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Tuesday, October 18, 2005

K-Lo's fuzzy logic on Miers

I've never met nor spoken with National Review Online editor Kathryn Jean Lopez — K-Lo — and I'm sure she must have the highest ambient email noise of everyone at NRO, which in turn makes it awfully hard to make even her constructive acquaintance that way. I admire her wit (not infrequently self-depricating), her values, and her output. But one of the downsides of blogging generally, and in particular writing a lot of short posts that may not have been the product of careful reflection (even by blogospheric standares of "carefulness") is that one's more inclined to stray off into logical errors.

I think K-Lo fell victim to that a couple of times today with respect to the Miers nomination, on which she's expressed strong and almost uniformly very negative (if sometimes snarky-funny) opinions. I reprint here (slightly revised) my emails to her, which have not yet drawn any response, nor do I think them particularly likely to do so (see above, re ambient email noise):


Changing one's mind vs. changing the law

K-Lo, you wrote:

President Bush has said that he knows Harriet Miers "well enough to be able to say that she's not going to change; that 20 years from now she'll be the same person with the same philosophy that she has today." But when considering the case presumably more personal and important to her than any individual case before the Supreme Court will be — whether to serve on the Court — she changed her mind over the course of months.

Surely, however, even intelligent non-lawyers can readily understand the difference between the sort of "case" involving one's personal goals or preferences, and the sort of "case" referenced in Article III of the Constitution.

If I am asked about my interest in a new job that will require me to go through an extremely unpleasant and intrusive application process (ending my personal privacy, subjecting me to ridicule from the ill-informed and the spiteful), I might quite reasonably conclude that the benefits anticipated don't justify the costs — a personal balancing that leads me to turn the job down. However, if someone whom I trust and admire on a personal basis, as part of his own very important job, asks me to reassess the benefits of my taking the job — and in particular, to re-weigh the public good to be served, as that trusted person views the public good — then I might certainly come to a different conclusion. As it happens, the President hasn't asked me, nor told me he thinks the Nation would be better off with me on the Supreme Court. But he has asked that of, and told that to, Harriet Miers. Are you suggesting that a direct request from, and the considered opinion of, the President of the United States are entitled to no weight?

The process of making even the most profound personal decisions is intrinsically different than the process of judging a "case" or "controversy" within the meaning of Article III of the Constitution.  Equating these two processes is very misleading. And many of us — I presume you, too — think that the future of our Nation, and the integrity of its Constitution and rule of law, are indeed very much more important than our individual lives and fortunes.


Ethics: Not sufficient, but necessary

K-Lo, you wrote:

And do you really expect people to be convinced she's a SCOTUS fit because: "Throughout her career in local, state and Federal governments, Harriet Miers has held herself to the highest ethical standards"?

But you surely understand the difference between the necessary and the sufficient. Do not fault the White House for assuring the public that Ms. Miers is and has always been ethical. Making that assurance is particularly appropriate when a nominee has been accused of being a "crony," as this one has, and by you. "Crony" has connotations that include corruption. That this nominee is not corrupt — that she's no Abe Fortas — is a point worth making, and perhaps a qualification that you would agree ought to be necessary for any Supreme Court Justice.

Nor suggest, please, that by making that assurance, the White House has argued that being ethical is sufficient all by itself. If it were, it would have been a much shorter set of talking points.

Posted by Beldar at 09:20 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to K-Lo's fuzzy logic on Miers and sent a trackback ping are listed here:

» Beldar: 'I may get back in' from TechBlog

Tracked on Oct 24, 2006 6:48:07 PM


(1) saveliberty made the following comment | Oct 18, 2005 9:39:01 PM | Permalink

In the non-Harriet Miers NRO, if there is still such a place, I enjoy reading K-Lo.

But she should have credited the article Beldar references above in part to James Taranto, who had published it at least one if not two days before.

Yes, she may have agreed with it. But could she at least have noted that the same thing had been published on OpinionJournal however many days before?

(2) saveliberty made the following comment | Oct 18, 2005 9:40:48 PM | Permalink

Sorry, meant to reference the point about HM 20 years ago and not changing her mind.

I don't agree with the argument but at least give James his due.

(3) Ironman made the following comment | Oct 18, 2005 10:14:21 PM | Permalink

Perhaps it is time for a SCOTUS jurist named after a SNL character. Beldar, your bandwagon to the bench may have just started.

(4) Beldar made the following comment | Oct 18, 2005 11:09:42 PM | Permalink

Ironman, my nickname is catchier than "Ponnuru," but my history includes targets that even Slow Joe Biden couldn't fail to hit. Trust me, I'd never survive the vetting, much less the confirmation process.

(5) stevesturm made the following comment | Oct 18, 2005 11:28:38 PM | Permalink

Beldar: to paraphrase the old joke, since we've established that Miers is the type of person who might change her mind on a particular issue "after being asked by someone she trusted and admired on a personal basis... to reassess the benefits of her taking a certain position... and... to re-weigh the public good to be served...", then all we're left arguing about is over what issues she is open to changing her mind.

(6) Raoul Ortega made the following comment | Oct 19, 2005 12:03:27 AM | Permalink

Another factor to consider: Once Roberts was confirmed, she'd had the opportunity to see the full confirmation process, up close and personal. Maybe it didn't match the horror stories and that gave her the confidence to say yes when asked the second time.

And for those saying that "changing of her mind" invalidates her, well, I betcha the odds are more than a few of the names being tossed around declined for similar reasons. And thanks to people like K-Lo and the Screechers, those people will probably decline when the next opening appears instead of accepting.

