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October 07, 2005

Miers' Favorite Justice? "Warren"

Uhhh, super-liberal architect of 50's-60's liberal judicial activism Earl Warren or not-terribly-well-respected conservative CJ Warren Burger? The latter, Miers offered, when pressed to clarify.

Jim Lindgren of the Volokh Conspiracy finds either answer troublesome.

Warren Burger, though a doughty conservative, was not a great thinker or jurist like Scalia or, dare I say it, Clarence Thomas. He was overtly political, delighting in loading his opinions with what he called little "stingers" -- bits of politically-charged dicta that were supposed to advance the conservative position. But dicta doesn't really count for all that much in jurisprudence.

He was also known as a bit of gamer, as he would join the majority holding (often liberal) even if he disagreed with it, so he could assign the opinion to himself, and then he would write an opinion in a cramped, narrow fashion, thus limiting the damage, so to speak. I guess I can't fault him too much for that, but it was kinda dirty pool, and I don't think it worked too well as a tactic. Liberal justices citing precedential opinions he penned could just kind of ignore most of his actual opinion and cite the holding. Or cite instead the more expansive concurrences with his opinion penned by actual liberals.

However much liberals hate Scalia, they almost always give the man his props-- his opinions and dissents are absolutely brilliant, brilliant in analysis and often in genuinely-fun-to-read rhetoric. He's a craftsman of both the law and the English language.

Warren Burger, on the other hand, was just a guy on the court.

Sorry, it just doesn't look like Harriet Miers has spent much time reading or thinking about constitutional law.

Thanks to the Blogometer.



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posted by Ace at 01:40 PM

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