Another way to look at Miers's lack of qualifications
It is difficult to explain to non-lawyers the details of the legal world, in part because most people do not have any regular, practical exposure and experience in that world. I have been in that world for over 20 years, and the details often give me a headache. Therefore, in order to explain why Harriet Miers is unqualified to serve on the Supreme Court, I will use an analogy from another professional field with which everybody has had some experience--medicine.
Imagine that you are told by a cardiac surgeon that you need emergency open heart surgery tomorrow. This doctor, a heart specialist, finished his residency one year ago and is undistinguished. At your location there is another doctor, who is highly experienced, utterly brilliant, and recognized as one of the best in the entire world. In other words, he is very "accomplished" while the cardiac surgeon is not. However, the "accomplished" doctor is an obstetrician, not a surgeon. Who would you want to perform your open heart surgery? Would the "accomplishments" of the obstetrician have any bearing on your decision? Of course not. You would choose the cardiac surgery.
That was easy. Let's narrow the analogy. Your choices are between the same cardiac surgery or a world renowned orthopedic surgeon with 20 years experience. I would still go with the cardiac surgeon because he at least has relevant knowledge, skill, and experience in the highly specialized operation that I need. Perhaps the orthopedic surgeon could do the surgery, but, despite all his knowledge, skill, and experience, he would be "learning on the job." I would not like that.
And the major reason that I oppose the Miers nomination is that she does not have the requisite knowledge and experience, meaning she would have to "learn on the job." Just as cardiac surgery is a highly specialized field requiring knowledge, skill and experience in that field, Constitutional analysis is a highly specialized legal field. It is also a field in which Miers has no meaningful experience. I explained this in my very first post about Miers, and many others have explained this fact as well (among them are consevative luminaries such as Bill Kristol and George Will). Miers is indeed a highly accomplished lawyer, but as I have explained, those accomplisments do not qualify her to be on the Supreme Court. And while a surgeon can affect the life of one person at a time, the decisions and opinions the Supreme Court affect every person in this country for potentially generations.
As I have tried to explain before, the Supreme Court does not deal in simple, black-and-white issues. The Supreme Court deals with the most difficult issues in a highly specialized field. Regardless of one's judicial philosophy--original intent, strict constuction, etc.--the Constitution rarely provides easy answers. Regardless of one's judicial philosophy, the determination of Constitutional issues requires interpretation (as opposed to simple application) of the Constitution. Thus, an essential requirement for being on the Supreme Court should be some level of real world experience in such Constitutional analysis.
Miers does not have that experience.
Imagine that you are told by a cardiac surgeon that you need emergency open heart surgery tomorrow. This doctor, a heart specialist, finished his residency one year ago and is undistinguished. At your location there is another doctor, who is highly experienced, utterly brilliant, and recognized as one of the best in the entire world. In other words, he is very "accomplished" while the cardiac surgeon is not. However, the "accomplished" doctor is an obstetrician, not a surgeon. Who would you want to perform your open heart surgery? Would the "accomplishments" of the obstetrician have any bearing on your decision? Of course not. You would choose the cardiac surgery.
That was easy. Let's narrow the analogy. Your choices are between the same cardiac surgery or a world renowned orthopedic surgeon with 20 years experience. I would still go with the cardiac surgeon because he at least has relevant knowledge, skill, and experience in the highly specialized operation that I need. Perhaps the orthopedic surgeon could do the surgery, but, despite all his knowledge, skill, and experience, he would be "learning on the job." I would not like that.
And the major reason that I oppose the Miers nomination is that she does not have the requisite knowledge and experience, meaning she would have to "learn on the job." Just as cardiac surgery is a highly specialized field requiring knowledge, skill and experience in that field, Constitutional analysis is a highly specialized legal field. It is also a field in which Miers has no meaningful experience. I explained this in my very first post about Miers, and many others have explained this fact as well (among them are consevative luminaries such as Bill Kristol and George Will). Miers is indeed a highly accomplished lawyer, but as I have explained, those accomplisments do not qualify her to be on the Supreme Court. And while a surgeon can affect the life of one person at a time, the decisions and opinions the Supreme Court affect every person in this country for potentially generations.
