Category Archives: Law: The Supremes

MAXSPEAK ENDORSES HARRIET MIERS FOR SCOTUS.

I think he’s serious.

Eric Muller engages in a little forensic scholarship, and digs up Harriet Miers’s law review note from 1968.

There just might be a little quote in there to give conservatives heartburn. (Understood in context I think it’s a quite reasonable position consistent with traditional federalism, but it certainly isn’t a quote that screams judicial restraint.)

Justice Roberts Takes Supreme Court Bench:

Roberts wore a plain black robe, without the gold arm stripes that had been used by his predecessor, William H. Rehnquist.

A good start.

I don’t know much about Harriet Miers, but on paper she does not appear to be the most qualified nominee available. I like the idea of someone with political experience, and don’t see the absence of judicial experience as any sort of disqualification. The problem is that the overall c.v. is rather thin compared to, say, a Roberts, a Scalia, a Souter, a Warren, or even a Stewart.

At first sight, her overwhelming qualification appears to be loyalty to Bush, and that, in these times, is no great selling point.

Oddly, the initial conservative reaction is not favorable. [UPDATE: The article at that location has been neutered. ]

The obvious initial issues, post New Orleans, are cronyism and competence, and I expect that these issues will dominate the moderate and liberal reactions in the next few days; the issue may get a lot of additional oxygen if the ABA rating is anything less than its highest endorsement — and it could be.

If the conservatives end up splitting on this nomination, or even just lukewarm, it’s possible that this nomination might fail on a straight vote, without even a filibuster.

Which raises this Machiavellian question: WHAT ARE THEY THINKING?

Basically, there are three completely different possibilities that jump out at me:

The first one is that they are losing their grip over there in the White House, and this is just dumb. Plausible, but even post-Brownie, one must be wary of misunderestimating this crowd’s political sense.

The second one is that they are not losing their grip in the White House, that Ms. Miers has depths which are not immediately obvious, and that they will become manifest in due course. I’ll bet this is the least likely scenario, but it pays to keep an open mind at this early stage.

And the third scenario…well, it looks like this: The White House has hedged its bets. Either it gets its loyalist onto the Supreme Court, which will be handy for all sorts of reasons ranging from Guantanamo onwards. Or it doesn’t. And that’s fine too. The battle over Miers will take months, meaning that the battle over the next really red-meat nominee will take place much closer to the next election. Which is just the time you want to re-ignite the culture wars for maximum electoral effect. Plus the Senate, having rejected one nominee, may have less stomach for a second fight. (Not that this worked for Nixon, of course.)

The other day Eugene Volokh posted a short note referencing a reminiscence about then-Associate Justice Rehnquist:

An Arizona Lawyer’s Reminiscence About Chief Justice Rehnquist: I left the justice at the hotel about 8 that night and picked him up the next morning. He told me how much he enjoyed his walk and that he had three or four beers at one of the “joints.” He said he sat at the bar, talked and told jokes late into the night with a number of the bar’s regulars. Just before he left to return to the hotel, he asked one of his bar mates, Pete, what he did for a living.

Pete told him that he drove a big-rig truck for Pacific International Express. In turn, Pete asked his new buddy “Bill” what he did for a living. Bill said to Pete and his bar gang, “Well, I work in Washington, D.C. I am a member of the U.S. Supreme Court.”

Pete and the gang laughed heartily at Bill’s joke or apparent fantasy, slapped him on the back and offered to buy him one more beer “for the road back to Washington and the Supreme Court.”

There is something cute about this annecdote (and in fact the entire article from which it is from paints an attractive portrait of an unpretentious Associate Justice, one well at odds with the image of the Chief who put those golden Gilbert and Sullivan stripes on his robe).

But there’s also something sad about that story. To me it shows how stratified the US has become or, if you prefer, remains: regular folks just ‘know’ that elites will never mix with them, so they don’t believe it when it happens. And the fact that it happens is so worthy of commentary that it is mentioned in the elite’s obituaries.

There’s more than one bubble in Washington.

The first thing I've learned about proto-Justice Roberts that I think hurts his candidacy — and makes me think he really is outside the mainstream: back when he was a young hot-shot GOP politically appointed government lawyer, Roberts wrote against anti-discrimination law aimed at curbing sex discrimination. But he didn't just oppose these laws on libertarian grounds (which I would consider wrong, but principled) but also asked whether “encouraging homemakers to become lawyers contributes to the common good.” Which is casual sexist pig talk.

Had Roberts written this in the 50s, we could dismiss it as the times. But Roberts wrote this yesterday, in the Reagan administration.

And this is the guy who is slated to replace the first female Justice?

No way this is fatal on its own, more a big scratch than a deep wound (and Sen. Santorum agrees, anyway), but it's the first thing to draw blood.

Source: Guardian via TalkLeft: Roberts to Women: Stay in the Kitchen.