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Tuesday, October 04, 2005

Some questions about the Miers nomination for my blogospheric friend Professor Bainbridge

Admit it, Professor B! The real reason you're against the Miers nomination is that when she was in law school, she was one of those infernal student articles editors, isn't it?!?

But seriously, good sir: Are you familiar, at least by reputation, with Prof. Alan R. Bromberg of the Southern Methodist University School of Law? I believe he's the co-author — along with Prof. Larry E. Ribstein at the University of Illinois College of Law (who also blogs, and about whom I've frequently seen you blog, and with whom I've even traded a few blogging comments myself) — of several scholarly treatises on partnerships and related business associations.

When I was in law school writing my humble student Note for the Texas Law Review in the fall of 1978, Prof. Bromberg — even though he was from the faculty of a competing cross-state law school, and knew me not from Adam — very graciously reviewed and commented in detail on my manuscript. I'd sought him out because I was writing on how the version of the Uniform Partnership Act that had been enacted in Texas interacted with the state's community property laws. And as I recall, Prof. Bromberg, in conjunction with a standing committee of the Dallas Bar Association, had drafted custom-tailored add-on sections to supplement the model act, along with special explanatory comments that the Legislature included when it passed the UPA. He was more or less the "horse" from whose mouth I badly needed some key information regarding legislative intent (really, his intent, for he'd been scribe to and the intellect behind the Legislature's actions). I recall that he even shared with me some of his original notes from the committee's working papers. I was pleased to give him a special and well-deserved credit when my Note was eventually published.

Now what does any of that have to do with Ms. Miers' nomination to the SCOTUS? Perhaps very little. Ms. Miers was, of course, the President of the Dallas Bar Association a few years later, in 1985. And I mention my personal experience with Prof. Bromberg, SMU Law, and through them the Dallas Bar Association committee in part as an example of the kind of dedicated service to the public and the legal profession of Texas for which they've always been noted. No one should be under the illusion that the Dallas Bar Association is some sort of social club or résumé-credit printing press. And neither, as NRO's esteemed Ramesh Ponnuru has mistakenly assumed, are "the kind of people who spend a lot of time on Bar association stuff ... less likely to be conservative," because at least with respect to the Dallas Bar Association and the State Bar of Texas, they are both genuine service organizations that embrace and include all sorts of lawyers, and they therefore stay carefully apolitical.

In fact, my understanding from friends and former colleagues who practice in Dallas is that Ms. Miers was an exceptional president, even for an exceptional local bar association. The physical evidence of her contributions literally persists to this day, as for example with her leadership in the Association's remodeling of the historic Belo Mansion (locally famous much earlier in its history as having been the funeral parlor in which gangster Clyde Barrow's bullet-riddled corpse was exhibited to the morbidly curious public; sorry, but I had to work that in for the Google searchers someday). But Ms. Miers' intangible contributions to and leadership in the Dallas Bar Association also had long-lasting effects, and led logically in turn to her service as president of the State Bar of Texas (about which I've written here).

That in turn led to her valiant efforts to return the American Bar Association to its original apolitical status as a genuine professional organization rather than a politicized special interest advocacy group: She argued that the ABA had no business taking positions on substantive legal and moral matters like abortion, for example (which the ABA has famously endorsed and promoted, to the discomfort even of some pro-abortion rights lawyers).

And that in turn set me to wondering: Would you agree that Ms. Miers' credentials of service to and through these bar organizations cut in a positive direction? Would you further agree that, as with Justice Lewis F. Powell, Jr.'s presidency of the ABA, Ms. Miers' bar association credentials and history are relevant to her confirmation? Would you agree that taking on the interests that prompted the ABA to endorse abortion rights in the first place was a significant display of both principle and courage on her part? (I assume you're familiar with the special venom saved by the Left for prominent women who are anything less than 100 percent gung-ho in favor of abortion rights, yes?) Does this history affect your evaluation of the likelihood that she will hold fast to principled positions if confirmed, even if they're unpopular?

Secondly, I'm wondering if you've come across these comments about Ms. Miers from Professor Bromberg:

Alan Bromberg, one of Miers' law professors who still teaches at SMU, said he felt "great satisfaction" when he heard his former student had been nominated to the Supreme Court.

"I think she’s an extremely competent person and will approach every case evenhandedly," Bromberg said.

During Miers’ time at SMU she was elected to the honorary society and Mortar Board, in addition to serving on law review. Miers also received the prestigious 'M' Award given to students who are especially dedicated to the university.

