By Dan Kennedy • The press, politics, technology, culture and other passions

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Boston lawyer Kevin P. Martin, a former clerk to U.S. Supreme Court Justice Antonin Scalia, offers a novel argument as to why we shouldn’t worry about White House counsel Harriet Miers’ dubious credentials: Being a Supreme Court justice isn’t all that hard. I’m not making this up. Writing in the Boston Globe, Martin asserts:

MARTIN: The qualities needed by a Supreme Court justice are not necessarily those needed by an advocate or scholar. By the time the court agrees to take a case, it has already been the subject of rounds of litigation in the lower courts. Indeed, the court generally will not even take a case unless the issues it raises have already been addressed by several federal courts of appeal and state supreme courts. When the court takes a case, the issues it raises have already been well developed and the arguments on each side honed.

Moreover, cases argued before the court are the subject of extensive briefing by the well-qualified members of the Supreme Court bar and the federal and state solicitors general. Each justice also has a staff of four experienced law clerks, top graduates of the nation’s most prestigious law schools, to assist them in synthesizing and analyzing the pertinent lower-court opinions and briefs as well as the court’s own precedents.

In other words, if President Bush had appointed Miers to, say, the First Circuit Court of Appeals, she’d be in over her head. But the Supreme Court? No problem – most of the legalistic heavy lifting has already been done, and the rest can be handled by the kids.

Somehow I don’t think Team Miers is going to be showing Martin’s piece to skeptical senators.


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6 Comments

  1. Ajay

    Although its true in theory, this does notpan out in real life. Take the case of Brown/FEMA or even our President. They supposedly have all the good and expreienced people working under them but they themselves were/are cluless about everything that is important and requires *significant* experience. If the person in this position is thought to be mediocre, it will only breed discontent all around.This position should be held by someone who is very experienced in this field and understands the repercussions of even a minor decision. This should not be about experience vs no-experience or right vs left.

  2. Chuck Tanowitz

    This is hilarious in some twisted way. Basically he’s saying “it’s okay if she lacks any real legal intelligence because everyone around her is smart.This is similar to the strategy the Republicans used a few years ago where the message that got out was that Bush surrounds himself with the most intelligent people, and while he may not read the news, those around him do and tell him what he needs to know.I guess if you pass the buck far enough, then no one is really to blame.

  3. Anonymous

    I echo some of the views above.it is utterly embarrasing for our country, for however great it is and full of great legal minds of all colors in thinking, that we should suffer an appointment just because her influence and vote is basically diluted by and propped up by others in the bench and she doesn’t need to be a genius star.First of all, I find this comment very mysoginistic, that it is ok to let this woman go by, we know she is not qualified and ain’t going to make a whole lot of difference . She is a trophy pick for poklitical convenience and minority maneuvering. This is BS.Second, this is so embarrassing to even conceive of and for that reason, this lawyer should call for her stepping down , NOT promoting her if he thinks she is a non-factor.Third, thank you for shining a light on this incompetent. I am sure he lost a couple of notches of respect.My take on this, is that this is the easiest fight he can take on. He cansort of dare his base to reject her and give them all a collective black eye politically in which case, he wouldn’t take all the blame in a mid-term election democrat Capitol Hill gains or even leadership change.He can’t pick a Luttig, he already had his way with Roberts. He can’t pick an almost liberal judge as that would go against his bravado of not showing any sign of concession to the Dems. That would be just as devastating to his base support.MOSt importantly, the reason I think he is going the Miers way, is that there is a serious chance that a- with 37% approavla rating now and failure all around, Dems could take over one or two leadership reins from the GOP b- and that could really trigger a serious threat of impeachment or censure proceeding. At the very least, serious challenges to some passed law the Admin hs been really insisiting upon.In that case, either Miers should recuse herself since a lot of those matters passed through her desk for benediction. Or she would vote in favor of the Admin and is a SAFE vote NOT to further damage any proceedings against the White House.He is stacking the court now not because it is the Right’s hope for the last few cycles to tilt it further right, but because of self-preservation at this point given the screw ups piling. THAT’s the importance of this real personal and coloquial link to him personally.In ideal scenarios, can you imagine ANY candidate being a STRONG pick if he has ANY closeness to a sitting president.. That would be a non-starter in so many past Administrations given typically the American publics skepticism of such cozying up and the need to sepreate Judicial and Executive powers.Everyone got in a tizzy just because Cheney went on a Duck hunting trip with a Justice, but this is OK???I don’t think so.As it stands right now, there is a 50-50 chance she’d “withdraw ‘voluntarily’ so as to no put the President, ‘My friend’ in a hard political position and give the president more felxibility to move the country’s business further.” (Sounds familiar??)N.

  4. Anonymous

    Supreme Court Justices have always been political appointees and law clerks have always done the heavy lifting. This is hardly a revelation.

  5. Anonymous

    The qualities needed by a Supreme Court justice are not necessarily those needed by an advocate or scholar. _______________________________________It seems like the right is doing whatever it takes to get as many stupid people as possible in positions of power.

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