Debunking certain SCOTUS myths

[onenote]

A lot of posters are crying "lack of judicial experience" and "cronyism" in reference to the Miers nomination. But those arguments will get us exactly nowhere. There is a long history of Supreme Court nominations going to individuals who had no judicial experience and/or were close personal friends/advisors/counsel to the President who nominated them. If Democrats simply cry cronyism and lack of experience they will, deservedly, be skewered for holding a female nominee to a standard that male nominees have not previously been held.

Some examples:

Byron White: nominated by JFK; served as chair of JFK's campaign in Colorado, for which he was rewarded with a job as Deputy Attorney General. A smart guy, who clerked on the Supreme Court, but Miers apparently had a stellar academic record and clerked at the federal level (albeit not on the Supremes).

Arthur Goldberg: nominated by JFK; general counsel to the AFL-CIO; political appointee: appointed Secretary of Labor as reward for union support in election.

Abe Fortas: nominated by LBJ; long time friend of LBJ, dating back to before LBJ was a senator. Represented LBJ in court case that got saved LBJ's narrow primary victory when he first ran for Senate. Was in private practice at time of his nomination.

Hugo Black: nominated by FDR; US Senator, staunch supporter of FDR's new deal programs.

Felix Frankfurter: nominated by FDR; labor law specialist/professor; advisor to FDR on such issues. Teaching at Harvard at time of nomination.

William O Douglas: nominated by FDR; bankruptcy/commercial litigation specialist; political appointee: SEC Commissioner before being nominated to SCOTUS

Lewis Powell: nominated by Nixon; former Richmond School Board member; ABA President; in private practice at time of nomination.

Sure, some of these guys had published articles, etc. Some had litigated before the S Ct. But the main reason most of them got appointed is that they were close to the President that appointed them.


Ms Miers is a blank slate and she should be investigated closely. But simply tossing around the cronyism charge/lack of experience charge is a waste of time.

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[crispini]

1. How about corruption?

There's plenty of that to drag out into the sunlight.

[Arkana]

2. They should both be included, however.

Cronyism got us Brownie, remember?

[still_one]

3. how about this charge then

bush shold not be allowed to have another judicial appointment until we know if he helped out a CIA agent?

[Inland]

4. Yeah. How well did Justice Fortas do, anyway?

[onenote]

7. he was confirmed and sat on the court until the GOP railroaded him out

[Inland]

8. Nope. Wikipedia states:

When Chief Justice Earl Warren announced his retirement in June 1968, Johnson nominated Fortas to replace Warren as Chief Justice. However, Fortas' confirmation by the United States Senate was in trouble. He had accepted $15,000 for speaking engagements at the American University law school. While not illegal, it raised much criticism about the court's insulation from private interests. The nomination set off a four day filibuster led by Republicans and southern Democrats ("Dixiecrats"). A "cloture" motion to end the filibuster failed. At that time, 66 votes were needed to stop debate. The vote was 45-43, with 10 Republicans and 35 Democrats voting for cloture and 24 Republicans and 19 Democrats voting against cloture. The 12 other remaining Democrats were not present. Fortas then withdrew his name from consideration. The next president, Richard Nixon, a Republican, appointed Warren E. Burger as Chief Justice.

[onenote]

18. thanks for playing, but you're wrong

Try the paragraph in Wikipedia before the one you quoted:

"In 1965, Lyndon Johnson, now President, persuaded Supreme Court Associate Justice Arthur Goldberg to resign his seat to become Ambassador to the United Nations. He then appointed his longtime friend, Abe Fortas, to the court. Fortas was initially reluctant to give up his substantial salary, but he eventually accepted. On the Court, Fortas was a reliable liberal, authoring the notable opinion in 1969's Tinker v. Des Moines School District accepting the rights of schoolchildren to wear black armbands to protest the Vietnam War. His effort to overturn public drunkedness laws failed, however, as the Court upheld such laws in 1968's Powell v. Texas."

