The Samuel Alito Seat

The National Women's Law Center says it will attempt to thwart Alito's confirmation with a multi-million dollar media blitz that will hit two points: Alito's judicial record, and making "sure the American public understands that this is for the Sandra Day O'Connor seat."

But if Alito has been nominated for the "O'Connor seat," then it's equally true that O'Connor occupies the Potter Stewart seat, since that's the justice O'Connor replaced. But of course she doesn't really occupy the Potter Stewart seat since Stewart was merely occupying the seat of Harold Burton, who occupied the seat of Owen Roberts, who took the seat of Edward Sanford, who took that of Mahlon Pitney, who took the seat of John Marshall Harlan, who took that of David Davis, who occupied the seat of John Campbell, who had the seat of John McKinley, who was the first to occupy the new seat created when the Supreme Court was expanded from six to nine justices in 1837.

It doesn't have the same ring to it, but Alito has been nominated for the McKinley seat. He'll undoubtedly be heads and shoulders above all of its former occupants, none of whom left a lasting mark on the law. (Though Harlan and Stewart both have a couple of famous cites to their credit.)

Alito

I wish I had more to say about the time that I met Judge Alito. It was the fall of 1998, and he called me for a clerkship interview. My wife and I drove from Boston down to Newark, had the interview, and drove back. Judge Alito was very affable and friendly, and I enjoyed talking to him, but unfortunately I don't really remember much about the conversation. I do remember two things quite clearly:

1) We saw two gentlemen having a knife fight on the street. This was while we were driving to the courthouse.

2) Judge Alito's clerks volunteered (half-joking, half-seriously) that one of the nice things about the clerkship was that "you always get to leave by 5, because it's too dangerous to be around the courthouse after dark."

Precursor to Rosa Parks

In all of the (deserved) praise of Rosa Parks on her death, hardly anyone seems to remember that she wasn't the first person to refuse to abide by segregation rules on public transportation systems. I did a bit of Googling, and I can't find any website that mentions the following story, which I'm retyping from page 190 of Earl Lewis's book In Their Own Interests: Race, Class, and Power in Twentieth-Century Norfolk, Virginia:

In one case, bus driver Clyde Horner noticed Sara Morris Davis, a black schoolteacher, seated between two white passengers at the front of the bus. Horner told her to vacate her seat immediately. Reportedly in a firm but even voice, Davis explained to the driver that the bus was full and that the seat in front was the only one available. Where else, she asked, was she to sit? The driver answered gruffly that he did not care, as long as she vacated that particular seat. She refused, the police were summoned, and she was arrested.

Upset by the entire episode, Davis initiated one of the first legal challenges to a state's segregation laws, a decade before the now-famous Montgomery bus boycott, which sparked the direct action phase of the civil rights movement. Davis's attorney contended that the bus driver willfully ignored a white passenger sitting in the black section and enforced the law in only one direction. The Virginia Supreme Court of Appeals agreed with Davis, in a June 1944 split decision. It ruled that the law was to be enforced in a nondiscriminatory manner. Thus, in this narrowly focused case, the court decided that the actions of the bus drivers -- and not the law -- discriminated.

Scalito?

Shannon Duffy of the Legal Intelligencer has this article about potential Supreme Court nominee Samuel Alito of the Third Circuit:

On the hot-button issues, Alito has been consistently conservative -- so conservative that some lawyers have given him the nickname "Scalito." Roughly translated, the nickname means "Little Scalia," suggesting that Alito has modeled his judicial philosophy after Supreme Court Justice Antonin Scalia.
* * *

In the media frenzy that accompanies any Supreme Court nomination, Alito's nickname is sure to surface. One Internet Web site is already poised to cash in on opposition to many of the potential nominees with a line of bumper stickers. Among the offerings is one that reads: "There's a reason they call him 'Scalito.'"

In some ways, the "Scalito" moniker hits the mark. In his 13 years on the 3rd Circuit, Alito has earned his stripes as a strong and intelligent voice on the growing conservative wing of a court once considered among the country's most liberal.

And as with Scalia, lawyers say Alito's vote is easy to predict in highly charged cases. But where the nickname misses is temperament, or what some might call personality. Both on the bench and in person, Alito is no Scalia.

Although he's a frequent dissenter and not at all afraid to disagree with his colleagues, Alito's opinions are usually devoid of passion. And his tone during oral arguments is probing but always polite -- a sharp contrast from the often-caustic tone adopted by Scalia both on the bench and in his dissents.

Oddly enough, the "Scalito" nickname seems to have caught on even among some conservatives who appear to use it as a compliment.

