Irrespective of one’s evaluation of the wisdom of the Harriet Miers Supreme Court nomination, the cause of the nomination at best is not furthered by misleading advertising or advocacy.
Indeed, it is a troubling sign of the times that anybody, regardless of viewpoint, would think it culturally acceptable or objectively advisable to besmirch the dignity of the Federal Judiciary by publishing or otherwise circulating advertisements pro or con. Worse, some of the advertisements factually are misleading and appear designed to appeal to a minimally literate readership as though a Supreme Court nominee were a candidate for elective office in an election in which every vote counted equally, however ignorant or stupid the voter may be.
A full-page advertisement in THE WASHINGTON TIMES (October 20, 2005) is illustrative. Of course, the paper is within its rights in publishing the ad inasmuch as the ad is presentable, nondefamatory and graphically well designed. The ad recites it was “Paid for by Progress for America, Inc.[,]” the website of which describes it as a [26 USC] § 501(c)(4) entity, meaning essentially lobbying activity. Presumably those who paid for the ad think its publication in a paper of some 106,000 circulation, mostly in and around the Nation’s Capital, would help the nominee. Unfortunately for her cause, the ad and others of like shallowness may hurt more than help.
The ad lists six alleged Supreme Court Justice qualifications. The ad then checks off as between the nominee, the late Justice Byron [R.] White, the late Chief Justice William [H.] Rehnquist and Justice Clarence Thomas as to six allegedly pertinent qualifications. The choice of the three Justices with whom to compare is somewhat insulting, surely ungracious and patently grasping.
“Major Experience Outside the ‘Judicial Monastery’” is the first qualification - derogatorily if cleverly worded; all four rate checks. This qualification certainly is arguable. Thus, cleverly designed, the six tests start off misleadingly well.
To an experienced lawyer the second qualification is laughable and absurd: “President of a State Bar Association[.]” (Having been president and chairman of various law organizations, including four years as an American Bar Association Governor, this writer would not unduly minimize the value of such experience.) The grasping of this criterion becomes clear when the reader looks at the checks: Only the nominee was president of a state bar association. Poor, hapless jurists like John Marshall, Joseph Story, Louis D. Brandeis, Charles Evans Hughes, Felix Frankfurter, William H. Rehnquist and all the others in history - they never served a state bar association president.
“Specialized in Commercial Law” is borderline - useful experience, of course, but hardly a sine qua non. When we note the late Chief Justice Rehnquist rates no check we see why the ad-writer thought up that one.
“Political Experience” - whoops, it’s undefined. Everybody gets a check so the nominee is equal to all of them. In fact, only the nominee ran for political office - the Dallas City Council. Nobody ever seriously claimed that any of the other three had “political experience” as impliedly defined but the ad-writer doubtless calculated that the nominee needed more lifting up.
“Executive Branch Appointee” rates another four checks. Not surprisingly, there is no detail in the claimed comparison. The nominee held three White House staff positions, one not particularly significant. The three Justices, respectively, had been Deputy Attorney General of the United States (effectively running the Department of Justice in the absence of an Attorney General who knew much about law or administration); Assistant Attorney General, Office of Legal Counsel (the top scholar’s job in Justice); and chairman of an independent regulatory agency - all three, of course, unlike the nominee, having held offices to which they had been nominated by the President, confirmed by the Senate.
“Proven Conservative Judicial Philosophy” generates another four checks. But the nominee never has been a judge; apparently never has written a law-review or similar scholarly article addressing judicial philosophy; never has lectured to lawyers, academics or law students about judicial philosophy. So who knows?
The ad concludes with five strained, desperate and only partially accurate little editorial blurbs, seeking to equate the nominee’s achievements to those of the three Justices. The text is too amateurish to merit discussion.
The nominee may be well qualified. Objective judges, lawyers and, one hopes, Senators, await the Senate Judiciary Committee hearings and further evidence. Meanwhile, those who, however nobly intended, appeal in print to the lowest intellectual denominator should cease and desist, lest in demeaning the nominee and the Court they harm more than help the nominee. Besides, as a Washington reality, what United States Senator or key Senatorial employee or advisor is likely to be favorably impressed by a superficial and grasping ad in a Washington newspaper?
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