Asymmetrical Information

But even if you think she'll vote your way on Roe (whichever way that is), you should be awfully leery of having a woman with so little apparent interest in legal theory, and such dreadful writing skills, on the Supreme Court.

Brutual honesty here: If I knew which way she'd vote on Roe, I'd probably just as soon have her on the court. I might not feel too good about such a compromise, but overturning the '73 decision is my biggest political hobby horse. But I don't have any such foreknowledge, so I'm thinking today's a good day for our republic.

"Justices don't just vote "yes" or "no"; they write opinons. And what is said in those opinions often forms the precedent for other cases. Incompetent opinions will leave a legacy that lingers far beyond the next associate justice..."

Um, yeah. Read any SCOTUS opinions lately? However "well-written" they may be, their "overarching legal theory" is generally pretty incoherent. And the fact that most "decisions" these days come in several different flavors (see, e.g., the two recent "Ten Commandments" cases) doesn't help.

Legal opinions aren't an exercise in belle-lettrism: they are supposed to clarify and define the law. In most of the recent decisions on important issues, about the only thing you know for sure is...there will be more litigation.

I would far rather have a clear and definitive opinion written in pedestrian prose, than yet another "complex balancing test" opinion written in flourishes of high rhetoric.

And frankly--to paraphrase Bill Buckley--I would far rather the SCOTUS be composed of nine lawyers whose names were drawn from a hat, than the nine "greatest legal theorists of our generation."

Unfortunately, the founders left too many words in the Constitution that are open to interpretation (e.g. general welfare clause).
So you get justices putting their own ideology in play when determining the "spin" to put on those vague powers granted to the federal government.
Otherwise, you wouldn't see so many 5-4 decisions.
(Ideally, one should see 7-2 decisions but if they were that clear cut, then perhaps the legislators would show some restraint in crafting
bills.)

Question: how does Supreme Court decide
which cases to hear? Does CJ poll the others and
only take those cases that 7 or 8 think need hearing? Can CJ act as gatekeeper to avoid cases which may go 5-4 in decision?

The only reason the general welfare clause has become such a point of debate is because some factions engage in the intellectually dishonest exercise of using it to render the rest of the document, which enumerates specific powers, irrelevant. The theory, if that term is to be abused, is that the writers of the Constitution simply said that Congress may do whatever it deems to promote the general welfare, and then wrote the rest of the document outlining specific powers simply to kill some time while they hung around Philly all summer.

I agree with Meaghan's point that having Justices with excellent, clear, writing and reasoning skills is highly desired in regards to the Supreme Court. I wish that standard had been adhered to with the current lot.

For the lawyers in the audience, can anyone point to an example of a recent (last 25 years) opinion that is considered a great example of clear legal reasoning?

Will Allen:

Unfortunately, the Supreme Court declared a long time ago that the taxing and spending powers may may be used "for the general welfare." We'd have a $700 billion federal government otherwise, not a $2.5 trillion one.

Na na na na Na na na na Hey-ey-ey Good-bye . . .

Classy.

It wasn't the writing skills that appalled me about Harriet Miers, it was the evident lack of thinking that the writing reflected. We don't need another Justice who creates 'three-pronged tests' and attempts to balance five different constituencies on the point of a pencil; Justices should not have constituencies.

My fear with regard to Harriet Miers was not that she'd be a "living, breathing" Constitutionalist, but that she'd be a "living, breathing, constantly mutating, ever growing larger, eating everything in its path" kind of 'Constitutionalist'. It's not the emanations from penumbras that scare me, it's the backscattered radiation from the reactions caused by the penumbraic emanations that leave me reaching for some lead underwear...

Now having said all of that, I cannot help but have pity for her; she was pretty clearly pushed beyond her level of competence and comfort for political reasons, she's been criticized pretty strongly in the press and on the web, and I hope that she's able to slide out of the limelight and back to some professional niche where she can be comfortable and also effective in some role.

Justices don't write opinions; their law clerks write the opinions. (There have been very few exceptions.) The justices edit opinions, or simply make their views known, but justices do not write the opinions.

What I found amazing about Woodward & Bernstein's book The Brethren was not the facts it contained (I was in law school and the facts were not a mystery to me) but that W & B were amazed at the facts they discovered. All they had to do was to ask any competent law professor at any good law school.

"Na na na na
Na na na na
Hey-ey-ey
Good-bye . . ."