As I have tried to explain before, the Supreme Court does not deal in simple, black-and-white issues. The Supreme Court deals with the most difficult issues in a highly specialized field. Regardless of one's judicial philosophy--original intent, strict constuction, etc.--the Constitution rarely provides easy answers. Regardless of one's judicial philosophy, the determination of Constitutional issues requires interpretation (as opposed to simple application) of the Constitution. Thus, an essential requirement for being on the Supreme Court should be some level of real world experience in such Constitutional analysis.
Miers does not have that experience.
posted by WCharles @ 10/18/2005 01:50:00 PM
5 Comments:
I just read recently that Bush commented that Miers is one of the top 50 lawyers in the US today. I don't know how many lawyers there are, but I'm sure the top 50 is an elite group. I would be thrilled to be considered one of the top 50 of my profession. But, I would be more thrilled if Bush had nominated one of the top 5 lawyers. Maybe Miers is number 49 in that elite group. Who are the others ranked above her? And what are their qualifications.
A view from the right on why Miers is not trusted.
http://info-theory.blogspot.com/2005/10/american-spectator-miers-is-pro-roe.html
" A view from the right on why Miers is not trusted."
An interesting perspective, but the fact is that "established precedent" is the same thing as "established law" in this case. The law established by Roe was not created by a legislature. The decision in Roe was based on Constitutional grounds, meaning it was based on an interpretation of the Constitution made by a court. As such, the law established by Roe was established by precedent. Judicial decisions by the Supreme Court (which are "precedent") are laws to the same extent that acts of Congress are laws. Furthermore, acts of Congress can be "reversed" through the passing of other laws. Consequently, in the context of Roe, "established precedent" is the same as "established law."
And just to make things more complicated, it is not only the legislatures and courts that make law. Being that you are in HR, I'm sure you have to deal with all sorts of regulations from various governmental agencies. Regulations enacted by governmental agencies are enforceable law just like statutes. Despite the fact that an agency's authority to promulgate regulations is granted by a legislature, there is no question that said agency--which is not an elected body--is effectively legislating.
Also, a court overturning "settled law" is not necessarily "legislating from the bench." For the sake of argument, assume for a moment that a state law allowing abortion is "settled law." Should the Supreme Court overturn Roe, that "settled law" would in effect be overturned. Under Deignan's analysis, that would be legislating from the bench, although I think most pro-lifers would not initially see it that way.
There are indeed times when judges can be seen as legislating from the bench (go back and read "Supplanting the legislative process" section of
http://cosmicwheel.blogspot.com/2005/10/some-thoughts-on-role-of-judiciary.html.
However, overturning a law from the bench is not necessarily "legislating from the bench." Moreover, I submit that 1) there are times when a legislature enacts laws that should be overturned, and 2) a court decision is the only effective and timely way to do that. Of course, there are also times when a court can overreach by overturning laws. THERE IS NO SIMPLE FORMULA THAT CAN BE APPLIED.
If the foregoing has induced even a mild case of tired head, consider this analogy. If a large beach is the whole of the complexity of what the Supreme Court deals with, the analysis presented in this comment is but one grain of sand on that beach. And that is why it is so important that any Supreme Court nominee has tangible, meaningful experience in these matters. Miers simply does not.
" I just read recently that Bush commented that Miers is one of the top 50 lawyers in the US today...I would be more thrilled if Bush had nominated one of the top 5 lawyers."
Ah, but even the top 5 lawyers might not have the experience to qualify them to be on the Supreme Court. :-)
I have no question about Miers's skills as a lawyer. The Dallas law firm she headed is an old-line, old-money Dallas firm. It is a big firm that is exceptionally well-connected. One would not rise to the top position in that firm unless she or he were an outstanding lawyer. Trust me, Miers did get that position just because she was a woman and the firm was trying to look good. She earned it. She did a very good job as president of the Texas Bar. Given her success as a litigator and the leadership positions she has held, I can see why she would be considered one of the top lawyers in the country.
And yet I still cannot see how any of her experience qualifies her to be on the Supreme Court.
"Also, a court overturning "settled law" is not necessarily "legislating from the bench." For the sake of argument, assume for a moment that a state law allowing abortion is "settled law." Should the Supreme Court overturn Roe, that "settled law" would in effect be overturned."
But, I believe that blogger was referring to decisions made by the Supreme Court as being settled law. Obviously a federal court can rule a state law as unconstitutional.
What I find interesting is liberals and many conservatives seem to agree, Miers is not the best choice... of course for different reasons.
You're right, you made my head tired. :-) This has been an interesting discussion.
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