The university recognized Miers' accomplishments by bestowing the Distinguished Alumni Award on her in 2002. She received similar recognition from the law school in 1997....

"Her objectivity and open-mindedness have always helped her no matter what she was involved in," Bromberg said....

Bromberg thinks that Miers has a "good combination of private and political experience,” that would help her as a justice.

"It will be interesting to have an appointment without any ideological track record," Bromberg said.

I'm sure you're troubled by the closing comment; you and many other conservatives would prefer a nominee with a long and very public ideological track record. (I respect that view, and I don't expect to dissuade you from it in this post!)

But otherwise, how does this fairly glowing endorsement from a law professor of some national note who teaches in your own field of expertise strike you? How many of your own students, for example, do you expect to be able to remember so vividly and discuss 35 years from now? And what does that say about those students whom you might expect to remember so well, so long? Would you acknowledge that this is at least some evidence of the "documented high power thinking" upon which you insist? And you've written, for example, of the absence in the current lineup of the Court of anyone with expertise, or even a very good understanding, of many important business law concepts. Do you find it encouraging, then, that during almost all of the 35 years since Prof. Bromberg was her professor, she's been handling mostly civil business litigation for, against, and even about various types of businesses?

I respect you not only as a leading legal scholar and as an opinionated blogger who's whimsically serious and/or seriously whimsical, but as someone who's also open-minded. I'll guess that at least some of the information in this post is new to you, or you'd probably have already discussed it on your own fine blog. (No slight to your wine blog implied, of course!) Can we at least agree for the present, then, that not all the evidence relevant to a thorough assessment of the Miers nomination is yet in? Or is your judgment on the matter already final, no longer subject to being disturbed by direct appeal, certiorari, or even mandamus?

(I apologize in advance, and fully understand, if you'd rather not comment publicly and in detail on matters involving your fellow professors and peers, and if that prompts you to decline to address my questions in their entirety, I'll take no offense and draw no adverse inferences.)


UPDATE (Wed Oct 5 @ 6:00pm): One of my commenters, parsing (and I think mischaracterizing) Prof. Bromberg's words that I originally quoted in this post, suggests that his endorsement was "rather tepid," and that these were "platitudes" that could be applied to "tens of thousands" of students.

Nonsense.  Let me say directly what I merely implied earlier: You don't leave a vivid impression on a law professor that lasts thirty-five years by being an average, slightly-above-average, or even merely a very good student.  How could a professor — and we're talking here about a nationally recognized expert in his field, a life member of the American Law Institute who's also been a senior fellow of the Yale law faculty and visiting professor at Stanford Law School — pronounce himself to be filled with "great satisfaction" if a mediocre student of his had been nominated to the Supreme Court?  And in another source (a Knight Ridder piece) that I'd seen, but didn't bother to link (mea culpa), Prof. Bromberg is quoted as saying of Ms. Miers:

Alan Bromberg, one of Miers' law professors at SMU, remembers her as "a very quiet, very thoughtful, very good student" who made top marks but wasn't a class leader. "She was not the type of student who volunteered a lot of information, but if you asked a critical question, you got a solid, intelligent answer."

Now, we know that later on, after law school, she did indeed become a leader among her peers — managing partner of her law firm, president of both the Dallas Bar Association and the State Bar of Texas. But apparently, in law school, she wasn't what law students call "a gunner" — someone out to hog the spotlight and show off, someone out to embarrass and intimidate her fellow students. (Everyone who's been to law school or seen The Paper Chase knows what I'm talking about; "gunner" is not a term of endearment.) Are "solid, intelligent answer[s]" to "critical question[s]" from a "very thoughtful, very good student" who made "top marks" not good enough? What does Prof. Bromberg have to do to persuade us — hire a plane to skywrite "She's really smart"?

Posted by Beldar at 11:39 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Some questions about the Miers nomination for my blogospheric friend Professor Bainbridge and sent a trackback ping are listed here:

» The Case Against Harriet Miers: The Baseball Analogy from ProfessorBainbridge.com

Tracked on Oct 5, 2005 1:01:44 PM

» Yet more Miers blather from The Ministry of Minor Perfidy

Tracked on Oct 6, 2005 11:00:35 AM

» supreme court: sages or steel traps? from f/k/a (formerly ethicalEsq)

Tracked on Oct 6, 2005 12:06:03 PM

» The Harriet Miers from Roscoe's Blog

Tracked on Oct 6, 2005 1:02:25 PM


(1) David Nieporent made the following comment | Oct 5, 2005 5:11:43 AM | Permalink

I don't know Alan Bromberg, so perhaps he's generally an understated sort of guy. But it doesn't seem to me that calling someone who has just been nominated to the Supreme Court "extremely competent" is much of a ringing endorsement. (I don't know about you, but I look for more than "competence" in my U.S. Supreme Court justices.)

