Underneath Their Robes

A Harriet Miers Nomination Post-Mortem

The Supreme Court nomination of Harriet Miers is barely cold in the grave, but the speculation about the identity next nominee is already well underway. Article III Groupie will have her two cents to add. For now, however, a brief post-mortem of the nomination is in order.

Here are a few links worth checking out (gavel bangs: Howard Bashman):

1. Miers: The Only Exit Strategy, by Charles Krauthammer

In this now famous op-ed, Krauthammer laid out the exit strategy that was ultimately employed in Miers's withdrawal: invocation of the fig leaf of "irreconcilable differences over documents." As noted by Lyle Denniston, selection of this withdrawal strategy might preclude the nomination of Attorney General Alberto Gonzales:

Gonzalez's nomination would run into the same problem that the President cited in withdrawing Miers' name: his unwillingness to give senators access to internal White House legal papers. The attorney general was White House Counsel just ahead of Miers, and he had more tenure and more influence in the job than she did, and senators surely would demand access to materials showing Gonzalez's role in the Executive Mansion, just as they did with Miers.

2. Vote for Harriet!!! The dubious professional distinctions of Harriet Miers, by Mark Obbie

Obbie was the editor and publisher of the Texas Lawyer during Harriet Miers's tenure as president of the Texas State Bar. In his piece, he points out why Miers's leadership positions in the Dallas and Texas bars should not have been taken as signifying great professional achievement:

Guess who seeks election to [bar association leadership posts]? Not the busiest, in-demand lions of the bar. Instead, it's usually the second stringers, the runners-up in the lawyer game. Real lawyers, for the most part, snicker about "bar weenies"-much as they did about the goofs in high school who ran for class president. Does David Boies spend his $800-an-hour time going to committee meetings and wrangling over the ABA's next convention schedule? Hardly.

An obvious lesson from the John Roberts and Harriet Miers nominations: When it comes to the Supreme Court, you need to go with a real superstar, Mr. President. Mere competence is not enough.

3. Miers Withdrawal Spawns a New Word, by Nahal Toosi

The article contains the following discussion:

Robert Bork's failed nomination to the Supreme Court in 1987 spawned the verb "borked," defined loosely as getting rejected in an unseemly, even unfair, manner.

Now there is talk online about whether Harriet Miers' withdrawal of her nomination to the high court will give rise to the term "miered."

While liberals led to the opposition to Bork, it was conservatives who brought down Miers' nomination.

A contributor to The Reform Club, a right-leaning blog, wrote that to get "borked" was "to be unscrupulously torpedoed by an opponent," while to get "miered" was to be "unscrupulously torpedoed by an ally."

Another obvious lesson from the Miers nomination fiasco: President Bush, you can't take your base entirely for granted. They're willing to follow you pretty far -- but they won't follow you off the edge of a cliff.

4. After Miers, National Review staff editorial

The editors make a fair point -- one that A3G temporarily lost sight of when, in the excitement immediately following the withdrawal announcement, she issued a post entitled "Ding Dong, the Witch Is Dead!":

No conservative should be in a celebratory mood now that Harriet Miers has withdrawn her nomination. For one thing, reasonable conservatives who considered her unqualified for the Supreme Court conceded that she has had an accomplished career and that she has served the president loyally and, for the most part, well. Gloating would be unseemly. For another thing, the object of conservative agitation against Miers was to get a solid justice confirmed. So the conservative opponents of her nomination have not yet won a victory.

So, Ms. Miers, A3G would now like to apologize for her public rejoicing. A3G would also like to thank you for the service that you performed to President Bush and to the nation, in graciously withdrawing your name from SCOTUS consideration.

Looking to the post-Miers period, the editors offer these observations:

It follows that President Bush should pick the most qualified and confirmable conservative he can find -- male or female. Such a fight could be the way out of the president's current trough.

We do not for a moment believe that the president will pick someone unacceptable to conservatives out of spite. He did not pick Miers in that spirit; as we said on the day of her nomination, we thought it was a good-faith, though mistaken, choice. Bush and conservatives on both sides of the Miers debate should now let bygones be bygones, and stand together in the fight they will now almost certainly face.

Amen; Article 3 Groupie couldn't have put it better herself. This is an elegant and eloquent statement of where we find ourselves now.

