You nearly made my head explode with stupidity.
Oh, boy, is this wrong! Those Supreme Court Justices work hard! In fact, just last week I saw one of them walking by carrying a big stack of law books, and I said to him, "You're earning your pay today!"
This is especially true if you imagine yourself in the position of the Supreme Court clerk. The clerks are smart, but they are right out of law school, having at most the experience of clerking for a different judge the year before. They require guidance, and when they have a question about something, they need to see that the person in charge is capable of giving a thoughtful answer. Without that, the job would be very frustrating.
When it's obvious to both the underling and the overlord that the underling is much smarter, it is not a good situation. The overlord starts to overcompensate by, say, refusing to change his or her mind. The decisions start to appear arbitrary. The underling wonders what he or she is working so hard for.
I imagine this is not the best way to produce judicial opinion.s
In fact, just last week I saw one of them walking by carrying a big stack of law books, and I said to him, "You're earning your pay today!"
Surprisingly, Justice Thomas didn't try to brain me with one of those big law books in response. I think he was just happy that I didn't call him Blackie this time.
I agree with the quotation, roughly. Read The Bretheren. Also, none of it is rocket science.
Not that surprising, he would be opening himself up to charges of affirmative action braining. And by God, this is a color-blind society.
If you had to allocate an incompetent to either lead FEMA or be on the supreme court I would go with be on the supreme court. Worse comes to worse you just agree with someone else all the time.
And Miers isn't incompetent, just not nearly the best qualified candidate.
And Miers isn't incompetent
I don't think we have enough information to make a decision on this one way or the other.
If you had to allocate an incompetent to either lead FEMA or be on the supreme court
Better solution: Don't appoint the incompetent people to anything. (Unless, of course, God tells you to.)
This seems to be part of the wider campaign to lower the respect for judges.
"They are all activists and pretty much anybody - well, any evangelical, could do the job."
I am pleased to find my comment spreading around the blogosphere. Doubly pleased to have gotten "so many things obviously wrong," when I thought I thought I said very few things, and excited to have caused Michael's head to explode with my stupidity. It's great to have an impact.
The Supreme Court has so many institutional checks in place that it has not fallen into chaos in the many instances when the clerks were smarter than the justices, nor was there any serious problem even when various justices became infirm and perhaps senile in their last years on the bench.
In any event, there's a long distance between bewing the smartest in the room and being able to keep up. I have no doubt that an experienced litigator who rose to run one of Dallas' largest firms, overcoming both a fair amount of sexism in ther early years, has the ability to keep up, to make the decisions, and to guide the clerks and the rest of the staff as needed.
More complete comments appear here (same commenter, different name).
I have no doubt that an experienced litigator who rose to run one of Dallas' largest firms, overcoming both a fair amount of sexism in ther early years, has the ability to keep up
This seems to me to idicate dogged, hard work. Indeed, everything I've read about Harriet Miers indicates that she's a hard worker. Besides that, she's loyal. I have seen no evidence yet of her analytical ability. Further, we don't yet know anything of her temperment, which is anohter important quality in judges.
The Supreme Court has so many institutional checks in place that it has not fallen into chaos in the many instances when the clerks were smarter than the justices
This is a false standard. Not falling into chaose does not equal succeeding. Further, there's a difference between the clerk being a bit smarter and the clerk being significantly smarter.
I have heard this sort of argument before, but usually it's been made to note that it's not necessary for a prospective judge to be an expert in all areas of the law; he or she will have bright young researchers who can, say, explain how file-sharing works, so the judge can make a good decision regarding intellectual property. Or, you need not be the best economist in the world to preside over America's economy, as long as you surround yourself with bright advisors and are willing to listen to them.
But it's important to note that in these sorts of arguments, being 'unqualified' is still counted as strike against the person; it's not a virtue. It would be better, e.g., if the justices knew about the Internet when making decisions about file-sharing, but since they don't/can't, it's okay, we have bright people working for them. It's okay if this guy's legal talent largely consists in writing compelling arguments for a set of core cases, because he will have help with the research.
Here, the argument seems to be that it's a virtue that Miers isn't qualified, and that it's such a virtue that it should qualify her over other candidates who could, say, have a better record of legal scholarship *and* have talented, smart advisors.
Plus, one could have certainly made the argument that the head of FEMA, a politically appointed position, is really not a dangerous situation to appoint a crony because after all, there are thousands of people who have spent their lives working on disaster relief, and surely, the head will listen to their expertise.
Or, the President doesn't need to be that smart cause he'll have all those smart advisors.
Saying that smart law clerks can do the real work is like saying smart graduate students can make an ordinary researcher great. It is simply not true (definitely not for researchers). I would expect that the general direction provided by a judge to be of great importance in shaping the nature of a decision.
