October 18, 2005

Recipe for more Con-dissension

CNN reports this morning that Harriet Miers tripped over her tongue in a conversation with Arlen Specter.

In talking about constitutional law, Specter claims that Miers told him that she believed Griswold v. Connecticut was "rightly decided." Griswold is, as CNN says, "the legal underpinning" for the Roe v. Wade decision. Whoops.

Harriet apparently got on the horn not long after Specter related this tidbit to the press, saying that he had "misunderstood" her. Yeah, that sounds like what a husband tells his wife when he knows his goose is cooked.

This brings to mind another misunderstanding the Post (among others) caught--Miers told Patrick Leahy that her favorite Supreme Court Justice was George W. Bush "Warren." When Leahy asked her if liberal giant Earl Warren was really her most favoritestst Justice, Miers corrected herself, saying that she was talking about Warren Burger, which is just a bad choice instead of a weird one.

Like that "mix-up," this "misunderstanding" on Griswold shows a few really scary things about Miers. Here's what Jim Lindgren of Volokh Conspiracy said about the Warren fuck-up:
Perhaps Miers couldn't think of anyone appropriate off the top of her head and thought that Leahy would like it if she said Earl Warren, but then caught herself when she realized that (rightly or wrongly) he was the poster boy for judicial activism. It would be odd to refer to Chief Justice Burger simply as "Warren." So perhaps the question was too difficult for her to answer without stumbling (of course, we all stumble in answering questions some time).

A second possibility is that she really does admire Earl Warren the most, but was unwilling to admit it to Leahy. That would seem a reasonable choice for a Democratic nominee, but not for a Republican. Further, to try to hide her choice from Leahy would show both cravenness and a lack of candor.

The third possibility is that she genuinely admires Chief Justice Warren Burger more than any other Justice that she could think of. If so, one wonders about the quality of Miers' judgment or whether she has read enough Supreme Court cases to form a reasonable opinion.
So we've either got a person who can't think on the spot and who can't make up her mind or doesn't know her own mind (all great qualities in a judge), someone who doesn't have a basic understanding of Court history, or someone who is more liberal than anyone may think, but is totally controlled by Bush and Co.


1 comment:

  1. Bitter Moderate Conservative9:53 AM

    It sounds to me like Harriet Miers doesn't have constitutional law on the tip of her tongue and is trying to fake it. I'm not sure at this point what I think of that.

    Not being a total expert on every area of law isn't a bar to being a good judge. If you have the intellectual wattage and an understanding of the foundations of the law, you can compensate for immediate lack of expertise with meticulous preparation. You just have to be willing to put in the time and spend hours in the library. The Justices have 4 clerks each to help them with this, and months before the oral arguments to figure out what they need to know.

    I can't tell if the media's criticisms of Harriet Miers are equivalent to requiring her to ace the exam before taking the class, or if they're exposing genuine flaws.

    For what it's worth, Griswold v. Connecticut is one of the worst-written Supreme Court opinion on the books, regardless of the result. Justice Douglas (coincidentally, a Supreme Court mediocrity) wrote the opinion but used horrible reasoning to support it. He basically said that the "penumbras" of parts of the Bill of Rights added up to a zone of privacy which made it unconstitutional for Connecticut to outlaw contraception between married couples. Justice Goldberg, in a separate opinion, noted that the Ninth Amendment would have been a much better basis for a right of marital privacy than things like the prohibition on forced quartering of soldiers or other amendments to deter police misconduct.

    Even so, it's not entirely wacky to say that it was "rightly decided" if you mean that the result was correct. A right to contraception isn't the same thing as a right to abortion (unless you buy into the Monty Python "every sperm is sacred" song).

    Bottom line is that Miers isn't a constitutional theorist or a Supreme Court junkie. I wish she'd stop faking it and explain why that's not important. There's a decent case to be made that a model Supreme Court Justice is a good lawyer who works hard, prepares as necessary for every case, and has the brain power to do the job. This isn't necessarily Harriet Miers, but it would be better to pursue that angle, in my opinion, than to suddenly cast herself as being in the mold of John Roberts or a Harvard law prof.