Tuesday, October 18, 2005

Seven thoughts on the potential Associate Justice

I have not written about the Meirs nomination on my blog because I am genuinely uncertain about how it should come out. Here are seven propositions that suggest where I am on the issue:
1) All of the Eastern elites whining about the pedigree of her education is baloney. Academic pedigree and intellect are not the same thing. Clearly we want someone who can handle the nuances of law - but all that intellect still brought us the Kelo decision. In that case Stevens, J., Kennedy, Souter, Ginsburg, and Breyer (all Harvard) supported trashing the Constitution and , O'Connor, Rehnquist, Scalia Thomas.(some of the non-Harvard people) upheld property rights. In that case pedigree did not count for much. Of the current justices six did Harvard law and one each Yale and Northwestern - one might think that the court could benefit from a bit wider educational mix. There are two PBKs and two Rhodes Scholars in the group - which suggests the kind of company that needs to be kept.
2) Why has the administration claimed so loudly that she is there because she is a good "woman" - I thought this was an administration that was not committed to quotas.
3) I am bothered by her lack of judicial experience although impressed with her business law background. We have had some notable people who did not have prior judicial experience but some of those examples became some of the most political justices on record. On the other hand - some with limited experience have turned out to be great.
4) I am skeptical that a position as a White House Counsel should be a track to the Court - I did not like it when Fortas was nominated for a judicial position and believe that the role as the President's lawyer presents some fundamental conflicts that may not be able to be resolved (even with the assumption that she would recuse herself on matters of the Bush administration where she had a role). Fortas BTW was considered to be chief and dropped from consideration when scandals about "speaking" fees became public.
5) I am bothered by the sanctimony of most members of the Senate Judiciary Committee. The President should have the ability to nominate someone who conforms to his political views - the judgment on qualifications should be on the ability to perform the job not on either left or right litmus tests - but the current odd situation prevents a conservative from offering up someone with a trail that could be audited. Arlen Specter is an embarrassment. The standard that was applied on Breyer and Ginsberg should be followed on all nominees but unfortunately it will not be. If Schumer wants to nominate people for the court he should run for president.
6)I am worried about stealth nominees. Souter is an embarrassment. No one should want someone like him again. But the fractiousness of the current setting in the Senate makes that ever more possible. I think the Senate could sniff out a Bork (who I thought was unsuited for the court) without going to a stealth.
7) I am somewhat indifferent to the nominee's professional record in the Texas bar and other opportunities like "meals on wheels" - she may be a very good person but I am not sure what leadership in the profession or service in community organizations leads you that then qualifies you for the court. Ultimately, the best justices are ones who can think about complex problems and interpret the Constitution's guidelines. They are not legislators (or should not be).

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