Fortas was confirmed to be on the court. Three years later, LBJ tried to elevate him to the Chief Justice position. After questions were raised about some financial issues (pretty lame stuff), Fortas withdrew himself from consideration. He remained a Justice however for another year when yet another issue regarding a financial matter was raised and he resigned. In all, he served on the Court for 3 and a half years. You can look it up.

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[Inland]

19. Hm. Looks like Fortas was, then, merely a delayed embarassment

rather tahn an embarassment right out of the gate.

[onenote]

23. or maybe a victim of the GOP?

[Inland]

24. Maybe. All the more reason to cite the Fortas example.

After all, I still don't see the reason to actually appoint whatshername. I see that some justices had other forms of experience and some of those justices were competent.

So? There were former justices that weren't men, either. What does it say about whatshername?

[onenote]

26. Not sure I follow

Both of the women previously named to the court had judicial experience. Opposing Miers for her lack thereof, when males haven't been opposed on those grounds would tee up an argument that would put us on the defensive.

Similarly, while she should be investigated inside and out, the claim that other justices had other forms of experience or were
"competent" doesn't really get anywhere. What evidence can you cite as to her incompetence? She apparently had a stellar academic record, earned an appointment as a clerk for judges at the federal level (not common for women in those days), ran a major law firm, got elected to city council. Does that put her that far below Goldberg or Lewis Powell? Hard to see it.

[Inland]

28. The absence of evidence is not evidence, as Rummy would say.

I can't cite to much about her at all. Take out all the Bush appointed posts and what do you have?

Frankly, if it's hard to see if that puts her far below the other justices in the bottom five percent of qualifications, then all I can say is...it's hard to see anything about her at all.

The fact of the matter is that this is a person known intimately to Bush whose stated objective is to add a vote to the Scalia dissents. Another justice in the vein of Justice Thomas, of whom Molly Ivins said, we could have him resign and give Antonin two votes and save some money.

So the bottom line is, we don't know what the bottom line is about whatshername other than Bush likes her, and Bush has himself shitty, shitty judgment, not only about people but about policies and constitutional law. Not only personal rights, but the power of the congress or states vs. the Commander in Chief.

But if you think that Bush liking her and her having no record, and a resume no less distinguished then the least distinguished, by all means listen to her refuse to answer any questions that might illuminate her beliefs or character during the hearing.

Then at the end, all you'll have is what you started out with:Bush likes her.

[Nicholas D Wolfwood]

5. Thanks for the info.

It especially doesn't help that most of that list is comprised of Dem nominees.

[Jeff In Milwaukee]

6. Seven nominees in the history of the SCOTUS

Good. Fine. That means that 95% of more actually had served as judges -- and considering the Bush Administration's history of appointing incompetent political hacks to positions of authority, the fact that she's never served as a judge before is hardly good news.

[onenote]

9. why do you think those are the only seven.

That's just seven in the last 11 administrations and I haven't even bothered to see if there others during that time.

I suspect as you go back in time you'll see plenty of others...

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[Rowdyboy]

14. Earlier today I heard the figure was 37, or 1 in 4 justices have never

served previously as judges. You're right, we won't make any headway withthis charge, other than to continue tarnishing Bush-which is cool by me but won't stop confirmation.

[Inland]

21. Which is even more disturbing

since the remainder tended to life long politicians, not personal family retainers.

EG, Earl Warren, who had been governor of California.

[tx_dem41]

35. Yep...all those "flawed" opinions that came from the Warren

court...like Brown vs. Topeka BOE and Miranda, were obviously the slip-shod work of a complete incompetent. :eyes:

[Inland]

36. You missed my point.

I have no problem with life long politicians. I think somebody learns a little something dealing with real life problems in the political arena. In other words, one obtains judgment.

But those politicians weren't in politics in the way that a professional aide is. It's just as likely as the judgment of such people consists of "how best to get what Bush wants, in his judgment, accomplished." So when somebody comes to the court with two countervailing interests, for example, the need for secrecy in the war on terror and the right of the public to know, will she think "how do I best accomplish what Bush wants?" because that's what she knows.

