The 2,000th Death Lie

While everyone on the left is apparently eagerly preparing for the inevitable story of the "2000th American death" in Iraq -- here is Reuters' salivations -- it might be worth mentioning that the entire story will be based upon a little white lie. As of October 15, 2005, there had been 1970 deaths in Iraq. That much is true. But what none of the stories will tell you is that 436 of these deaths were "accidents/other deaths," meaning deaths from car accidents, training accidents, illnesses, suicides, murders, etc. Such deaths, of course, happen all the time to human beings and, given the fact that we have 150,000 or so Americans in Iraq, it is not surprising that several hundred of them would die in accidents or from illness or suicide or murder, etc., over the course of a two-and-a-half year period. In other words, the 2,000 Death Meme that the media will push will include probably around 450 deaths that would have happened anyway had the same soldiers been stationed in Madison, Wisconsin, or Ann Arbor, Michigan, or Berkeley, California, or some other bastion of the peace-at-any-price Left.

The 1534 deaths in actual combat over a period of 31 months work out to almost precisely 50 deaths a month. I know these deaths are tragic for the families involved, and our prayers are with them, as well as our thanks for their sacrifice. But individual tragedy and foreign policy as enforced through military capability are two different things. The reality is that this number of deaths is extraordinarily low by any rational historical standard... the equivalent of losing about two platoons a month. This amount is not just easily replaceable from a military readiness perspective, amounting to 1/3000th of our troops on active duty in Iraq. It is undoubtedly within the margin of error of the Pentagon's estimates of how many troops are battle-ready at any given time in Iraq.

Meanwhile, the Left apparently believes that any loss of life in military action is per se indefensible, regardless of the cause. A good question for future Democratic Presidential candidates would be: Is there any series of events short of an invasion of the Continental United States that would bring the current Democratic Party to use military force?

Miers' Qualifications II

People who are commenting negatively on Miers' qualifications should also consider the following likely calculus that went on in the White House:

1. We are replacing Sandra Day O'Connor.

2. Because we are replacing a woman, and because we recently named the apotheosis of the buttoned-down white male Republican, John Roberts, to the Court, there is pressure to name a woman to replace Justice O'Connor. This pressure may not be right in some alternative universe, but the politics of gender, wrong-headed as such politics often are, are nevertheless real politics, and the pressure on the White House to name a woman was real pressure.

3. Republicans already have difficulty attracting women voters. (Not as much as Democrats have attracting male voters, but that's a different story.) How many Republican Senators running for re-election in 2006 want to have commercials against them saying that the only woman on the Supreme Court was nominated by a Democrat (Ruth Bader Ginsburg) and if you want more women on the Supreme Court, you'd better elect more Democratic Senators? How many of them communicated that they wanted to see a woman nominated to the President?

4. So, we had better nominate a woman. But who should that be? Let's look at federal appellate court judges.... hmmmm, Janice Rogers Brown? She hasn't been on the court all that long and is a bit of a loose cannon. Maura Corrigan? No one knows her. Edith Jones? Edith Clement? I interviewed them before and they weren't so hot. Diane Sykes? Criminy, she's a divorced woman who was married to a right-wing talk show host... do we really need that crap. Come to think of it, we vetted all of these names before when we were considering Roberts, and some of them said thanks, but no thanks, and others had serious problems that might come up in their confirmation hearings! And, for the rest, we frankly don't trust them much not to turn into another O'Connor or another Souter. What do we do now?

What you do now is nominate White House Counsel Harriet Miers, with whom you have worked closely for ten years and whom you trust.

In sum, what if all of the conservative punditry is simply wrong. Harriet Miers might not have been the best candidate in the best of all possible worlds (which we don't live in). But she might have been the best nominee available on the particular planet on which we live.

UPDATE: John Fund in the Wall Street Journal echoes this conjecture, albeit with some actual reporting:

What is clear is that the same White House that says it won't listen to senators who tell them the Miers nomination should be withdrawn was highly solicitous of Senate objections to other qualified nominees. One federal judge was nixed by a powerful senator over a judicial opinion that would have been attacked by feminists. Priscilla Owen and Janice Rogers Brown, both of whom won tough confirmation battles for seats on appellate courts only this spring, were nixed by other GOP Senators as too tough a battle for the high court. Alice Batchelder of the Sixth Circuit was deep-sixed by an old Ohio political rival, Republican National Committee co-chairman Jo Ann Davidson. The White House and some senators deemed Edith Jones of the Fifth Circuit too difficult to confirm. Given Mr. Bush's idée fixe that the nominee had to be a woman, it's possible the White House allowed itself to be pushed into a corner in which Ms. Miers was literally the only female left.

Which is it Re Miers?