A3G can't help noting, however, that urging President Bush to select "the most qualified and confirmable conservative he can find" is about as helpful as telling him to "pick somebody really good." Some of A3G's fellow conservative bloggers will disagree with her on this, but there's an undeniable tension between confirmability and conservatism -- a tension that President Bush (incorrectly) thought he could resolve by nominating Harriet Miers. It will be very interesting to see what happens next...

Heard on the Rialto: Some Post-Miers Rumor-Mongering

If you're looking for serious and thoughtful commentary on what will happen in the wake of Harriet Miers's withdrawal from Supreme Court consideration, check out this excellent post, by Lyle Denniston of SCOTUSblog. (Gavel bang: Howard Bashman.) If you're interested in learning about which women were previously eliminated as potential Supreme Court justices, en route to the ill-fated nomination of Harriet Miers -- information that could shed light on the identity of the next nominee -- read this column by John Fund. (Robe swish: David Frum.)

But if you're interested in completely unsubstantiated, utterly baseless rumors about who might be the next SCOTUS nominee, you've come to the right place! Here are a few of the more juicy rumors in circulation this morning:

1. At the White House, Karl Rove is meeting with President Bush, offering him this advice: "Mr. President, I have a great idea for whom you should nominate. He's one of the nation's best lawyers, with many years of dedicated government service under his belt. His integrity lies beyond question. His name is Patrick Fitzgerald..."

2. In Alexandria, Virginia, Judge J. Michael Luttig has asked his law clerks to conduct research into the world's leading experts in sex reassignment surgery. Judge Luttig was overheard making the following remarks to his clerks:

Once I get that sex change operation, I will be unstoppable as a Supreme Court nominee!!! This explains why, many years ago, I made the brilliant decision to go by my middle name. That choice will now allow me to be reincarnated after my surgery with ease -- as the Honorable Jennifer M. Luttig!!!

3. In Newark, New Jersey, Judge Samuel Alito has given his clerks a little genealogical research assignment: "Please find support for the following proposition: Alito is a common Hispanic surname."

4. In Houston, Texas, Judge Edith Jones is making an online donation to Planned Parenthood.

5. In Washington, D.C., Attorney General Alberto Gonzales is making an online donation to National Right to Life.

6. In Medina, Ohio, Judge Alice Batchelder is on the phone with 1-800-FLOWERS: "Hi, I'd like to arrange for delivery of a dozen roses to one Jo Ann Davidson..."

7. In Washington, D.C., Maureen Mahoney is drafting the following letter to the U.S. Government Printing Office, which publishes U.S. Reports; West Publishing, which publishes the Supreme Court Reporter and runs Westlaw; and Lexis/Nexis:

To Whom It May Concern:

Please be advised that you have erroneously listed me as counsel of record in Grutter v. Bollinger, No. 02-241. This case was actually handled by Maureen M. Mahoney, of Kaw Valley Center, Inc., 759 Vermont Avenue, Kansas City, Kansas.

Please correct this error as soon as possible. Thank you for your time and immediate attention to this matter.

Sincerely,

Maureen Mahoney, Esq.

Latham & Watkins

8. Finally, in Austin, Texas, Judge Priscilla Owen is placing a telephone call to Justice Nathan Hecht: "Hey, Nathan -- got any plans for Saturday night?

If you have any legitimate, more substantiated rumors about the identity of who will be replacing Harriet Miers as President Bush's Supreme Court nominee, please email Article III Groupie. Muchas gracias!

Breaking News: "Ding Dong, the Witch Is Dead!"

No, this is not a joke. As so many of us had hoped, Harriet Ellan Miers, Bitch-Goddess of La Casa Blanca, has just withdrawn as a nominee to be an Associate Justice of the United States Supreme Court. O happy day!

Miers's withdrawal letter -- it looks like Harriet Miers lacks personalized stationery -- can be accessed here (pdf). President Bush's statement, in which he explains that he "reluctantly accepted" Miers's resignation, is available here.

Earlier this week, Article III Groupie expressed doubt that Harriet E. Miers would withdraw as President Bush's SCOTUS nominee. But A3G's assessment was made before the latest Harriet Miers disasters, including the news that Miers delivered speeches in the 1990s in which she extolled the virtue of "self-determination" with respect to abortion and school prayer, questioned the utility and efficacy of "legislating religion or morality," and cited with approval such liberal feminist icons as Justice Ruth Bader Ginsburg and, believe it or not, Barbra Streisand. At any rate, this is one situation in which A3G is happy to be wrong.