[tx_dem41]

37. Did you actually read the list in the OP. William O. Douglas and ..

Hugo Black were "wonderful" political toadies for FDR. They happened to also be wonderful jurists.

[Inland]

40. Sorry, insulting past justices doesn't make whatshername look any better.

Black, twice elected US Senator

Douglas, Yale Law professor, SEC Chairman

I suppose you could call them political toadies, and thereby make everyone else look good by comparison. But what you mean is, FDR wanted them. But even so, whatshername can't come close to these qualifications. Her qualification is that Bush wants her, the end.

I suppose that Bush could appoint a racist and we could bring up Black's KKK affiliations, too, and thereby hope that membership in racist groups proof of quality. And if she owned slaves, we could hope that she is a statesman in the mold of Jefferson and Washington.

[Jeff In Milwaukee]

29. On that point, I agree...

As long as Democrats are in the minority, there's extremely little they can do to stop a nomination -- and unless there's something extraordinary in this judge's past, I wouldn't even recommend filibustering.

That being said, it doesn't mean we don't flog the Bush Administration mercilessly about it's willingness to appoint unqualified incompetents. The last time Bush did it, we lost the city of New Orleans under eight feet of water. What are we going to lose this time?

[Rowdyboy]

31. Exactly....We likely can't stop this nomination, but we can make it look

NASTY.....Lets take all the shine off it!

[wtmusic]

13. exactly -- as if experience means nothing

raising this as an issue will get us exactly...somewhere. She's been a lifelong advocate, and now she must be impartial?

[Dr Fate]

39. But is it worth having-GASSSP- WET POWDER???

I think not!!!

[ayeshahaqqiqa]

10. I'd worry about potential conflict of interest

when cases involving the behavior of those in the WH reach SCOTUS. I'd hope that she'd have the sense to recuse herself, but in this day and age, I don't know that we could count on that.

[renie408]

11. Thank you very much

This is EXACTLY what I was getting ready to ask. I was wondering what qualifications previous non-judge appointees had.

It looks like unless some serious dirt turns up, we are going to be stuck with this one, too.

What sucky luck.

[unblock]

12. the key difference is (and i sense a theme, here) PAPER TRAIL

experience as a judge per se is not, imho, an absolute prerequisite, although lack of judicial experience should be viewed skeptically.

what IS critical, i believe, is that the nominee be a rather known quantity before getting their very powerful, lifetime appointment.

previous judges with minimal or no judicial experience typically had lengthy records of their views and gave congress clear insight into how they view justice and arrive at their decisions.

bush (including poppy's appointment of thomas) instead looks for secrecy. he wants to avoid a paper trail that might include anything that may lead to opposition.

i think it's absolutely ridiculous for the senate to give its advice and consent for ANY nominee that can't provide demonstrable, documented clarity into their thought processes.

judicial experience is merely one way to provide that. a history of lectures, authoring books and articles, speaking tours; previous political experience such as governor or president, etc., are also worthy means of providing such insight.

miers has none of this. she as chosen BECAUSE of the lack or paper trail, not in spite of it.

[renie408]

15. I agree with this

It seems stupid to just accept someone because you don't know anything BAD about them. When the truth is that you don't know ANYTHING about them.

[Name removed]

16. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Inland]

20. And indeed, it's the perfect way to prevent any inquiry.

Remember when the Solicitor General's office had to stand up and opposed releasing Robert's memos?

Well, who's the head of the agency whatshername is working for now?

Bush. Gee, I wonder if he'll oppose the release of memos prepared for him by whatshername as white house counsel?

[onenote]

22. like I said..she needs to be investigated closely

But what experience did Byron White have...campaign chair in Colorado and then appointed Dep Ag -- how does that make him different than Gonzales?

Lewis Powell? Where was his lengthy record. He was in private practice for goodness sake. Arthur GOldberg? Secretary of Labor?