If I remember correctly, conservatives (correctly) argued that it was inappropriate to ask John Roberts about his views on particular cases/issues that were likely to come before him as a Justice of the Supreme Court. We weren't supposed to know what his specific views were, based on the "Ginsburg Rule," i.e., Ruth Bader Ginsburg's similar refusal in 1993 to tell the Senate what her views on Roe, etc. were. Now, if I understand what everyone is saying, Harriet Miers is not to be trusted as a nominee because we don't know how she will rule on particular issues. So which is it?

Miers' Qualifications

With all the talk of how Harriet Miers is unqualified to be a Supreme Court Justice, it seemed to me to be a useful exercise to ask a few comparative questions:

1) Miers would replace Sandra Day O'Connor. How "qualified" was Justice O'Connor when she was nominated by President Reagan in 1981?

2) President Bush promised to nominate a justice like Clarence Thomas. How "qualified" was Justice Thomas when nominated?

3) Conservatives want to avoid another Souter. How "qualified" was Justice Souter when he was nominated?

4) The presumption in the media and blogosphere is that Miers is substantially less qualified than all of the sitting members of the Court were when they were nominated, especially Justice Roberts, who is painted as a kind of super-hero of the law. Is any of this true?

The biographies of the Justices are available at the Supreme Court's webpage. I have reviewed the relevant "experience" of each prior to being named to the Court, considering their law schools, their experience as a judicial clerk (usually fresh out of law school), their experience in private practice, as prosecutors, in academia, as leaders of bar associations, in elective office, in the Executive branch, in the White House, and, finally, as a Judge.

Five justices went to Harvard Law School, and one each to Columbia, Yale, Northwestern and Stanford. Miers' degree from SMU is not as good, if that sort of thing means anything to you. To me it can just as easily mean that she wanted to stay in Texas near her family. We have lawyers in our firm who went to Harvard and we have lawyers who went to Wisconsin and Marquette and Minnesota and Loyola, etc. There are very very good lawyers who went to Marquette and mediocre lawyers who went to Harvard.

Three justices had been clerks for Supreme Court justices, Roberts, Breyer and Stevens, and Ginsberg had clerked in a District Court. Five other justices did not clerk, so Miers would not be alone here. Again, I don't think this thing matters that much if what you care about is the merit of the nominee at age 60.

Four justices have substantial academic experience as professors, Ginsburg, Scalia, Kennedy, and Breyer. The other five have none. Again, Miers would not be alone. However, I would agree that a significant tenure in academia thinking and writing about the subject matters that are likely to come before the court is an important qualification. However, I would also bet dollars to doughnuts that the vast majority of the pundits talking about Harriet Miers' qualifications have never read a word of academic writing written by any Supreme Court justice.

Miers would be the only judge without any judicial experience, which I also agree is an important qualification, particularly experience on the federal appellate bench. However, and somewhat surprisingly, only three justices had 10+ years of experience on federal courts of appeal, Kennedy, Ginsberg and Breyer. Stevens had five years as a Judge on the Seventh Circuit; Scalia had four years as a judge on the D.C. Circuit; Roberts had only two years on the D.C. Circuit, and Thomas had only a year and a half on the D.C. Circuit. Souter had 12 years as a state court judge in New Hampshire, but O'Connor, whom Miers would be replacing, had only 6 years on Arizona state courts, and never on its highest court. (Interestingly, Souter and O'Connor are the only justices who have ever actually heard a case as a trial court judge, but I've run into a lot of trial court judges in my practice, and while I have high regard for many of them, there are a lot of them who aren't so hot, so I can't say that's a great qualification.) Again, however, I would note that it's a safe bet that the majority of the pundits in the media and the blogosphere have never read a single opinion written by any of these judges before they came to the Supreme Court, and very few of their Supreme Court opinions.

On the other hand, Miers by far has the most experience in the private practice of law; she is the only one of these lawyers who has managed any kind of law firm, much less a 400+ lawyer firm. It is fair comment to say that most, if not all, of the others are the legal equivalent of hot-house flowers, operating in relatively rarefied air.

In addition, Miers by far has held the most significant leadership positions in her local and state bar associations. The only other justice who appears to have any similar experience is Justice Stevens, who was Second Vice President of the Chicago Bar Association for a year in 1970. It is significant to me that her colleagues who knew her work in Texas thought enough of her to elect her President of her local and state bars, although I would also note that many very good lawyers aren't that interested in doing bar work.

Only O'Connor and Miers have ever held elective office, O'Connor as a two-term member of the Arizona State Senate, and Miers as a one-term member of the Dallas City Council. I do not view either of these low level positions as particularly important.