A3G is pleased as punch about Harriet Miers's withdrawal, not just as a solid conservative and a concerned citizen, but as a blogger. As you could probably tell from how her Miers-related blogging slowed to a trickle, A3G was sick and tired of whacking at the Harriet Miers pinata. After an initial spate of fun and mocking posts, blogging about HEM got very tired, very quickly. Now A3G can take all of those Harriet Miers-related emails from her readers -- for which she thanks you very much, by the way -- and banish them to the archives of her Gmail account.

A few questions that immediately spring to A3G's mind:

1. Will Harriet Miers continue to serve as White House Counsel, and will she be involved in the selection of the next nominee? (The concluding sentence of her withdrawal letter reads, "I am most grateful for the opportunity to have served your Administration and this country." This could be read as suggesting Miers's imminent departure from White House service.)

[Update: As helpfully noted by this comment, the AP reports that Miers will stay on as White House Counsel.]

2. Who will the next nominee be, and does that nominee have to be a woman?

3. How quickly will the White House name the next nominee?

4. How upset is Justice Sandra Day O'Connor right now? (A3G feels badly for SOC, who wants and needs to spend more time with her ailing husband, but who has committed to remain on the Court until the confirmation of her successor.)

5. Finally, why did Judge J. Michael Luttig bring donuts and fresh apple cider into chambers this morning?

Dear friends, these are interesting and exciting times for federal judicial groupies. Stay tuned!

Harriet Miers: Will She Withdraw?

The Supreme Court nomination of Harriet Miers continues to crash and burn. Here are selected developments from the past few days:

--the nomination has been engulfed by controversy over the White House's refusal, on executive privilege grounds, to turn over Harriet Miers-related documents to the Senate Judiciary Committee;

--the results of opinion polls about the nomination are not encouraging;

--the influential editorial page of the Wall Street Journal recently dubbed the Miers nomination a "political blunder of the first order" (which was actually charitable of them, considering that other bastions of conservative thought, such as the National Review and the Weekly Standard, have explicitly called for her withdrawal);

--George F. Will just issued another excellent (and blistering) column, shooting down some of the arguments that have been offered in defense of the Harriet Miers nomination;

--John Fund, in his own harsh column, reports that "the nominee has stumbled frequently in the tutorials in which government lawyers are grilling her in preparation for her November 7 hearings" (gavel bang: Todd Zywicki);

--a new website, WithdrawMiers.org, has been "established to urge the withdrawal of Harriet Miers from consideration as a nominee for Associate Justice on the United States Supreme Court" (robe swish: Howard Bashman);

--a new non-profit organization of conservatives, Americans for Better Justice, has been formed, with the objective of "100,000 names on a petition to the president and a massive letter-writing campaign to secure the withdrawal of the Supreme Court nomination of Harriet Miers" (gavel bang: Professor Zywicki);

--David Frum's own online petition for the withdrawal of the nomination continues to gain signatures; and

--the troubling qualifications questions persist.

Will Harriet Miers withdraw, in light of these and other depressing developments? Probably not. A well-placed UTR source on Capitol Hill estimates the chances of Miers withdrawing her name at "under 15 percent."

Sadly enough, this makes sense. When Justice O'Connor's seat first became vacant, before Chief Justice Rehnquist passed away, Harriet Miers actually (and wisely) declined to be considered for the spot. But having agreed to toss her hat in the ring the second time around, it might be hard for her to withdraw now -- at least without admitting that she was doing so due to criticism and under pressure.

And it gets worse. In a recent appearance on "This Week," New York Times columnist David Brooks observed that even if Harriet Miers were to go to President Bush and ask to be withdrawn, the president might not let her -- just as he reportedly refused to allow John Bolton to withdraw from consideration as the U.S. Ambassador to the United Nations.

Even those who generally support President Bush, like A3G, know that he can sometimes be stubborn and petulant. If Harriet Miers expressed a desire for her nomination to be withdrawn, President Bush would be reluctant to accede to her request for his own political reasons: he would fear that withdrawal would make him and his administration look "weak." He would probably pressure her into changing her mind.

Of course, if Harriet Miers were to insist on withdrawal of her nomination, the president couldn't do much about that. But can we really expect Harriet Miers -- who views the president as "the most brilliant man she has ever known" -- to stand up to a man whom she idolizes, like a teenage girl looking up to a boy band leader?

