That's a good point about her possible leanings (or lack thereof) on criminal law matters. Maybe she is a conservative for a super-duper major partner at a big-ass law firm. That doesn't necessarily mean she sees problems with the Atkins or Roper decisions. Specifically, she may not see what all the fuss is about letting psychological experts determine if someone is less morally culpable than say, the South Park Mexican. I mean, civil attorneys use experts all the time, that's the name of the game.

But speaking of South Park Mexican, we've never had a convicted felon on the Supreme Court. Doubtless he has some practical experience that could be helpful. And, as a rapper, he certainly has a way with words. And he's certainly off the charts on the diversity scale. Nah, that's got to be unconstitutional.

My vote is still for Newell. I know he will anguish over his decisions. Perhaps Newell could accomplish what no sitting Supreme Court Justice has yet to acheive, that is, convincing a major hamburger restaurant chain to name a burger "The Chief Justice Warren Burger-Burger, with Cheese".

[This message was edited by Greg Gilleland on 10-03-05 at .]

I found this on SCOTUS blog:

The burden of proof may be heavy
Posted by Lyle Denniston at 09:45 AM

Two of the most undistinguished members of the modern Supreme Court -- Justices Harold Burton and Sherman Minton -- got on the Court almost entirely because they were cronies of President Harry Truman; there were few other qualities of note. When the Senate Judiciary Committee takes up the nomination of Harriet Miers to be an Associate Justice, she will have the burden of proving that she is qualified to join the Court and was not chosen on the basis of cronyism. That could pose a serious challenge.

One of the more interesting questions, at this early stage of the nomination process, is whether the American Bar Association will find Miers to be qualified for the Court. Although the ABA's views are not highly regarded by the Bush Administration, a failure by the ABA to endorse her could be crucial, if the nomination gets into trouble on any other ground.

Miers suffers, perhaps greatly, by comparison to the President Bush's other nominee, Chief Justice John G. Roberts, Jr., and few observers would expect her to perform at anywhere near to his level before the Judiciary Committee. Only senators wholly committed to Bush's choice, perhaps solely because he made it, are likely to have an easy time with the nomination if her performance is visibly lacking.

There will be, of course, a major fight over access to legal papers she has written over the years in her public positions; the White House almost certainly will resist on grounds of attorney-client privilege. Roberts was able to make it through without disclosure of a good deal of his legal advice, but Miers may not be able to duplicate that feat.

Miers' defenders have already begun moving to shore up her nomination, and one can expect in coming days that she will be ranked, by them, at the top of the American legal profession. That will be tested in time.

At a minimum, it does not seem likely that the fight over Miers' nomination will be resolved until well into the winter.

Another unresolved question as of Monday morning is why President Bush felt a need to upstage the ceremony in which Chief Justice Roberts formally joined the Court. There was no apparent need for urgency, and the effect was to overwhelm Roberts' investiture by the news of Miers' nomination. It was not an exhibition of refined manners. And perhaps it served mainly to draw an even more vivid comparison between the two of them, to her disadvantage.

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Reckon she'll be relying on French law in her death penalty jurisprudence?

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Didn't the French invent the guillotine? Seems French engineering would be a better reference point.

On a more serious note, Jimbeaux's question about how a Miers appointment will help in the criminal justice arena reminded me of that post from last year on the number of past presidents w/ prosecutorial experience (answer: not many).

In that same vein ... how many SCOTUS justices had "prosecutor" on their resume when they got their appointment? I bet the answer for those in the post-WWII era is also "not many" ...

Thirty-nine of the Justices of the supreme court were lawyers who had never been judges. I have no problem with a non-judge nominee. I just want to make sure she is Byron White and not Earl Warren.

by the way....President Nixon referred to Rhenquist as "that clown" while the future Chief Justice was a lowly worker bee in the Solicitor General's office. President Nixon thought Rhenquist wore his hair too long.

The Supreme Court Nominees should have 2 types of experience, as they will handle TWO types of cases: Civil and Criminal. I would like to know that the nominee had both, and specifically had DEFENDED AT LEAST one complex criminal cases/issue. Otherwise, they would not benefit us anywhere in the criminal system.

Otherwise, I stand on my prior statement that no one should be a judge or prosecutor without having spent at least one year as an appointed criminal defense attorney.

I have recently heard that Miers, age 60, never married, no children. Could that possibly be a stumbling block for conservatives?

