out.  Indeed, the biggest complaint on the Right seems to be that we can't read her articles or opinions, so we must assume she is not qualified. If Miers hasn't published, she must perish.

Can we all take a deep breath and calm down? Maybe we can find enough facts to make a reasoned choice.

Here are some.

First, does Harriet Miers have any judicial philosophy at all?  Some commentators suggest that because she has no written philosophy, she can't possibly have any deep and clear judicial convictions.  That strikes me as pure malarkey. In fact, Ms. Miers was in charge of picking Bush's judicial nominations, including Chief Justice John Roberts. How could she do that for five years if she lacks a real understanding of constitutional philosophy? Or did she just pass out the beer and chips? On what basis would such an unflattering assumption be made?

So one source of evidence is Miers'role in judicial selection. On that count, it seems to me, she scores pretty well. The Bush judiciary is exactly the 'deep bench' that Miers' critics like to point to: 'Look at all the great judges Bush could have picked!' Well, it was Miers who helped to build that deep bench.

second source of evidence is Miers' written briefs as an attorney and head of a major law firm.  Legal blogger Beldar has some details about Miers' cases. Here is one for Walt Disney Corporation, which doesn't hire fools for lawyers. That case went into

 " ... a thicket of both constitutional and nonconstitutional issues ... a
complicated mix of factual and legal issues involving both agency and
contract law. Ms. Miers ... took an extraordinary interlocutory appeal,
 and won in the San Antonio Court of Appeals. ... she filed a persuasive brief in the Texas Supreme Court, and then did not have to appear for oral arguments on the merits ... precisely because her brief was so
 persuasive. ... (Now how stupid was that, writing such a good brief?)"

A third source of facts is Miers' education and career. To quote Ann Coulter, one of the problems is that

"The average LSAT score at SMU Law School is 155. The average LSAT at Harvard is 170. ... Whatever else you think of them, the average Harvard Law  School student is very smart."

But here, Ann Coulter is confusing averages with top scores. At the high end, the smartest law students at MSU may be better than average Harvard students, and statistically, some could even be better than Harvard's best.  That might be true for SMU students who were too poor to apply to Harvard, as was Miers, apparently.

As an educator myself, I know too well that higher education is no guarantee of wisdom or even deep knowledge. I'm sorry to say it, but it's true. George Washington and Abraham Lincoln didn't go to top law schools. Quite a few Justices of the Supreme Court didn't, and of course most of the members of the Senate Judiciary Committee didn't either. If people can prove their worth without going to Harvard or Yale, it must be conceivable that Harriet Miers could be qualified for the Supreme Court.


A fourth question is whether Miers' life reflects a consistent philosophy and point of view.  Edmund Burke once wrote that "there is no qualification for government but virtue and wisdom.' [1]  Does Ms. Miers' life, as a mature adult, reflect that kind of virtue and wisdom?  This one gets pretty subjective, but take a look at what we know.  I must say that I like what I see.

Fifth and finally,  we will have the evidence of our own eyes. In the confirmation battle Ms. Miers will be questioned for hours on C—SPAN. All the Judiciary Committee members will want to look good to their most heated supporters. Harriet Miers is going to be put on the spot, politely but very, very thoroughly.

I think she'll  pass with flying colors. But we'll see. Stay tuned. They report, you decide.

1.From Edmund Burke's Reflections on the French Revolution, J.M. Dent & Sons Ltd.

James Lewis is a frequent contributor.

Most of the time modern liberals seem to think with their glands, while conservatives think with their brains. Until Harriet Miers, that is. In the last few weeks the roles have suddenly switched, and my favorite pundits are throwing the heaving vapors all over the carpet. 

What's going on? It seems that some people have turned against Harriet Miers before very many facts came out.  Indeed, the biggest complaint on the Right seems to be that we can't read her articles or opinions, so we must assume she is not qualified. If Miers hasn't published, she must perish.

Can we all take a deep breath and calm down? Maybe we can find enough facts to make a reasoned choice.

Here are some.

First, does Harriet Miers have any judicial philosophy at all?  Some commentators suggest that because she has no written philosophy, she can't possibly have any deep and clear judicial convictions.  That strikes me as pure malarkey. In fact, Ms. Miers was in charge of picking Bush's judicial nominations, including Chief Justice John Roberts. How could she do that for five years if she lacks a real understanding of constitutional philosophy? Or did she just pass out the beer and chips? On what basis would such an unflattering assumption be made?

So one source of evidence is Miers'role in judicial selection. On that count, it seems to me, she scores pretty well. The Bush judiciary is exactly the 'deep bench' that Miers' critics like to point to: 'Look at all the great judges Bush could have picked!' Well, it was Miers who helped to build that deep bench.

second source of evidence is Miers' written briefs as an attorney and head of a major law firm.  Legal blogger Beldar has some details about Miers' cases. Here is one for Walt Disney Corporation, which doesn't hire fools for lawyers. That case went into

 " ... a thicket of both constitutional and nonconstitutional issues ... a
complicated mix of factual and legal issues involving both agency and
contract law. Ms. Miers ... took an extraordinary interlocutory appeal,
 and won in the San Antonio Court of Appeals. ... she filed a persuasive brief in the Texas Supreme Court, and then did not have to appear for oral arguments on the merits ... precisely because her brief was so
 persuasive. ... (Now how stupid was that, writing such a good brief?)"

A third source of facts is Miers' education and career. To quote Ann Coulter, one of the problems is that

"The average LSAT score at SMU Law School is 155. The average LSAT at Harvard is 170. ... Whatever else you think of them, the average Harvard Law  School student is very smart."

But here, Ann Coulter is confusing averages with top scores. At the high end, the smartest law students at MSU may be better than average Harvard students, and statistically, some could even be better than Harvard's best.  That might be true for SMU students who were too poor to apply to Harvard, as was Miers, apparently.

As an educator myself, I know too well that higher education is no guarantee of wisdom or even deep knowledge. I'm sorry to say it, but it's true. George Washington and Abraham Lincoln didn't go to top law schools. Quite a few Justices of the Supreme Court didn't, and of course most of the members of the Senate Judiciary Committee didn't either. If people can prove their worth without going to Harvard or Yale, it must be conceivable that Harriet Miers could be qualified for the Supreme Court.


A fourth question is whether Miers' life reflects a consistent philosophy and point of view.  Edmund Burke once wrote that "there is no qualification for government but virtue and wisdom.' [1]  Does Ms. Miers' life, as a mature adult, reflect that kind of virtue and wisdom?  This one gets pretty subjective, but take a look at what we know.  I must say that I like what I see.

Fifth and finally,  we will have the evidence of our own eyes. In the confirmation battle Ms. Miers will be questioned for hours on C—SPAN. All the Judiciary Committee members will want to look good to their most heated supporters. Harriet Miers is going to be put on the spot, politely but very, very thoroughly.

I think she'll  pass with flying colors. But we'll see. Stay tuned. They report, you decide.

1.From Edmund Burke's Reflections on the French Revolution, J.M. Dent & Sons Ltd.

James Lewis is a frequent contributor.