Thursday, October 13, 2005

A Lightweight In A Heavyweight Arena

The United States Supreme Court is to judging what the heavyweight class is to boxing. There may be lightweights out there who are great boxers, but they just don't have the size to take on the big guns. Evander Holyfield will never be put in the ring with Oscar De La Jolla. Nothing against Oscar, he's got great experience as a boxer, but he's going to get pummelled with such a mismatch. Likewise, there may be intelligent judges out there who are great on the state courts or even in the appellate courts, but they may not be intellectually heavy enough for the U.S. Supreme Court.

Debating the John Roberts and Harriett Miers nominations for the Supreme Court has begged the ultimate question of what qualifications are required for the high court. Since the Founding Fathers offered no help on the question, everyone has offered their $.02 on the matter depending upon the result they want. According to the Emperor, one need only be his friend, agree with "strict constructionism" (although I bet the Monkey-in-Chief has no idea what that means) and be a Christian to be on the Court. It has nothing to do with having heavyweights on the Court. It has everything to do with finding someone who parrots the Bush Administration party line and emasculates the Constitutional separation of powers and independence of the judiciary. No, I am not jumping to conclusions. Bush's requirement list conspicuously excludes the most critical requirement for the job -- an intellectual heavyweight.

When I was in law school, Constitutional Law undoubtedly was one of the most challenging classes we took. The reason being, of course, is that many opinions were written in the late 1800's and were 50 pages long. Good luck trying to make heads or tails out of that as a first year law student or as a lawyer, for that matter. Even many of the modern opinions offer little clarity for the student, let alone the practitioners and lower courts who must refer to these opinions for guidance, because of result-oriented reasoning or lack of clarity in thought. For fun, try reading one Supreme Court decision here. A Supreme Court judge must read thousands of these opinions and write analyses based upon them. Not anyone can do it.

For the non-lawyers reading this, legal opinions are generally made up of the following four components: facts, issue, reasoning and holding (i.e. conclusion). When a judge makes her decision, she lays out these four factors so that those who read it understand not only what she decided but WHY. It is the why, the reasoning, that forms the crux of stare decisis (precedent that must be followed). And it is the why, the reasoning, that distinguishes a legal scholar from a crony appointment.

I have yet to hear from anyone who supports Miers that she is an intellectual powerhouse. Indeed, the super loonie reich wingers are angry about her nomination because there are judges, whether you agree with them or not, who have proven track records of having the intellectual standards to be in the Ring of 9. Miers may be a fantastic lawyer, but one can only assume that the silence about her intelligence means something. The Texas Lottery Commission does not make you an intellectual heavyweight. Nor does being White House Counsel. Thus, the inquiry has been focused on where she goes to church and whether she opposes abortion.

When the hearings on Miers' nomination get underway, the only thing that matters is what weight class she belongs in. My guess is that she will be a featherweight vying for a place among heavyweights.


At 7:04 AM, October 14, 2005 , Blogger Capt. Fogg said...

Her fulsome praise of Bush is enough to make one question her intelligence, if not her sanity and honesty as well.

At 7:47 AM, October 14, 2005 , Blogger mrsleep said...

II, excellent point. Lightweight/Heavy weight analogy.

Could be applied to our Commander in Chief as well. Kerry as well unfortunately was a lightweight.

I like Roberts.

I'm hoping Miers is pulled an someone of substance is recommended next. We need a true knock down drag out fight in the Senate. We have to flush the process out.

At 2:16 PM, October 14, 2005 , Blogger Stalin the Shark said...

The crucial issue with Miers, from where I stand, is separation of powers. There's a reason why no WH counsel has ever made it on to the Court; it implies too much deference to the executive branch.

I don't think that she'll even make it out of committee. The rumblings from the Senate are very displeased at the moment.

:-), StS

At 4:10 PM, October 14, 2005 , Blogger Intellectual Insurgent said...

If Miers gets pulled, expect to see one of the crazies from the 4th Circuit. Then again, maybe GW will decide to piss off the religious loonies again and nominate Gonzalez.

At 10:57 PM, October 14, 2005 , Blogger Reign of Reason said...

Good points...

I find it fascinating that the conservatives on the court have overturned laws far more often that the 'activist judges' Bush keeps harping about.

I don't have the data reference here tonight, but I believe the conservatives have been 'active' by more than a 2-1 margin as compared to their more liberal colleagues.

Just another point that what Bush and conservatives really want is someone who'll oppose Roe and help put god into government.

At 6:31 PM, October 16, 2005 , Anonymous Anonymous said...

Very good. She's definitely not part of the legal elite that one needs to be in order to be confirmed. SMU law school simply carries no weight, so she has no support network.

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