"Fasten your seatbelts, it's going to be a bumpy night!"

A Nomination Implosion, and More on Harriet's Handwriting

Because Article III Groupie has been so busy at work this week, she has lost control over the Harriet Miers nomination. But then again, so has the White House!

A3G will now endeavor to dip her toe back in the Harriet Miers waters -- or swamp, as the case may be. Getting back up to speed is difficult, however, because this past week has been so full of disasters with respect to this nomination. Here are a few of the more prominent ones:

--the controversial conference call with Christian conservatives, as reported by John Fund (which could result in Justice Nathan Hecht and Judge Ed Kinkeade being hauled before the Senate Judiciary Committee);

--the cynical yet incompetent White House spin job concerning Miers, her religion, and her views on Roe;

--the embarrassing news that Harriet Miers failed to pay her Texas and D.C. bar dues (i.e., "Harriet Miers pulls a Thomas Griffith," not unlike "Kimba Wood pulls a Zoe Baird"*); and

--the humiliation of Harriet Miers having to redo many of her "inadequate," "incomplete," and "insulting" responses -- which she handed in late, by the way -- to the Senate Judiciary Committee questionnaire. (Miers is trying to frame this optimistically, but her take is unpersuasive.)

How can A3G ever catch up with her Harriet Miers blogging? There's just so much deserving of mockery!

Well, let's start small. In Harriet's Handwriting: She's One Loopy Lady!, A3G analyzed a few Harriet Miers-related documents that were recently released to the public. You can access the documents that A3G reviewed here (see the numbered links at the bottom of the page).

A3G would now like to supplement her earlier comments, by passing along these additional observations from a UTR reader (again, documents are identitifed by Bates number):

Miers's reputation in the White House as a grammarian and proofreader extraordinaire is quite undeserved. When it comes to both technical correctness and prose styling, she is no John Roberts.

--000059: "you are not younger than me." Me???

--000056: "Thank you very much for taking the time our [sic] of your busy schedule to meet Larry Littwin last week."

--000054: "All I hear is how great you and Laura are doing. The dinner here was great -- especially the speech! Keep up all the great work."

--000022: "The major drawback to speaking at this particular event is as I understand the event, the speaker has to include at least some remarks about me."

--000001: "Thanks also for yours and all your family's personal sacrifice."

--000004: "For example, charging unconscionably high fees are [sic] prohibited...."

--000005: "And an attempt to unjustifiably proscribe the jurisdiction of the Supreme Court in matters at the heart of the practice of law in this State is bad public policy, if allowed."

--000005: "The passage of this proposed law squarely raises the issue of the special interests laws for the benefit of those who have the wealth and power to cause to be passed self-protective legislation."

UGH!!! As David Brooks aptly observed in a recent New York Times column, in which he quoted at length from tortured prose penned by Harriet Miers, "Of all the words written about Harriet Miers, none are more disturbing than the ones she wrote herself.... [T]he quality of [her] thought and writing doesn't even rise to the level of pedestrian."

To paraphrase Green Day, A3G says: "Wake Me Up When [October] Ends..."

* Yes, you're right. Judge Wood and Zoe Baird should not be lumped together, as A3G has previously acknowledged:

In 1993, [Kimba Wood] was nominated for the post of Attorney General by President Clinton (who is known to have a weakness for dark-haired beauties). But she was forced to withdraw in the wake of a "Nannygate" scandal. As Lance Morrow of Time magazine explains in this column, Judge Wood had actually followed the law in her employment of a nanny. But the Clinton Administration abandoned her nomination anyway, having just been burned by the nanny scandal of Zoe Baird, the first nominee for the post.

Courthouse Forum: Gregg Easterbrook!

After issuing Where Is the Love... for Judge Frank Easterbrook?, Article III Groupie received lots of great emails in response. The most exciting of the bunch: celebrity correspondence from judicial sibling Gregg Easterbrook, which A3G will now publish here in Courthouse Forum!!! (As you may recall, Courthouse Forum -- named after Penthouse Forum -- is where A3G publishes the most sizzling and scrumptious letters from her readers, in unredacted form.)

As noted in A3G's post about Judge Easterbrook, Gregg writes the Tuesday Morning Quarterback column for NFL.com. As noted in the bio on his website, Mr. Easterbrook is also "the author of several books, a senior editor of The New Republic, a contributing editor of The Atlantic Monthly, a contributing editor of The Washington Monthly, and a visiting fellow at the Brookings Institution." WOW!