The Presidency is an easy job. The best wonks/economists/military commanders, what have you, in the country write the President's briefs and argue their cases. The smartest young insiders serve as aides and do most of the actual speech/policy writing. The Cabinets' opinions which the President reviews are also written by smart folks who know how to present the issues. The President only has to make decisions. He can take as long as he wants, and any serious screwups will be caught by his chief of staff or vice president or cabinet members before they get out of the door.
And really, since when is, "She probably won't do too much damage" a good reason for hiring anyone?
But it's a reason to cheer on a Bush appointment.
And really, since when is, "She probably won't do too much damage" a good reason for hiring anyone?
It would be a good qualification if you were trying to hire a sparring partner.
I, for one, embrace the new senility standard for Supreme Court nominees. I could use a job with life tenure and no heavy lifting.
Majore differences betewen the presidency and the Supreme Court: (1) there's only one president, there are nine justices. The president does a lot of different things, many of which require quick wits (such as meeting with foreign leaders, negotiating with legilsators, deciding how to command the armed forces during naitonal emergencies) and some of which have real deadlines where thinking too long can have serious problems. All the Supreme Court does is decide cases that have been briefed by the best lawyers and decided by lower court judges. there's nothing else to the job. There really aren't any deadliens. It's just not the same thing.
But it's true that presidents don't have to be smart. Obviously, the current President is dumb, this was known before his first election, and it didn't hurt his reelection. I voted for Kerry, and I'm sure he would be doing better, but he didn't seem much smarter.
I don't argue that being unqualified is a virtue. Just that it doesn't matter as much as it would for most other high end jobs. the issue for the Senate isn't whether Miers is the best for the job, but wehther she's likely to be better than the unknown that would be nominated next.
"not falling into chaos" was from Ogged's top post. In truth, I have no idea what it means for a Supreme Court justice to "succeed." My guess is she'll decide the cases in a manner that the lwayers can understand what she's saying. Some of teh acadmeic jsutices can't do that.
By the way, Sandra Day O'Connor had high grades in law school (Miers made law review also), but there was absolutely noting else in her background suggesting she was particularly intelligent.
Tom Hilde's favorite blogger has a piece up on tapped in which he comes out as accepting "lightweights" on the Supreme Court. I'd say more about why he's wrong (it involves what I take to be his major premise) but I thought I'd actually write something original on my own blog for once.
Yes, there is no time pressure to decide Supreme Court cases. For instance, Bush v. Gore never happened.
the issue for the Senate isn't whether Miers is the best for the job, but wehther she's likely to be better than the unknown that would be nominated next.
Those are the choices - accept this one or the next (unknown) one? What if Bush nominates, I dunno, someone from China next because they can do the job cheaper?
Hey, since your premise is that being a Supreme court judge is easy maybe that is what we should do. Why waste the taxpayers money?
arthur, if we have an idiot as a president, we can vote him out after four years (or try to) and have the next guy mop up the damage.
The Justice appointment is for life and sets precedent for future rulings; if someone is going to make a ruling that I disagree with, I want them to explain damn well why. And that answer better not be "well, my law clerks thought so and the President who nominated me needs these powers."
But we have no reason now, none, to believe she is at all qualified and the potential for damage is much greater than you seem to be acknowledging.
(How do law clerks get picked, btw? Does the Justice have any say?)
The "stupid boss, smart workers" dynamic is laid out nicely in the Price of Loyalty.
The Whitehouse and the Supreme Court are no different than any other workplace. Inevitably, when the underlings learn they can sneak their own agendas past the head cheese, everything is subordinated to a bullshit power struggle among courtiers.
The Justice has 100% of the say, except insofar as they defer to their current clerks to filter the applications down.
In truth, I have no idea what it means for a Supreme Court justice to "succeed." My guess is she'll decide the cases in a manner that the lwayers can understand what she's saying. Some of teh acadmeic jsutices can't do that.
I had only a vague notion when I wroe it, but I don't think it's so mysterious. The justice should first of all, as you say, make sense. More, a successful justice would be one who could perceive the issue as well as or better than anyone else, and exlpain that perspective thereby doing something to clarify the issue. Or maybe phrasing this in the negative will help: if a justice writes opinions, and I read them thinking to myself, "man, this justice really didn't consider this or that," that is likely a case of the justice not succeeding.
Re: 30.
Yes, although I've heard that sometimes they defer to other justices. I know of one guy who was all set to clerk for Kennedy on the 9th Circuit. Kennedy found him a clerkship with another Judge and promised him a Supreme Court clerkship for the next year, but then Kennedy agreed to have Scalia look over all of his clerk candidates...
