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October 03, 2005

More on Miers

Here's part of an excellent post by Moon Over Pittsburgh who's been doing great work on the Miers nomination:

Todd Zywicki reveals the gulf between the right's excoriation of "judicial activism" and its real position: a desire to find and appoint "judicial activists" who lean right. This post in my view is a major faux pas.

Zwycki starts off simply enough: "There are two possible ways to think about appointments, one is to appoint those who will simply 'vote right' on the Court, the other is to be more far-reaching and to try to change the legal culture." Perhaps I need not note that Zwycki's on his way to noting that neither Miers nor Roberts are really change-the-legal-culture types -- Roberts because his jurisprudence is "incrementalist" and Miers because, well, to paraphrase bluntly if accurately, she's just too stupid, and, at 60, too old to learn new tricks. No, I'm serious: here's what he says, after noting in a tone of peculiar condescension the various positions she's held over the years, and how none of them really required the peculiar skills necessarily to be a billious idealogue of Scalia's order:

At the very least, she will have a heck of a lot of learning to do and will be forced, at the age of 60, to think about many, many difficult issues that she has never confronted in her entire life. I suppose it is possible for a 60 year old to start what amounts to a completely new career and learn a completely new set of skills for the first time, but.... She hasn't even been practicing law for many, many years, but rather serving in either policy or administrative roles. At the very least, if she is to ever exercise any intellectual leadership of the there is going to be a substantial learning curve that suggests that it will be several years before she has anything meaningful to say.

If my interpretation is off here, do let me know. But this is almost worse than the "just a secretary" stuff Binky fairly complained of in a prior thread.

Read the whole thing.


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Let's not be so stupid as to fall for such a simple tactic as reverse psycology.

I would just like to note that I pervasively misspelled the professor's name in my post as excerpted above. It's been corrected at MOP, but just for the record, it's Z-Y-W-I-C-K-I, not Zwycki as I unaccountably had it in my original post. It's a little thing, but it bugs me.

I don't think this is off-base. I'm a lawyer and I have lots of views on Constitutional issues, which I can express quite cogently when I'm talking to lay people. But when I talk to real constitutional lawyer I realize that I'm an ignoramus. I haven't done a close reading of the scores of important cases that have been written since I finished law school and I don't have the doctrines and principles at my fingertips. It would take me years to get up to speed.

What non-lawyers don't really understand is that con law is hard. It's a discipline that requires a certain type of analytical mind that has been applied to an extensive body of knowledge for years on end. The newspaper level of discussion of con law bears about as much resemblance to the real thing as the newspaper business page does to a graduate seminar in economics. Miers has never done con law and she's never shown any interest in it. How is she going to learn it, from her clerks? The likelihood is that she's going to be an ineffectual tag-along, like Thomas, which I suppose is the point. That, and she'll be a reliable vote when the appeal of Rove's criminal conviction comes before the Court.

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