And now, on to Gregg Easterbrook's message. Before reading it, please note the following disclaimer from Mr. Easterbrook: "Frank has nothing to do with my touting him. When I tout him, he never even knows about it until it's too late to stop me."

Okay, here's the email:

Dear AIIIG,

Many thanks for the kind words about my brother and for calling me "cool." If only my wife thought that!

Frank did receive serious White House consideration during the late Reagan presidency, but was thought too young then. Reagan, bless him, understood that intellectual firepower is important to governing. Not all presidents get this point, and the result is often short legacies. This year he's been cited by the Wall Street Journal, Baltimore Sun, Slate and elsewhere as a deserving Supreme Court candidate.

Here are more arguments for Frank:

1). He is a first generation American, our parents being naturalized Canadians. Okay, Canadio-Americans are not an important demographic. But first-generation Americans really, really love America, which is a good quality in a justice.

2.) He has genuine bipartisan credentials, having been a deputy S.G. under both Gerald Ford and Jimmy Carter. Genuine bipartisan credentials are in this day and age nothing to be sneezed at.

3). He was confirmed to the appeals court unanimously by the Senate.

4). His record of arguing and winning cases before the Supreme Court is about the same as John Roberts's.

5). His record of having opinions upheld (or dissents sided with) at the Supreme Court level is among the best on the federal bench.

6). He is one of the few legal scholars in the world able to install, unassisted, a wireless home LAN system, which he did for my kids last Christmas.

7). He's sentimental. Every year on Christmas Eve he watches the 1951 black and white Alastair Sim movie of "A Christmas Carol." (This is the best "Christmas Carol" ever, we watched it annually on Canadian television growing up as boys.)

8). He decided the Indianapolis First Amendment case [Hudnut] strictly on the Constitution, knowing his decision would make powerful people mad. (Ed Meese, others.) We want justices who worry more about the opinion of the Framers than the opinions of those in power in the present.

9). He's tough on crime and Chicago School on economics, but a progressive on women's rights (his Johnson Controls decision), minority rights and environmental protection. Tough on crime, free-market on economics and progressive on women's rights, minority rights and environmental protection pretty much describes the contemporary American political center.

10). He likes DisneyWorld and LegoLand. Took my kids, when little, both places.

Best,

Gregg

PS: needless to say Frank has nothing to do with anything I say about him.

PPS: There is a third cool Easterbrook brother, Neil Easterbrook, assistant professor of English at TCU and the handsome one in the family.

Absolutely awesome!!! A3G just loved this message, especially the tidbits about how Judge Easterbrook was considered for the Supreme Court in the late Reagan administration, but was viewed as too young. This led A3G to think that SCOTUS nominees are sort of like sexual partners: "Yes, we want them young -- but not TOO young!"*

In terms of the "top 10" list of reasons to put Judge Easterbrook on the Supreme Court, A3G especially enjoyed items (6), (7), and (10). Can you imagine spotting a leading circuit court judge at DisneyWorld? Talk about a judicial sightation!

* For example, take Judge Easterbrook's colleague, Judge Diane Sykes. At 48 years old, she was probably a little too young and unseasoned to be considered as a replacement for Justice O'Connor. If judicial hottie Sykes were a few years older -- or maybe Latina -- we might have been spared the prospect of Associate Justice Harriet Miers...

Where Is the Love... for Judge Frank Easterbrook?

For some two decades, Judge Frank H. Easterbrook has been one of the brightest stars in the federal judicial firmament. In light of his reputation as a legal genius, as well as his well-known conservatism, it's not surprising that several of you have written Article III Groupie with basically the same question: Why is Judge Easterbrook seldom mentioned as a possible Supreme Court short-lister?

(Yes, A3G realizes that the question is somewhat academic, since (1) we're stuck for the time being with Harriet Miers, and (2) the next Supreme Court vacancy might not come up anytime soon. But it's still an interesting inquiry that merits consideration.)

The following email about Judge Easterbrook is representative:

A3G, I'm a huge fan of your blog. Perhaps you can help me with a nomination question. I've always considered Easterbrook the best writer in the judiciary. He's sharp, smart, and fun. (He's also somewhat difficult to be around, based on his moot court trip to Michigan, but that's for another time). I also seem to recall that he "objectively" ranks as the second best judge in the federal judiciary after Posner. [Presumably the writer is thinking of this interesting analysis of judicial performance, by Professors Stephen Choi and Mitu Gulati.]