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[renie408]

25. If Johnny jumps off a bridge, that doesn't mean you should try it, too

Ok, so other Presidents have appointed unqualified people before. Does that automatically mean that opposing parties have to rubber stamp appointees if their primary objection is that they are unqualified? Cause that just seems wrong to me.

[onenote]

27. some of those other "unqualified" justices turned out pretty darn well

Douglas. Clark. Goldberg. etc etc etc.

Show me her lack of "qualifications" given that there are no stated qualifications to be a S Ct Justice and given that she apparently had a stellar academic record, clerked for federal judges at a time when few women earned that position, became a top litigator at a firm that had never hired a woman...

So enlighten me...where is her lack of credentials.

I think we need to learn as much about her politics, but attacking her "qualifications" isn't going to get us anywhere.

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[renie408]

30. Are you playing devil's advocate, or do you think she is a good pick?

I have no clue. I am just going based on the fact that I would have a tough time getting the top position in a field where I had no practical experience.


Without the usual paper trail available, how DO we learn about her politics? Except for the obvious fact that she has been advising Bush during the past few years and that she is his pick. During hearings, she is just going to quote Roberts and say nothing.

[onenote]

33. I don't expect a "good" pick from chimpy --

And I don't know enough about Ms Miers to say what kind of justice she'll be in the long run.

I do know that attacking her as an "unqualified incompetent" as some on this board are doing (not you) is bad strategy. She has a resume that is actually pretty accomplished. Her competency or lack thereof is unproven to me, although the fact that she was a "top litigator" at a major law firm in Dallas suggests a fairly high level of competency (as does her getting a federal court clerkship after law school).

I'm not sure I understand your suggestion that she has "no practical experience" in her field. She doesn't have experience as judge or a professor, but neither have a lot of supreme court justices, including some very good ones. She does have a lot of experience as a lawyer, both as a litigator and to a much lesser degree, as a policy advisor. Its not as if she's been baking cookies for most of her 60 or so years.

So, as I said in my original post: investigate the hell out of her. Learn as much as we can about her views. Question her hard. But forget about the cronyism/incompetent/unqualified line of attack, cause its going to go nowhere.

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[Inland]

17. And yet, you miss the entire point of cronyism.

It isn't that these people aren't judges: after all, SEC and DOJ are law enforcments positions, and being a law prof counts for something to.

It's that people like Alberto and whatshername have as their greatest accomplishment some Bush patronage.

Alberto's greatest accomplishment is being a Bush appointee. Whatshername is cited by Bush as being one of the most power woman lawyers around. That's true...she's HIS lawyer, and she's powerful because he's powerful. Alberto has the accomplishment of being the first hispanic AG. That's true...Bush put him there.

And Bush knows that these people don't have any unhappy former clients, because they are him or his people.

In both cases, those qualifications say nothing more than Bush likes them. In both cases, the lack of any accomplishment outside the area of Bush political influence is notable.

[blondeatlast]

32. Hell--we are ALL qualified to be on the SCOTUS.

Any "qualifications" for SCOTUS are protocol, not official, people.

It's why Harry Reid was so careful to use the words "well-qualified" when discussing both Roberts and now Miers. It's as backhanded an endorsement as a person can give.

We need to concentrate on other issues than qualifications.

[onenote]

34. you've disproved the blonde stereotype!

You're exactly right. The qualifications issue is a non-starter. It allows the other side to focus the debate on her record of achievement, starting with her federal court clerkships, her success as an attorney, her city council experience etc. Sure its not as stellar a record as some...for example its not nearly the record compiled by JOhn Roberts. Does that mean Roberts was a good choice? Of course not.

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[Dr Fate]

38. Yes- keep your powder dry for the next one...

...and the next one, and the one after that too.

[Bridget Burke]

41. Does powder stay dry indefinitely in storage?

Down here in humid Houston, everything gets all gummy & stuck together after a while....

[Dr Fate]

42. NO!!! It's a constant battle we wage to "keep our powder dry."

Never forget that!!!