30: Okay, so we're hoping that an underqualified justice will have the knowledge to pick good clerks that will advise her honestly and correctly? Okay...
I would think a rough list of qualifications would include: evidence of legal familiarity with constitutional issues. You could get that experience in lots of ways: teaching, arguing cases before the SC, having been a federal judge. Intelligence, of which a top-flight law school degree is not the only measure but not a wholly irrelevant one, because you are going to need the ability to understand fine, nuanced distinctions. Ability to write clearly; this is less important than the ability to think clearly because God invented editors.
I disagree with much of Roberts' politics, but I can't deny his qualifications. Miers might turn out to be a stealth liberal, but good lord, this is just not the place for crony picks.
28: Bush v Gore is the exception that demonstrates the rule. It was decided in a rush, and it doesn't make any sense. On the other hand, even the really smart justices couldn't get it to make sense, so would Miers have been any worse?
Also, those kind of rush cases come along maybe once a generation at the Supreme Court. It's a small piece of the picture.
31: not much disagreement. Since I'm a practicing lawyer, I'll add that a successful decision tells lawyers what to do in similar cases affected by the ruling. Too many recent decisions in my area (securities fraud) fail this point. .
While I wouldn't make as strong a claim as Arthur, I do think people are overstating the importance of intelligence to sitting on the Court. Quick -
1. Name the smartest Justices in the last 100 years, and provide evidence;
2. Name the best Justices in the last 100 years, and provide evidence;
3. Name the most important decisions in the last 100 years, and provide evidence;
4. Show the 1-1 map between all pairs of 1-3.
As ogged previously argued about the real word generally, academic intelligence (or even intelligence as measured by tests) is only one skill of many needed for success, and is often not the most important one. (I wish it were otherwise.)
I think there's some wishful thinking along the lines of,
1. intelligence + life tenure + high stakes = something approximating intellectual integrity;
2. people with intellectual integrity couldn't overturn the civil rights revolution or the New Deal.
Also, SCMT makes a good point in 35. You could make a case that the really smart justices' major contributions have probably been in stinging dissents -- Scalia in Hamdi and Holmes in Lochner come to mind. And Frankfurter's main contribution to U.S. legal history may have been his insistence that Brown be reargued -- during the meantime, Vinson died and Warren was appointed.
SCMT,
Most people refered to a more vague 'qualified' rather than 'intelligent.'
If we have officially switched from a meritocracy to cronyism we are in for a world of hurt. I don't care if the job is easy. I don't even care much if the job is important. Once we switch to cronyism-mode we lose upward mobility and we will eventually be overcome by some other society that rewards merit.
SCMT, what's step three doing there, isn't it quite likely that really smart and great justices x, y, and z just weren't on the court or didn't have the opinion assigned to them for many important decisions?
I absolutely believe "qualified" is a necessity. I am less sure what people mean by that. I'm unwilling to go look at the Constitution, but I think it requires that she be alive and not much else. All other requirements are imposed by the President and the Senate in confirming her. At a minimum, I hope that the Senators use the hearings to determine whether or not she is alive.
Yeah, if the President and Senate agreed it turns out that you could appoint a non-U.S. citizen without any legal training.
Would it fly, do you think, if he'd nominated her for the Federal Reserve Board? Or, let's say, if he'd nominated someone who was his personal accountant and is now on the WH staff for the Fed?
Selectively and unfairly quoting from Jeffrey Rosen's article in TNR:
[Mier's] obsessive focus on details and process made it hard for her to see the forest for the trees or to engage the large policy questions. "She failed in Card's office for two reasons," a former White House official told Goldman. "First, because she can't make a decision, and second, because she can't delegate, she can't let anything go."[...]
There is another model that Miers might follow: that of detail-oriented justices who are so intellectually insecure that they are pushed into ideological extremism by their law clerks. Here, the cautionary tale is Blackmun, who...spent time correcting his clerk's typos and fussing over the factual details of cases while delegating much of the legal analysis and drafting of opinions to his clerks.
And this:
Among the Supreme Court nominees without judicial experience, the least successful were those chosen primarily because they were presidential cronies. Here, the closest historical analogue to Harriet Miers may be Tom Clark, who served unsuccessfully on the Court from 1949 to 1967...Truman appointed Clark to be attorney general in 1945 and then promoted him to the Court. Clark was too intellectually insecure to leave much of a mark... Truman later recanted his choice, saying of Clark: "It isn't so much that he's a bad man. It's just that he's such a dumb son of a bitch."
Well, then I'm gonna slippery slope this argument.
Since the job is easy and doesn't really matter then why not outsource it to China? I mean there have to be some Evangelical Christians in China, right? At least undercover?
Or, wait for it, what about not-Jenna? She's probably looking for something to do right about now. Something easy.