Wow. I guess that means you're part of the "Meirs isn't one of us" group. I suspect you don't really feel bad if Mier's has been humiliated. I don't think she has been, but if you want to gloat over that, so be it.

I think all that's been proven is conservative pundits are just as self-aggrandizing as the MSM. I believe many conservative pundits have lost the faith of their readers over this.

I'd also rather have a 'real person' on the court instead of another constitutional scholar.

Bush is a better poker player than pundits as well.

Elitism will take the majority in congress away from the Republican Party and send it back to the wilderness where it belongs if it forgets the people who elected it.

Is there _anyone_ who specifically wanted her confirmed because they thought she'd vote to uphold RvW?
Once more, Jane succumbs to the desire to try to kick liberals in passing. And she probably wonders why her would-be tribute to Rosa Parks turns into an ugly "What the hell is wrong with Black people?" discussion.

Creech, it takes 4 votes to grant a petition for certiori. The CJ does not act as a gatekeeper. Different CJ's set up different internal procedures. I haven't been a court watcher for many years, but the CJ's main power is to assign the writing of the opinion to a specific justice. This applies to both the majority opinion and the minority opinion. Another power of the CJ is to establish the internal procedures. For instance, the CJ can call for a straw vote before any discussion or the CJ can hold off on any straw votes until after discussion. Just as the jury foreman sets the internal rules for jury panel discussions, the CJ sets the rules for court discussions.

I have heard Rhenquist criticized for holding votes before discussions, but it seems to me that it would help streamline the process, albeit at the possible expense of having a more deliberate discussion/voting process. I've run discussions both ways (for committees), and ther is no doubt in my mind that holding an initial vote to see where everyone stands speeds things up no end. On the other hand, it does establish positions in the minds of the committee members early on. So, for some issues I would call for an initial vote, but where I wanted more deliberations and viewpoints aired, I held off on calling for votes until everyone had spoken. There are pros and cons associated with each method. For the Supremes, the decision is up to the CJ.

Classy.

Jane's reaction is a LOT classier than naming your personal lawyer to a lifetime position on the Supreme Court because she tells you you're the coolest, smartest leader ever.

A Miers appointment would have been a slam-dunk win for the Democrats for reasons I don't need to go into. Even so, I find myself on balance relieved she won't be going forth into the Senate. She was clearly unqualified to serve on the Supreme Court, and the country is better off without her taking up space, even if she was not going to be as predictably conservative as whoever her follow-up will be.

Brittain33 writes:
I find myself on balance relieved she won't be going forth into the Senate.

Me, too, and for the simple reason that I strongly feared her performance there would have made Joe Biden look like he actually knows something about the Constitution by comparison...

Once more, Jane succumbs to the desire to try to kick liberals in passing.

You know, I've attacked Jane on that specific charge in the past, and here I think she's justified. I was not the only Democrat who was conflicted about the Miers appointment because while she would not have been a good justice, she had the potential to listen to both sides of the arguments instead of embarking on a 30-year jihad for her pet causes like Janice Rogers Brown or Priscilla Owen would do. It wasn't necessarily Roe that would do it, but the gist is accurate.

Brittain, your position is substantively different from that mentioned by Jane. I thought she was pretty underwhelming but would probably be confirmed (shows how much I know). That she's a little more open minded than the republican base would like wasn't a great consolation or selling point for me.

I think either this was a set up, expected to fail or W is really a cruel bastard to put a close associate thru attacks that were so predictable.

I do tend to think that W himself is not so keen to overturn RvW unless they have a new domestic hobbyhorse to keep the base riled up in a state of constant republican voting indignation. They've been working on the anti-gay angle, but it's yet to pick up that much momentum.

Thank you, Rex, for the info. I suppose the 4 votes to grant certorari is an internal rule of the Court? Makes sense that it be a large minority, but a minority nonetheless so that the erstwhile majority can't just refuse to hear cases that may have merit.

Re general welfare clause: it's in the preamble and again in Art.I, Sec.8 (1). To me it's clear that it is a catch-all that refers to the non-common defense powers that are granted the federal government, not willy-nilly to any congressman's idea of what would benefit the majority of Americans. I guess if the Constitution were actually enforced as written, there wouldn't be one conservative (even R. Paul)
would be happy about it. (Though there would still be pork - e.g. the bridge in Alaska being deemed a "post road" for the 25 inhabitants whe get mail on the island.

