*Shiver* Is Miers Worse Than I Thought?

[Annie]

http://volokh.com/archives/archive_2005_10_02-2005_10_08.shtml#1128666588

[Jim Lindgren, October 7, 2005 at 2:29am]
Earl Warren Burger Is Miers' Favorite Justice?--

Orin quotes from the Washington Post on Harriet Miers' favorite Justice:

In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" — which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.

I find this story disturbing on many levels. 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.

Burger was reputed to have done a good job running the federal court system, but is usually viewed as an indifferent or poor justice. I have never met anyone (conservative or liberal) who said that they really admired him, but I expect that many of his former clerks do.

Of the justices whom I have met in my life, the least impressive by far was Burger (the most impressive and most gracious was John Paul Stevens). I once spent a couple hours listening and talking to Burger around a table in the faculty lounge at the University of Virginia, where I was a visiting professor from 1985 to 1987. Burger had an impressive white mane, but struck me as sort of a Ted Baxter character (from the Mary Tyler Moore show). He looked like a Supreme Court Justice sent from central casting, but when he opened his mouth, he came off (to me) as crude and vain. (I expect to get many tributes to Burger's fine qualities in the comments--and I welcome them because they may make me more sanguine about Harriet Miers' judgment.)

Yet on that day in the mid-1980s, Burger spoke at length about an African American woman on the Court staff who had filed a claim of race discrimination against him (or perhaps it was against the Court administration). Burger did not try to conceal his glee that she lost. Why he would even bring it up for discussion was beyond me (it was very odd), and he repeatedly and pointedly called her a "Negro" when that term had become much less commonly used in educated society (though it was sometimes still used in Court opinions).

Second, Burger went on for over a half hour about how embarrassing it was when Justices went to parties in Washington (especially embassy parties) and they did not have chauffeurs, how he was trying to get drivers for Justices, and how much he enjoyed the royal treatment he received when he visited other countries. With great pride, he detailed the lavish welcome that he had received when he visited Canada.

Third, when an Australian judge or professor (also visiting at Virginia) mentioned to Burger that one of the leading judges in Australia would be coming to Washington and asked Burger whether he was scheduled to meet the Australian jurist, Burger replied that he couldn't meet every judge who came to Washington from minor countries. I wasn't the only one who was stunned by this statement.

I can't figure out why Harriet Miers would say that "Warren" was her favorite Justice. It could be that the question was too hard for her at that moment (a simple "brainfreeze"); it could be that her favorite was Earl Warren; or it could be that she really admires Warren Burger more than all the other Justices. In any event, her answer does not instill confidence.

UPDATE: I see that Jason Sorens, from whom Orin got the tip for the Washington Post quote, saw somewhat the same problems as I did with Miers' awkward answer.

2D UPDATE: Over at Bench Memos, Kathryn Lopez has a completely different version of the exchange between Leahy and Miers:

This is what I'm told happened:

"Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren — interrupted by Senator Leahy — Burger for his administrative skills.

Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn't express admiration for his jurisprudence."

 

[Annie]

http://www.opinionjournal.com/best/?id=110007368

Miers Finds Few Buyers
WASHINGTON--When President Bush nominated Harriet Miers on Monday, we saw it as a missed opportunity. It left us underwhelmed, not appalled. But having spent last evening communing here with some 1,000 conservatives at National Review's 50th anniversary dinner, we see a political disaster in the making.

We talked to quite a few people, and we heard not a single kind word about the nomination from anyone who wasn't on the White House staff. A couple of our soundings led us to think that such support as it has received has been more sycophantic than sincere. One putative proponent privately distanced himself* from his public praise of Miers. Another person, whose employer has strongly backed the Miers nomination, told us, "Of course, I disagree wholeheartedly."

The White House seems genuinely befuddled by the intensity of conservative opposition, and especially stung by the harsh words of George Will and Trent Lott. The White House position seems to be that Bush gave the Supreme Court an excellent leader in Chief Justice John Roberts (on this point, of course, we agree wholeheartedly), and that what the president was seeking in his second pick was not someone with "sharp elbows" but a reliable "conservative" vote.

This is similar to the left's description of Clarence Thomas as a mere follower of Antonin Scalia. If the White House adopting this invidious caricature as its ideal, conservatives have every reason to be angry.

Conventional wisdom still has it that Miers is a shoo-in for confirmation. We're not so sure. From what we saw last night, the right is furious at President Bush for appointing someone they see as manifestly underqualified and for ducking a fight with the Democratic left--a fight that, in their view (and ours), would be good for the country, the conservative cause and the Republican Party.

Bush may be getting a fight anyway. And while he can laugh off the Angry Left, which would never support him no matter what he did, the Angry Right is a force he'd be a fool to misunderestimate.

* Our use of the masculine pronoun is gender-neutral and should not be construed to mean that the person in question is male. Nor should this disclaimer be construed to mean that he is female.

 

[dilloduck]

Good articles---judicial activism may very well be at the heart of our social ills INCLUDING CRIME. Can we afford to just take a chance with a nominee who may not be the BEST person for the job and just thank our lucky stars that George likes her and she might be easy to get confirmed? I'm really backing down a little here on my support for her even though my buddy Newt says everything will be fine.

 

[musicman]

Great stuff, Kathianne! I'm changing my sig in you honor.

 

[Annie]

Great stuff, Kathianne! I'm changing my sig in you honor.

Thank you sir. This nomination gives me the willies!

 

[musicman]

Thank you sir. This nomination gives me the willies!

I forget where I read the piece that said, in effect, "Mr. President, we've given you this mandate, and this Congress, with precisely THIS MOMENT in mind. Why are you squandering it?"

This is our opportunity to repair the damage done by decades of liberal tyranny. To quote the Bard, "When comes such another?"

Prresident Bush is proving to be a profound disappointment on many fronts. There's going to be war in the Republican Party.

 

[Annie]

I forget where I read the piece that said, in effect, "Mr. President, we've given you this mandate, and this Congress, with precisely THIS MOMENT in mind. Why are you squandering it?"

This is our opportunity to repair the damage done by decades of liberal tyranny. To quote the Bard, "When comes such another?"

Prresident Bush is proving to be a profound disappointment on many fronts. There's going to be war in the Republican Party.

Could have been Peggy Noonan or George Will, both were very angry. I know many here have been getting angry that I've been upset with GW for quite awhile now. There are reasons to not be in lockstep with any group, but follow your own convictions and speak out-first to the source-when those you 'want to succeed' fail, in your opinion. GW has been failing me for nearly the past year.

His speech yesterday was great, only problem for me is that it should have been delivered at the latest, after taking Falluja.

 

[Nienna]

Hopefully, these comments will not be too technical for anyone, but, here goes...I had really "good vibes" about Roberts, but I have "mixed vibes" about Miers.

I agree that the President seems to be backing down on issues domestically, and has thus been somewhat of a disappointment in his second term, although still far better than his opponent would have been! He can't run again, what does he have to lose? Where's that matza we loved in him last term?