(7) Jeff made the following comment | Oct 19, 2005 10:01:54 AM | Permalink


We have established (maybe) that Miers was willing to change her mind about a personal career choice when asked to by her friend and POTUS George Bush. Personal career choices and court case decisions are apples and oranges. To act like Miers could be swayed to decided a case differently because another person (I'll assume you mean a Justice) is not something a great lawyer like Miers would even consider. In questions of the law I beleive Miers would only be swayed by a "legal" argument.

(8) Jeff made the following comment | Oct 19, 2005 10:07:01 AM | Permalink

Didn't Frum of NRO put Miers on his darkhorse list of candidates back in July ?

Now he's pushing the No-Miers petition ....
I guess you can't expect much from a speech writing hack ...

(9) steve sturm made the following comment | Oct 19, 2005 11:09:14 AM | Permalink


It all depends on how you look at things. Per Beldar's argument, she's shown a willingness to let someone persuade her to do something that she originally thought a bad idea. Why should this trait be viewed as inapplicable to the way she would approach making up her mind on cases before the Supreme Court?

(10) David Walser made the following comment | Oct 19, 2005 12:36:53 PM | Permalink

"Per Beldar's argument, she's shown a willingness to let someone persuade her to do something that she originally thought a bad idea. Why should this trait be viewed as inapplicable to the way she would approach making up her mind on cases before the Supreme Court? - Steve Sturm

Steve, because the two choices are not at all similar. One is one of personal preference: "Would you ever consider moving to New York?" The other is a question of reasoned judgment: "Would you change your mind about whether Roe was properly decided?" Most matters of personal preference are not based on reason but are based on emotion -- why does someone like or dislike chocolate? As personal perspectives and desires change, personal preferences change along with them. Opinions based on reasoned judgment, as opposed to emotion, are not apt to change on a whim. If Meirs had a history of changing her mind on matters involving reasoned judgment, we'd have good reason to suppose she might be wishy washy (technical term) on the court. The fact she is willing to reconsider an employment opportunity give us NO insight into the question any more than does the fact she may have changed her hair style over the years.

(11) David Walser made the following comment | Oct 19, 2005 12:44:25 PM | Permalink

Beldar - I think a lot of us have sent the lovely and talented K-Lo emails on the subject of the Miers nomination. She claims she is posting "representative" emails to The Corner. Still, it seems that most of the one's she and the other The Corner authors have posted are poorly written (complete with spelling and grammar errors) and easily mocked. The well written ones from you (and me) have not been thought worthy of sharing with The Corner's readers. Perhaps someone should create a "Miers letters to The Corner" web page. Just a thought, and one that I don't have the time (or ability) to implement and don't suggest that you (or anyone else) should consider.

(12) slarrow made the following comment | Oct 19, 2005 2:21:55 PM | Permalink

Yes, well, some of the NRO folks keep digging and digging, no matter the size of the hole they're in. Once someone raised the specter of sexism (not against them) and elitism (directly against them but legit), they've gotten very defensive and huffy.

JPod in particular is getting annoying. First he claims that the paucity of actual cases tried is a mark against her. Then he acknowledges that trial lawyers know what that means better than he does (that cases get settled), BUT then he claims that all that trial lawyering doesn't count for being on the Court. Only what he and his circle think are qualifications count:

"But that's what the Supreme Court is. It's a Court. A Constitutional court. If Miers has no background in Constitutional law -- which she doesn't -- and she doesn't have a lot of courtroom experience -- which she doesn't -- then we're back to square one. Which is: Trust me."

The charge of elitism might not stick so readily were he to avoid using baby talk to people who are actually in the lawyering profession. It's episodes like this that remind me that all these conservatives whom I admire are still essentially in the media business, and I think they're talking more from guild habits than they realize.

(13) steve sturm made the following comment | Oct 19, 2005 3:32:25 PM | Permalink

Given this K-Lo posting, "(Miers) changed her religion, she changed her political party, she changed her mind about being considered for court, she changed what she said to Arlen Specter re Griswold", I repeat my question: on what basis do you presume to think that she wouldn't be open to changing her mind on how she would rule on cases before the Supreme Court?

Her defenders can split hairs all they want about career choices being different from ruling on Roe-v-Wade. I prefer to look at the big picture: since she's shown herself 'willing to be persuaded' on some big issues, what evidence is there to reassure us that she would not be just as willing to be persuaded while on the Court?

(14) slarrow made the following comment | Oct 19, 2005 3:57:19 PM | Permalink

More JPod: with his usual graciousness....

(15) Ironman made the following comment | Oct 19, 2005 8:04:24 PM | Permalink

RE; Miers "changing".

My experience is when someone starts moving left to right, or secular to devout...they keep moving in the same direction.

I know very few people who "boomerang" on important issues in their life and resume in later years patterns they had previously abandoned.

(16) Beldar made the following comment | Oct 19, 2005 9:41:01 PM | Permalink

Steve, I presume she can distinguish between "her mind" and "the Constitution." Changing her mind doesn't require, for example, compliance with the Article V amendment process. It's unpersuasive to conflate these very different sorts of decisions, and distinguishing among them is hardly splitting hairs.

(17) Cover Me, Porkins made the following comment | Oct 21, 2005 8:09:23 AM | Permalink

K-Logic: I chose to wear gold-toe socks this morning instead of a pair of argyles. Also, I changed my mind about jurisprudence and decided that the Constitution is an optional guideline when cherry-picking precedent and foreign law for my opinions.

(18) Joel made the following comment | Jun 12, 2006 1:55:45 PM | Permalink

Very fuzzy indeed. I find it hard to believe that this should be as confusing of a matter as it seems to be:)

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