The Constitution does not explicitly establish any qualifications for Justices of the Supreme Court. That being the case, I have a few non-lawyer fishing buddies that would make the confirmation hearings much more interesting than the "I can't answer this" or "I can't comment on that" that everyone gets so excited about. The Senators might even learn a thing or two about a Red fish.

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In that same vein ... how many SCOTUS justices had "prosecutor" on their resume when they got their appointment?

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Oh, dear. The point is not whether a SC justice has been a prosecutor. The point is, what do we think about someone who has spent a big chunk of her professional life submerged in organizations where the leadership is anti-prosecution, anti-law enforcement, and anti-death penalty.

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In that same vein ... how many SCOTUS justices had "prosecutor" on their resume when they got their appointment? I bet the answer for those in the post-WWII era is also "not many" ...

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By my calculation, five Justices since WWII have been prosecuters: Earl Warren, Frederick Vinson, David Souter, John Marshall Harlan and Hugo Black.

I calculated another five former prosecutors sat on the Supreme Court in the first half of the 20th Century: Owen Roberts, Pierce Butler, William Moody, Joseph McKenna and Rufus Peckham.

Interestingly, the post-WWII former prosecutors did not necessarily turn out to be pro-prosecution on the bench.

I love the internet! You can learn all kinds of neat stuff ....

"Interestingly, the post-WWII former prosecutors did not necessarily turn out to be pro-prosecution on the bench."

I blame the sixties.

Thinking about having a Supreme Court Justice with civil and criminal experience, I have concluded that in this day and age, you cannot reach the point of being nominated for a seat on the Court and be a general practitioner.

To be nominated requires either rising to the top of a government legal body (e.g., Dept. of Justice) or a big law firm. Neither of those career tracks is conducive to having a broad legal experience. Atticus Finch would not make the short list; he was too busy practicing law.

Let's not forget Robert Jackson. He prosecuted at Nuremberg while still a member of the Court.

I'll assure you that the framers NEVER envisioned SCOTUS having the kind of power the Court weilds today. The Court has gotten ahead of the politics on so many issues that it is looked upon by most as just one more body of politicians. The concentration of unaccountable power in those nine lawyers should be repugnant to any true small "r" republican.

So what's the solution to make them more accountable? More, easier impeachments? Elections? I kind of think that anyone can catch black robe fever regardless if the job is a lifetime appointment or an election because we're just not Vulcans. We can't fully divorce our own failings from the decision. I guess I just end up hoping that the person who gets the nod for the judge role is the best at minimizing those personal preferences when making decisions.

Don't get me wrong, I am disappointed by the nomination of Miers. It appears to be a politically weak move and you have to wonder if this person (who is probably a whole heck of a lot smarter than I am) will have the ability to persuade with the force of her arguments enough to bring folks over onto her side. So what if she's tough as nails, she's got to be able to sway the other people on the court and I kind of doubt that barking orders to Ginsberg will be very effective. I know I should trust Bush on his choice, but it just seems like such a missed opportunity.

As Newell astutely pointed out, the real travesty here is the missed opportunity to appoint another Hugo Black to the Court. Surely there are hundreds if not thousands of candidates, both jurists and non-jurists, who are better qualified for the Court.

I have nothing against Harriett Miers personally. I just don't think she is what we as a country need on the Court. That her elitist connections are the reason for her consideration offends me, and portends poorly for the thought that she would be able to set aside personal opinions on the issues that confront the Court.

[This message was edited by Greg Gilleland on 10-05-05 at .]

In selecting justices, the President has certainly managed to pick the two extremes. On the one hand, CJ Roberts walked in virtually without comment. On the other hand, Miers doesn't seem to make anyone happy. Will she survive scrutiny? But it is perhaps easier to tear down someone's choice than to suggest a proper alternative. Who should have been nominated? Who should be the back-up nomination?

My choice would be someone very non-controversial, middle of the road, like Ann Coulter.

Ann Coulter certainly has the brains to be a Supreme, and she seems to have a very well defined sense of what the Constitution requires and does not require. She would not be some crazed know-it-all who would insist that her personal beliefs are required by "emanations" coming out of the pnumbra of the Bill of Rights.

I think she would be an excellent choice except for one thing. She does not suffer fools very easily, and therefore, I think she would have a very difficult time getting along on the S.C.