Prof. Bainbridge's poll on Harriet Miers

Prof. Bainbridge is running a poll on whether Harriet Miers should be confirmed to the Supreme Court.  The choices are "for," "against," and "wait and see."  I found it remarkably difficult to select an answer.  I'm not "for" her, but I'm not sure if I'm "against" her or if I'm in "wait and see" mode.

So much has been written on the various merits or demerits of Ms. Miers that I'm not inclined to add to what's out there, apart from a few brief thoughts:

- It doesn't bother me that she went to SMU for law school.

- It doesn't bother me that she's never been a judge.  Given the composition of the Court as it is, there's something to be said for a justice with significant trial-level litigation experience.  Maybe someone like that would have steered the Court away from the disaster that Clinton v. Jones turned out to be.  ("Uh, hold on a minute guys.  I don't think you understand how discovery works.  Of course, it's going to be a distraction for the President to let pre-trial discover proceed in this case. . . .")

- But does Ms. Miers have significant trial-level experience?  Citing the WSJ's John Fund (hardly an unbiased source; he appears to be on jihad to detail the nomination), the Baseball Crank is concerned:

Bruce Packard worked with Ms. Miers as a partner at the Dallas firm of Locke Liddell & Sapp for a dozen years from 1985 to 1997. He calls Ms. Miers is a "very good moral person," but says her real skills at the firm were networking and climbing the rungs of the local and state bar association hierarchy. She rarely tried cases and most of her work for corporations was to serve as the local counsel for out-of-state companies that needed someone familiar with local Dallas judges.

(emphasis in the Crank's post).  If Fund's description is accurate, then I think it's much harder to press the case that Prof. Althouse did in her "mellowing on Miers" post, wherein she asks:

Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk? Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer's methods to resolve the problem at hand. What is wrong with having that style of analysis in the mix? We need a safeguard against the excessively theoretical.

I suppose this puts me in the "wait and see" camp (just went ahead and voted).

UPDATE: In the interest of fairness, I should point out this news story that suggests that Ms. Miers in fact does have significant litigation experience:

Harriet Miers spent nearly three decades in private practice for a Dallas law firm, representing The Walt Disney Co. and Microsoft Corp. among major clients and arguing on behalf of the software giant in an important Texas case over class-action lawsuits.

Most of the cases the Supreme Court nominee handled were settled before they went to trial, her former law partners say. Those colleagues and lawyers who opposed her remember Miers for her preparation and attention to detail. Her record as a pioneering female lawyer also boosted her standing in Texas.

Comments

[P]

It wouldn't bother me at all that Meirs attended SMU for law school, so long as she proved her intellectual weight elsewhere - say, by entering academia, judging or as a Supreme Court clerk or something. The nice thing about elite law schools is that there's no room to doubt the brilliance of one of their graduates.

As politically incorrect as it is to say, that level of certainty can't be (honestly) said about SMU. It strikes me as odd that this has become a touchy point in public - perhaps our fear of offending has overcome our common sense.

What proof do we have that Meirs will fully comprehend the issues presented to her as a justice? She might do fine, no doubt. But "might" is nowhere near good enough for one of the 9 pillars of our system of justice.

[H.]

Do her viewpoints matter? She worked for big corporations, wouldn't that steer her feelings for many constitutional issues toward corporate interests?

[tom]

Was there this much gnashing of teeth when Warren Burger was nominated? He was an alumnus of William Mitchell, after all, which gives Mitchell one Supreme Court justice more than a lot of other law schools considered more elite.

[Tung Yin]

Well, Warren Burger had been a Court of Appeals judge for 13 years before ascending to the Supreme Court, so he's not a good precedent to invoke re Miers. Besides, I don't think Burger is thought well of as a Justice (certainly not as a Chief Justice), so linking him to Miers is just more damning with faint praise.

[Crank]

I believe liberals probably sneered at Burger at the time - certainly some of my professors in law school were still sneering at him. Conservatives back then just wanted a "law and order" guy and didn't have a developed constitutional ideology of their own.

[BDM]

Wait and see. She seems like such a blank slate when it comes to things that matter in a nominee that I don't see how a judgment can be made at this time. Seems to me she needs to demonstrate (1) her competence to sit on the Court (i.e., show she's not an unqualified lightweight), and (2) her independence (to remove the cronyism tag). The jury (or at least the Sen. Judiciary Comm.) is still out. But the burden is squarely on her shoulders to demonstrate her worth.