In fact, all the quotes from Prof. Bromberg in that article strike me as rather tepid, given the circumstances. She's competent -- sorry, extremely competent -- and has objectivity and open-mindedness and a "good combination" of experience. That's it?

How many lawyers could be accurately described with those platitudes? Thousands? Tens of thousands?

Every nominee can't be John Roberts, but wouldn't it be good if she could be described with at least a few superlatives?

(2) Tom Grey - Liberty Dad made the following comment | Oct 5, 2005 5:45:15 AM | Permalink

Beldar, your posts about Miers actual experiences are fantastic. I've linked to a few in my post: Common Sense and Goodness, Not a Pointy Head

I'm even refering some other blogs to check you out.

Thanks! (You and Marvin Olasky convinced me.)

(3) Sue Bob made the following comment | Oct 5, 2005 7:38:32 AM | Permalink

I think that her fight to take the ABA back to an apolitical stance is the best argument against those who fear that she is going to have her head turned to liberal mush by all those potential invitations to Beltway cocktail parties. I can't imagine how that must have been for her. I was sad that she was unsuccessful. I quit the ABA over all that.

(4) Deborah Hendrick made the following comment | Oct 5, 2005 9:28:55 AM | Permalink

..."Not a Pointy Head."

Just between me and thee, Beldar, I had to laugh at that.

(5) Patrick R. Sullivan made the following comment | Oct 5, 2005 9:41:20 AM | Permalink

I think Beldar's point has been the same one Will Rogers made with, 'We're all ignorant, just about different things.'

Anyone nominated will have strengths and weaknesses. Miers has a lot more strengths than weakness. Prof Bainbridge is betraying his class prejudices.

(6) JoN made the following comment | Oct 5, 2005 10:53:03 AM | Permalink

You're doing a great job, Beldar, and I'm linking to you in comments on other blogs whenever I get a chance. Do you think you could take on George Will next?

(7) Lucian made the following comment | Oct 5, 2005 1:13:08 PM | Permalink

I appreciate very much you blog since I discovered it about a year ago! Your points of view are very logical in my opinion and in stark contrast to most postings, which are mainly hysterical rants desguised as cogent rational commets.

(8) Mark L made the following comment | Oct 5, 2005 1:32:53 PM | Permalink

The more I read reactions to her nomination the more I believe that a large segment of the anti-Miers conservatives are merely the crowd screaming for Barabus.

Reasoned debate did not work with the crowd then. I have this feeling that despite your efforts, Beldar, it will not work now. It will devolve to a circular firing squad before it ends.

(9) Paul Zrimsek made the following comment | Oct 5, 2005 2:05:21 PM | Permalink

The more I read the more bemused I am. Is there a single other profession in which anyone outside the alumni association would take the slightest interest in where a 60-year-old went to school?


(10) Drugstore Cowgirl made the following comment | Oct 5, 2005 2:21:35 PM | Permalink

I have gone from feeling terribly depressed about and disappointed in the Miers appointment to very, very good about it. I've read and listened to as many viewpoints as possible and as much about Ms. Miers as is available and now believe that this woman is exceptionally strong in character, very intelligent and can be as tough as she will need to be. I also feel that the biggest screamers and yellers are almost always proven wrong. As in the most recent case of Michael "Brownie" Brown whom I do believe is well on his way to being vindicated. So...bedwetters unite! Keep up the good work and it looks like we're going to get one heck of a good Supreme in Ms. Miers.

(11) Brett made the following comment | Oct 5, 2005 2:43:04 PM | Permalink

My. Quite the amen choir you've got going here, Beldar.

In any case, it seems to me that your treatises on Ms. Miers are becoming more and more self-refuting. You write:

Can we at least agree for the present, then, that not all the evidence relevant to a thorough assessment of the Miers nomination is yet in?