Re 38: I think you could probably say the same thing about #2, as I'd think #2 and #3 are ultimately the easiest to connect. Your comment also suggests that, perhaps, the most important skill a Justice can have is to be able to suck up to the Chief Justice.
focus on details and process made it hard for her to see the forest for the trees or to engage the large policy questions
As far as I can tell, this is exactly the jurisprudence that Chief Justice Roberts promised.
Or, let's say, if he'd nominated someone who was his personal accountant and is now on the WH staff for the Fed?
Looking into your crystal ball?
Let's consider this another way. To heck with the rights of the President and the Senate, what do I want (keeping in mind that this is a thought experiment with absolutely no relevance)? I want justices who are terrific at analysis and considering all the options. I want them to be as informed as humanly possible, meaning that they're avid readers with terrific memories. Finally, I want a compassionate understanding of fellow humans. (i.e. not the jugemental sort who'd brain a fellow for asking a cliched question about earning one's wages.)
So, 1,2, and 3, and I think there's a relation with intelligence on all 3 of those points. That relationship would be quite a thing to elaborate on, at least with regards to the third. (Roughly, I think compassion requires understanding and the intellectual self-discipline to not be sentitious.)
Why do I want those kinds of justices? I think I would trust those sorts of people to judge well, and in certain cases I think they'd go along with my own values (I'd like to see greater personal autonomy), or at least explain to me convingly that there are objections I hadn't considered.
Me, I'm looking for wisdom. But you don't really hear that word very much anymore.
Don't see much of it neither.
45: Well, yes. I agree with Michael. I think the problem with most people who are unhappy with Bush generally is, we're too tired to be specifically unhappy about Miers. She's not sufficiently outrageous.
Re 45:
I don't think that people like that make it in the legal profession, at least not at the elite levels.
I have heard this sort of argument before
Yeah, The Economist made it in favor of one George W. Bush against one Albert A. Gore Jr. Their reasoning was that dumb leaders surround themselves with smart underlings and rely on them to catch their errors, while smart leaders never listen to anybody, thinking they know it all. I'm paraphrasing here.
Speaking of Bartley, does anyone remember a reported incident where, on some talk show I think, he was bashing Clinton (early on in his Presidency), someone said to him, "Sometimes it sounds as though you don't think Clinton is legitimate," and Bartley responded, "He didn't win a majority"? This was, I think, the first sign of the downfall of the country. But I couldn't Google it last time I tried. (Next time I try I'm sure I'll turn up this comment.)
Based on Arthur's post here, I had an idea. Why not work Supreme Court nominations into the Megabucks lottery, giving the big winners the option of going on to the Supreme Court instead of collecting $24 million or so. By this methof we could also figure out how much being a justice is worth to people, since if the $24 mil guy refuses it, we could move on down to the $10 mil guy, the $2 mil guy, and so on.
My guess is that a supreme court appointment will go at more than $500 k but less than $3 mil.
Or else a mega-reality-TV contest, involving a talent competition, a grossout competition, and a sexual-performance competition all put together.
We seriously will have a reality TV show for judicial appointments within the next five years. And it won't just be the "follow around the judicial appointees" kind. They will all live in a grand house and compete against each other.
That's already how academic hires are done in the UK.
Personally, I think that sitting Justices should have to requalify by eating bugs, etc., just like everyone else.
Ok, this is terrifying, from The Note:
According to "several people with knowledge of the exchange," when Harriet Miers met with Sen. Pat Leahy (D-VT) on Wednesday, the Ranking Democrat on the Senate Judiciary Committee 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."
We remain perplexed by this tale, but if we were in charge of preparing for the Miers murder boards, we would take stock.
Warren?? She didn't mean Earl Warren, but instead she meant Warren Burger, who she referred to as "Warren"?
This woman is making it up, I swear to god.
Maybe she's a vegan and can't make herself say "Burger?"
Man that's weird. Wasn't there just a story about someone saying something to Leahy that turned out to be mostly not true (please, someone tell me what I'm talking about -- I can't recover any of the details)? Is it possible he has an unreliable aide who leaks weird stuff?
Are you thinking about the thing where Roberts supposedly said (in the same kind of meeting) that he'd recuse himself if he had to rule against his religion? I didn't catch the mostly not true part, but didn't hear any followup.
That was it. Didn't it get retracted/denied/no one was willing to stand up and say it had actually happened?
Althouse says it was misreported, though she seems not to have heard of the NYT Autolink Generator so I can't check her link. The first comment on that post demonstrates that it's not only great artists who are right-wing. Ugh.
The DNC's web site has links to editorials remarking on how unqualified Miers is. I'm wondering how Harry Reid feels about that.