Finally, Miers by far has the most significant executive branch experience and the only significant White House experience. Roberts was associate counsel to President Reagan as a very young lawyer 20+ years ago. Miers is White House Counsel now. No contest. This is particularly important as a qualification, I would posit, in wartime.

Here's my conclusion. If "qualifications" are viewed objectively, and if you accept my premises that the most important qualifications are, in order, (a) significant experience as a federal appellate judge; (b) significant experience as a law professor; (c) significant recent experience in the White House at a high level; and (d) significant success in the private practice of law, I would say that Harriet Miers is more qualified than Justices O'Connor, Thomas and Souter were when they were nominated; as qualified as Stevens and Roberts; and less qualified than Kennedy, Ginsburg, Scalia and Breyer.

The one that may jump out at people there is my conclusion that she is as qualified as John Roberts. Here is my reasoning. Roberts was a law clerk for the Supreme Court, but I discount anything that anyone does in their 20s as immaterial to their merits in their 50s other than as disqualifiers. He didn't disqualify himself in his 20s (I did!), but neither did Harriet Miers. Roberts also had some significant White House experience, but not nearly as significant as Miers, and obviously not as recently. On the other hand, Roberts has been a judge, while Miers hasn't. But Roberts has only been a judge for two years, and I don't consider that experience to be a huge counterweight to Miers' more significant White House experience. So the comparison thus would boil down to whether I think Roberts' experience arguing before the Supreme Court as Deputy Solicitor General and in private practice outweighs Miers' private practice experience trying cases and arguing before lower courts. I think the difference is largely a function of your job description and the types of clients you have, not a significant predictor of ultimate merit as a Supreme Court justice.

Note: none of this has anything to do with her ideology, or how I think she would vote on any particular issue. I am simply trying to look objectively at the resumes.

UPDATE: It turns out that Miers was a law clerk for a federal district court judge for two years, just as Ginsburg was. I learned this fact, by the way, from her answers to a questionnaire for the Judiciary Committee, which makes for interesting reading. Again, while her qualifications are still not the equal of Scalia, I continue to believe that a fair reading of her resume and her list of fairly significant accomplishments as detailed in the questionnaire suggests that she is well-within the range of qualified Supreme Court justices.

Bush's Nominees and the Miers Kerfuffle

In considering Harriet Miers' nomination to the Supreme Court, it is worth remembering that President Bush has shown a remarkable ability to think outside the box in making high-level appointments. Arguably the four most important appointments during his Presidency have been: (1) Dick Cheney as Vice-President; (2) Don Rumsfeld as Secretary of Defense; (3) Condoleeza Rice as National Security Advisor and then Secretary of State; and (4) John Roberts as Chief Justice. While there may be some quibbles, I think conservatives generally are very supportive of all of these appointments -- indeed, many of the same blogs that are savaging Miers for having "never been a judge before" are also supportive of Condoleeza Rice running for President in 2008, although she has never run for elective office before nor had any executive experience. But the point is that none of these appointments would have been predictable by the punditocracy. Even in the case of Roberts, remember that he was initially appointed to replace Justice O'Connor -- a white male Ivy League insider conservative replacing a female Westerner moderate.

President Bush has gone against the collective wisdom of the chattering classes before, with good results. I think conservatives owe him a high level of deference in his choice of Miers, barring the discovery of some new facts about her or an egregiously bad performance before the Judiciary Committee.

By the way, I think the expectations for Miers are so low that it's a safer bet that she will exceed the expectations by a spectacular margin and put many of the current naysayers to shame. I mean, really, do you think that (1) becoming managing partner of a major law firm, and (2) arguing major cases for major corporate clients over 30 years, and (3) being elected the President of the state bar association, and (4) being the personal lawyer to the Governor of a major state who is also extraordinarily well-connected to national power centers, and (5) doing such a good job that he chooses you to bring with him to Washington when he becomes President as his staff secretary, and (6) you do such a good job in that that he makes you White House Counsel, and (7) that you do such a good job in that that he puts you in charge of vetting judicial nominees like John Roberts et al., and (8) that you do such a good job at that that he decides to nominate you even though doing so will undoubtedly be perceived by the know-it-alls at National Review Online (what are their resumes again?) as cronyism.... do you think all that suggests a person who is likely to wilt in the Judiciary Committee? Do you really think that suggests a person who isn't intelligent?

Much of what passes for intellectual commentary from NRO and other places smacks of the guys we all know who are 40-something and haven't had the careers they dreamed of, which they think is unfair because, as they will be quick to tell you, they had really really high SATs and went to really really good schools that were really really hard to get into. So they look at people like Miers who (they think... but on what evidence?) aren't as smart as they are, but have nevertheless risen to higher positions, and they whimper "not fair," like my eight year-old.