So why is this guy never considered for the Supremes? 

And here's another such email, sent to A3G shortly after Justice Sandra Day O'Connor announced her retirement:

Over the past 10 days we've heard every name from John Breaux to Ann Coulter as a potential replacement for SOC.... I'm no veteran Article III watcher, but I've been surprised that I haven't seen the first mention of Judge Frank Easterbrook as even a remote possibility for promotion. On the surface, he seems like a plausible nominee: impressive service in the SG's office, a prolific academic career, many years' service on a significant appellate bench, constructionist/Constitutionalist judicial philosophy (from what I can gather)...

In addition to the positive attributes identified by these two readers, here are a few more cool things about Judge Easterbrook:

1. He's a judicial hottie (male hottie #2).

2. Not only are his opinions excellent, but he writes them himself.

3. He is not afraid to have fun in his judicial and scholarly writings. He once cited the video game "Missile Command" in a law review article, and he referenced "Space: 1999" in the footnotes of a judicial opinion. (Gavel bangs: Ted Frank, who clerked for Judge Easterbrook.)

4. He has a cool brother, Gregg Easterbrook, who writes the "Tuesday Morning Quarterback" football column for NFL.com.*

So, in view of these fun facts -- plus his impressive credentials, relative youth (under 60), and solid conservatism -- why doesn't Judge Easterbrook get talked about more as a possible Supreme Court nominee?

Here are a few possible reasons for Judge Easterbrook's inability to generate SCOTUS buzz, some from readers of this blog and some from A3G (with reactions from A3G indented):

1. "Did Hudnut scare off too many people?"

It's possible; but why should it? Judge Easterbrook's ruling, while perhaps controversial in some quarters, was eminently defensible as a legal matter -- which may explain why the Supreme Court summarily affirmed.

2. Judge Easterbrook cruelly declined to be interviewed by A3G for her celebrity interview series, Questions Presented (even though he sat down for this great interview with Howard Bashman of How Appealing).

Alas, A3G can only dream of having such power... And she is still looking for her next interviewee, by the way. (Don't forget: judges who come out and play with A3G get much more favorable coverage in UTR than judges who shun her company!)

3. Judge Easterbrook is a member of the Great Unwashed.

To be sure, having clerked for the Supreme Court is becoming increasingly important as a credential for federal judicial service, especially for service on the Supreme Court. But it's by no means essential. Of the current members of the Court, only three -- Chief Justice Roberts, Justice Stevens, and Justice Breyer -- are former Supreme Court clerks. And a Supreme Court clerkship is just one of many qualifications missing from the resume of Harriet Miers. So this probably isn't what's holding back Judge Easterbrook from a seat on the Court.

4. Judge Easterbrook is a member of the great unwashed. According to a UTR reader, "there's a story that in his early days at Chicago, one of his colleagues had to take him aside and suggest that a more frequent use of the shower and an occasional indulgence in deodorant would be collegial, at the least."

Obviously this is not a positive attribute. But would substandard hygienic habits be enough to torpedo one's chances to making it to One First Street? A3G thinks not. After all, no one has ever said that Justice Ginsburg smells like a spring rose!**

5. Judge Easterbrook lacks a "judicial temperament." Indeed, unlike the affable Chief Justice Roberts, Judge Easterbrook is known to have a temper (as previously reported in this blog). One UTR correspondent says that Judge Easterbrook is known for being "hell on lawyers, many of whom find him simply sadistic, and not very easy on his clerks either.  And then there's his rigid insistence on form in filing briefs."

Fine, so Judge Easterbrook bench-slaps lawyers sometimes; but so does Nino. Judge Easterbrook can be tough on his clerks; but so can Ruthie. Being harsh and occasionally difficult, while not exactly plusses for one's SCOTUS candidacy, would not be disqualifying factors, at least not standing alone.

6. Judge Easterbrook is too independent a thinker and/or too libertarian to be selected for the Court.

This explanation for Judge Easterbrook's inability to get SCOTUS traction may be the closest to the truth. As one UTR reader put it, "Perhaps the fact that his resume includes service for Robert Bork AND Jimmy Carter gives both sides pause when they contemplate the idea of Associate Justice Easterbrook."