Stipulated. And that's precisely the problem. The debate about Ms. Miers' resume aside, the simple fact of the matter is that she's a cipher. Absent anything more substantial than the tea leaves currently in evidence vis-a-vis her conservative bona fides or her views on the role of the judiciary, supporting her appointment to the federal judiciary is entirely a faith-based initiative.

(12) Sam made the following comment | Oct 5, 2005 2:47:23 PM | Permalink

"Absent anything more substantial ... supporting her appointment ... is entirely a faith-based initiative."

But screaming in opposition is rational.

(13) stan made the following comment | Oct 5, 2005 3:45:01 PM | Permalink

The Chicken Little conservatives have completely lost perspective. Some have lost their minds.

First, a justice is a person, not a resume. Second, the president is charged with the duty of choosing the nominee.

He choose Miers. She is unquestionably smart enough for the job. And that really is all that matters on the academic front. Can she handle the intellectual demands of the job? Easily. Besides, this stuff isn't really that hard to understand.

So now she is the nominee. Perhaps not the one some conservatives wanted. Obviously not the type of resume some wanted. BUT SHE IS THE NOMINEE!!!!

What do the Chicken Little types think they are accomplishing with all the teeth-gnashing? (Other than making asses of themselves?)

C'mon crybabies -- get over yourselves and figure out what you can do to make the country better. [hint -- all the whining ain't it]

(14) Brett made the following comment | Oct 5, 2005 3:59:21 PM | Permalink

Who's "screaming in opposition", Sam?

Stephen Bainbridge?

David Frum?

Rich Lowry?

Glenn Reynolds?


George Will?

It's undoubtedly true that Miers has driven some people around the bend, just as Roberts did. However, the insinuation that criticism of and opposition to Miers is largely nothing more than "screaming" is mind-bogglingly dishonest.

(15) bill made the following comment | Oct 5, 2005 4:17:30 PM | Permalink

It's not whining to express concern that the nominee is not up to the job and to not blindly accept the President's choice. If she was so clearly well qualified, the president would not have held a press conference defending her credentials, which included her work with meals on wheels. She would be a fine district court judge perhaps, but it does not make one a "chicken little" to express concern over her qualifications for the high court. Ideas are supposed to matter to conservatives, as should defending the proper role of the courts. That Bush's main defense - to trust him because he knows her - doesn't cut it. I am a conservative and I want a good justice, not just a reliable conservative vote. Being concerned with only getting a reliable vote does not illustrate a proper understanding of the proper role of the Court or separation of powers for that matter.
I agree we need to wait till the hearings, but it is not unfair to point out that there is little in her background to suggest she would be a good justice, someone who could persuasively write about and defend a cogent opinion about major legal issues of the day.
And there are lots of managing partners and bar presidents who may be fine lawyers, but have no more business being on the court than I do, so those points on her resume, while relevant, are one long way from being dispositive.

(16) Knemon made the following comment | Oct 5, 2005 6:15:48 PM | Permalink

"Who's "screaming in opposition", Sam?
Stephen Bainbridge?
David Frum?
Rich Lowry?
Glenn Reynolds?
George Will?"

Yep, pretty much all of them.

(17) Brett made the following comment | Oct 6, 2005 12:20:02 AM | Permalink

Yep, pretty much all of them.

It's always much more convenient when the irredeemable idiots self-identify. Thanks, Knemon!

(18) David Nieporent made the following comment | Oct 6, 2005 1:29:43 AM | Permalink

Are "solid, intelligent answer[s]" to "critical question[s]" from a "very thoughtful, very good student" who made "top marks" not good enough?

For being on the Supreme Court? Not on your life.

What does Prof. Bromberg have to do to persuade us — hire a plane to skywrite "She's really smart"?

That would help. Something to show he was being enthusiastic rather than merely polite.

How about "She's the smartest student I ever had," or at least, "She's one of the smartest students I ever had"?

As I said, perhaps Prof. Bromberg is simply not someone given to displays of emotion; maybe "very thoughtful" is the highest praise coming from him. To me, it sounds like something a professor would say about a good, well-liked student whom he didn't want to offend.

Not to brag, but I certainly had law profs who would say the same about me, but I don't delude myself into thinking that this would be a ringing endorsement for my nomination for the next opening on the court.

I'm not disputing that she's smart. Everything about her resume, including these quotes you cite, says that she is. Everything about her resume, and these quotes, says that she's a hard worker. What I'm disputing is the evidence -- not the fact -- that she's brilliant.

Where's the former professor saying that?

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