Michael, I agree with much of what you wrote. My explanation for the whole affairs stems from the way Bush has built his career on personal connections and being in the right place at the right time. I don't think he has any strong interest in constitutional principles or the Supreme Court, and felt that his good friend Harriet would be as qualified as anyone to join the Court, so wouldn't it be a nice gesture to put her name forward as a pro-life woman to replace Sandra Day O'Connor, and reward her friendship at the same time?

Since he has gotten to the Presidency without showing much intellect or ambition--something few people would deny, because even those who did so for years dropped the facade after the Miers nomination--he's not going to be a good judge of other people's talents beyond their people skills and networking M.B.A ability. Those are useful skills in their place, but not for the Supreme Court, something Bush didn't realize and didn't think was important.

With his base acclaiming him for five years as the fusion of Winston Churchill and Jesus Christ, who can blame him for believing what they've said and judging himself incapable of error? If the people in his inner circle are as smart or smarter than he is, why wouldn't he think them completely qualified?

With his base acclaiming him for five years as the fusion of Winston Churchill and Jesus Christ

Nah, Andrew Sullivan switched teams a couple years ago and took most of the "George Bush is one of the greatest men ever" sentiment with him.

I'm surprised at the negative reaction to Jane's post. What reason was there for wanting Miers on the court? Ok, so maybe you sneer at academic credentials. Maybe you sneer at the idea of having legal theories and articulating them. But shouldn't she, at an absolute minimum, have demonstrated a good grasp of Constitutional and federal legal issues, and shown the ability to form coherent, articulate arguments for her positions on those issues?

A person doesn't have to be a snob to think "being a lawyer from Texas that George Bush likes" isn't enough for a seat on the Court.

Since he has gotten to the Presidency without showing much intellect or ambition

Oh, please. I know you define "intellect" as "the ability to agree with smart people, namely me and my lefty friends" but lack of ambition? How the hell do you get to be President of the frickin' United States without ambition? Just wait for someone to hand you the job? (Note: Commander In Chief is just a TV show, OK? Not real.)

With his base acclaiming him for five years as the fusion of Winston Churchill and Jesus Christ

Make you crazy, doesn't it? ("Can't you idiots see the tail, the cloven hooves, the 666 carved into Chimpy's scalp? Can't you? CAN'T YOU...?!")

Mostly, Bush's supporters just think he's a good man who's a helluva lot better than most of the alternatives. I mean, if you really wanted to beat the guy, why didn't you nominate a decent candidate? Al Gore? John Kerry? Yikes.

Don't blame you for being angry, though. If I were a Democrat, I'd be furious...

Just wait for someone to hand you the job?

It worked for Bush.

But shouldn't she, at an absolute minimum, have demonstrated a good grasp of Constitutional and federal legal issues, and shown the ability to form coherent, articulate arguments for her positions on those issues?

``Justices don't just vote "yes" or "no"; they write opinons.''

No they don't: their law clerks write opinions. The days of Brandeis and Holmes are long gone.

Just wait for someone to hand you the job?

It worked for Bush.

It did? Bush didn't have to get degrees from Yale and Harvard, run for governor of Texas, serve in that office for six years, raise tens of millions of dollars, run for President, and then win?

"But he was the child of a former President!" you wail. "That's the same thing as having the job handed to you!"

Two words: Amy Carter.

The only reason Bush got into Yale was his daddy went there. Bush was a coke-head and an alcoholic until age 40. Some ambition! But I was talking about the Supreme Court.

Err...John,

Perhaps you'd care to enlighten those of us without your super secret decoder ring how it is that he got into the Harvard MBA program? The Bush family doesn't have a Harvard legacy. And before you go on about his father's connections, bear in mind, his father wasn't that big of a deal at the time. He held the same job Ed Gillespie has right now - RNC chair.

Bush was a coke-head and an alcoholic until age 40. Some ambition!

Ray Charles was a pothead and an alcoholic until the day he died. Man, what an apathetic, unambitious loser THAT guy was...

How to get a conservative to argue for drug abuse in two easy steps!

...and the third step is where a Bush-baiter produces a logical fallacy.

I am not a conservative and was not arguing for drug abuse. I was simply pointing out what should be glaringly obvious to anyone who looks at history, which is that substance abuse and ambition are not mutually exclusive. Wall Street, Hollywood, and Washington DC -- it isn't hard to find a drunk or a drug abuser in any of the three locations, and it never has been.

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