Here's A3G's theory on selecting Supreme Court nominees: What every president is looking for in a Supreme Court nominee is "a principled hack." This contradiction-in-terms sounds nonsensical, but it's actually quite logical; allow A3G to explain.

Presidents want the justices that they appoint to be political hacks -- i.e., reliable votes in favor of the president's desired political outcomes, be they liberal or conservative. But presidents also want their nominees to have a pre-confirmation record of adherence to principle. Besides being a good thing in and of itself, a record of being principled may facilitate the confirmation process, by allowing the candidate to defend prior rulings or past actions by saying, "Hey, look, those weren't my personal views; I was just following certain principles." Once the nominee gets confirmed, the ability to appear principled continues to be a helpful, since the nominee can justify votes in favor of a particular outcome by reference to a larger jurisprudential framework (e.g., the originalism of Justice Scalia, or the originalism-with-minimal-stare-decisis of Justice Thomas).

Jurists like Judge Easterbrook, Judge Posner, and Judge Kozinski are very committed to principles and the rule of law (which is why they are so widely admired, in addition to being brilliant). The problem with them as Supreme Court nominees comes from the second part of the test: they are insufficiently hack-like. They are not rigid enough in their voting patterns, occasionally voting for outcomes that are politically unpalatable, when their review of the law convinces them that such a result is required. In short, they vote with their consciences, deciding cases based on their honest views of the law, with no consideration for how their ruling might affect their possibilities for promotion.

Does this mean that judges who are perhaps more consistent and predictable in their voting patterns -- folks like Judge Luttig, Judge Wilkinson, and Judge Alito -- are not following the law? No, not necessarily. These three judges are also widely viewed as being conscientious jurists, who occasionally vote for non-conservative outcomes. It's just that, perhaps conveniently for them, their conscientious reviews of the law take them away from conservative outcomes with less frequency than the analyses conducted by judges like Kozinski, Posner, and Easterbrook.

Of course, A3G's "principled hack" theory is arguably called into doubt by President Bush's selection of Harriet Miers as his Supreme Court nominee. Although she may turn out to be a principled hack if and when she is confirmed to the Court, her virtually non-existent pre-nomination record reflects neither an intellectual commitment to jurisprudential principles nor a hack-like commitment to conservative outcomes.

Back to the question that kicked off this post: When it comes to SCOTUS consideration, why is it that Frank Easterbrook "can't get no respect"? If you have any thoughts to add on this, please share them in the comments or in an email to A3G. (If you email A3G and never hear back, however, please don't be offended; unfortunately, she is unable to reply to most of the emails that she receives.)

(Update: There are some pretty funny comments in the comments to this post; be sure to check them out.)

* A UTR reader has this to add about the very impressive Gregg Easterbrook (which suggests that genius runs in the Easterbrook family):

Gregg Easterbrook writes the "Tuesday Morning Quarterback" football column for nfl.com. When he's not writing this column, he gets all scholarly in his roles as senior editor of The New Republic, a contributing editor of The Atlantic Monthly, and a visiting fellow at the Brookings Institution. He indeed has an impressive pedigree for a football columnist.

His style is very similar to yours, which is, as diva ex-con Martha Stewart might say, a "good thing." His columns are known for their epic length, football haikus, criticism of nouvelle cuisine menu items (like [his recent] mention of "lobster-filled corn dog with black truffle sauce"), and cheerleader analysis (including the occasional "cheer-stud" bio for "female and non-traditional male" readers, and his theory that in December "cheer-babe professionalism" requires shunning sweatsuits and continuing to wear skimpy outfits).

Occasionally esteemed brother Frank will make an appearance, including once last season to weigh in on the physics principles that render impossible one of the premises of a recent James Bond movie. This week's column is available here.

** Far from suggesting that Justice Ginsburg has a body odor problem, A3G is merely making the literal statement that she has never heard anyone utter the sentence, nor read an email stating, "Justice Ginsburg smells like a spring rose!" But if you have any personal knowledge of what RBG smells like, perhaps including information about any deodorants and/or perfumes she employs, please feel free to email A3G.

Harriet Miers: She Gets a Strike!

An article by Todd Purdum in today's New York Times identifies what may be, sadly enough, one of the more compelling reasons to support the confirmation of Harriet Miers:

"You know, she's a very gracious and funny person," said Joshua B. Bolten, the director of the Office of Management and Budget whom Ms. Miers succeeded as deputy White House chief of staff in 2003. "I was racking my brain trying to think of something specific."

In the next breath, Mr. Bolten recalled relaxing with her at Camp David. "She is a very good bowler," he said. "For someone her size, she actually gets a lot of action out of the pins."

As the not-so-old saying goes, "Those who can, bowl -- and the rest of us can be there to support the ones who do!"

Is there any hope that Harriet Miers, despite being an excellent bowler, might ask the president to withdraw her nomination? The chances are slim; citing Tom Petty, the nominee has vowed that she "won't back down." But if she changes her mind, she can exit gracefully and with her dignity intact, by following the brilliant game plan laid out by Peggy Noonan.

Breaking News: Harriet Miers's Withdrawal Statement!!!

One of UTR's top-secret operatives in the White House has leaked to Article III Groupie the nomination withdrawal statement that Harriet Miers plans to submit to President Bush after the close of business today, Friday, October 14. It reads as follows:

Dear Mr. President:

It should come as no surprise for you to learn that the greatest honor I have ever received was to be nominated by you to serve as an Associate Justice on the United States Supreme Court. Words cannot express how grateful I am to you for this honor. The fact that I was selected personally by you only deepened the distinction. As you know, you are the most brilliant man that I have ever met, deserving of great respect.

After careful and considerable reflection, however, I write to request that you withdraw my pending nomination to the U.S. Supreme Court. I do not take this step lightly or rashly, and I take it with no small amount of regret that things could not have turned out differently. My request is unrelated to the isolated concerns that have been voiced about my nomination by a handful of fringe groups. Rather, I am withdrawing from the process based on personal reasons.

Some may question my need to withdraw my name from Senate consideration based on "personal reasons," since I am unmarried and have no children. But that is exactly the point. The time has come for me to focus my full attention and complete energies on my career -- not my legal career, but my career of "being a woman."

Funny business, a woman's career, the things you drop on the way up the ladder so you can move faster. You forget you'll need them again when you get back to being a woman. It's one career all females have in common -- being a woman. Sooner or later we've got to work at it no matter how many other careers we've had or wanted. And in the last analysis nothing is any good unless you can look up just before dinner or turn around in bed and there he is. Without that you're not a woman. You're something with a French provincial office or a book full of clippings but you're not a woman. Slow curtain, the end.*

The past two weeks have reminded me of what matters most to me in life, and the answer can be summarized in two words: Nathan Hecht. During the occasionally difficult times that I have endured since the announcement of my nomination, Nathan has been by my side, through thick and thin. He has been my defender, my champion, my friend. Before it is too late -- before I lose Nathan's affections to that most conniving judicial diva, Priscilla Owen -- I must return to my home state of Texas, to pry Nathan loose from Priscilla's clutching claws.

You and Laura are deeply blessed: you belong to the most loving marital union I have ever known. I trust that you, of all people, will understand my decision and my need to take this step at this time.

Once again, I thank you for the profound honor of a nomination to the United States Supreme Court, as well as for the opportunity to have served you and our great nation as White House Counsel, Deputy Chief of Staff, and Staff Secretary. I remain deeply grateful to you and to Laura for all of the kindness and consideration, both professional and personal, that both of you have shown to me over the years. If I am ever needed at some future point in time to serve our country, in any capacity whatsoever, please do not hesitate to call upon me.

Very truly yours,

Harriet Ellan Miers

[Handwritten postscript: If Nathan and I do end up getting hitched, you and Laura had better be there!!! You'll be sorry if you miss it -- the reception is going to be one bitchin' Texas barbecue!!! I promise more fun than you can shake a brush-clearing stick at. Trust me: public scatology WILL BE INVOLVED!!!!]

* Yes, Harriet Miers lifted this paragraph wholesale from one of the best movies of all time, All About Eve. It's a monologue delivered by Margo Channing, played by the immortal Bette Davis, in one of the finest performances ever recorded on celluloid.

Harriet Miers: A Fashion Icon?

Harriet Miers is no great writer, as recently noted by David Brooks. And she is definitely not a member of the Federalist Society. These are two big strikes against her, as far as Article III Groupie is concerned.

But might Harriet Miers be an avatar of style, endowed with really nice legs? Quite possibly; details here (via Wonkette) and here (scroll down to the sixth bullet).

A3G apologizes for her relatively light blogging over this past week. Unfortunately, she has yet another court filing due today. :-(