And oddly enough, Shannon Duffy was the first person to coin the nickname "Scalito" in the first place. In a comment to one of my earlier posts questioning the origin of the "Scalito" nickname, Mr. Duffy left this comment:

I'm the one who nick-named Alito "Scalito." The National Law Journal article you refer to was written by Joseph Slobodzian. At the time, he and I were both reporters covering the federal courthouse in Philadelphia - he for the Philadelphia Inquirer and I for the Legal Intelligencer. He did some freelancing for NLJ and we had several discussions at the time he wrote that article. I knew as soon as it was published that my nickname would stick, but I never would have guessed just how popular it would become.

Nigerian email

I hadn't seen a Nigerian scam email with such a heavily Christian focus before:

No.35 Johnson street,
Ikeja-Lagos,
Nigeria.
Tel:234-803-344-0855

Dear in Christ,

There is joy in my heart that I have accepted Jesus Christ as my Lord and
personal Saviour,now I am born again.Having received Christ,I also found
out that it is a great priviledge to be a financial pillar in the Kingdom
of God.Even though I was in the world or acquired my wealth when I was in
the world but I have known the truth and the truth have set me free.Now
that I am in christ and christ is in me,old things are past away and all
things become new.

During my prayers and deliverance moment,the Lord ministered to me to
purify my wealth and give it out to a ministry for the expansion of the
Kingdom of God for his name to be glorified.I am in search of a faithful
and dedicated christain or ministry with great urge to work for God with
my wealth.

It is very difficult to work for God faithfully and honestly mostly when
it involves money because the love of money is the root of all evil.Do not
be carried away,I will like you to pray over it before responding to me.
When I receive your response,I will tell my testimony,I will tell you more
about myself,I will tell you about the fund and how you are going to
receive it. If you find yourself worthy to utilise the fund,let me have
your full names,address and your telephone numbers. myalternative email
address is(michaelokechi1@libero.it)for security reasons.

May God bless you as I await your response.

Thanks.

Brother Michael Okechi.

Nice touch, referring to the love of money as the root of evil.

New Paper on Statistical Discrimination

Employer Learning, Statistical Discrimination and Occupational Attainment

JOSEPH G. ALTONJI
Yale University - Economic Growth Center; National Bureau of Economic Research (NBER) 2005

Yale Working Papers on Economic Applications and Policy Discussion Paper No. 3


Abstract:
I examine the implications of employer learning and statistical discrimination for initial employment rates, wages, and occupational attainment and for wage growth and occupational change over a career using a model in which the sensitivity of productivity to worker skill is increasing in the skill requirements of the job and in which employers learn about worker skill more rapidly in high skill jobs. I show that statistical discrimination influences initial employment rates, wage levels and job type, and that employers' initial estimate of productivity influences wage growth even in an environment in which access to training is not an issue. The implication is that the market may be slow to learn that a worker is highly skilled if worker's best early job opportunity given the information available to employers is a low skill level job that reveals little about the worker's talent

Urban Education

This Jonathan Kozol article in Harper's is well-meaning. The education given to urban blacks is a crying shame. But Kozol's article is emotionally manipulative and ignores relevant facts and research.

For example, he spends a lot of time considering the problems faced by various New York City schools:

Dear Mr. Kozol," wrote the eight-year-old, "we do not have the things you have. You have Clean things. We do not have. You have a clean bathroom. We do not have that. You have Parks and we do not have Parks.

You have all the thing and we do not have all the thing. Can you help us?"

The letter, from a child named Alliyah, came in a flit envelope of twenty-seven letters from a class of third-grade children in the Bronx. Other letters that the students in Alliyah's classroom sent me registered some of the same complaints. "We don't have no gardens," "no Music or Art," and "no fun places to play," one child said. "Is there a way to fix this Problem?" Another noted a concern one hears from many children in such overcrowded schools: "We have a gym but it is for lining up. I think it is not fair." Yet another of Alliyah's classmates asked me, with a sweet misspelling, if I knew the way to make her school into a "good" school—"like the other kings have"—and ended with the hope that I would do my best to make it possible for "all the kings" to have good schools.

* * *

In the years before I met Elizabeth, I had visited many other schools in the South Bronx and in one northern district of the Bronx as well. I had made repeated visits to a high school where a stream of water flowed down one of the main stairwells on a rainy afternoon and where green fungus molds were growing in the office where the students went for counseling. A large blue barrel was positioned to collect rain-water coming through the ceiling. In one makeshift elementary school housed in a former skating rink next to a funeral establishment in yet another nearly all-black-and-Hispanic section of the Bronx, class size rose to thirty-four and more; four kindergarten classes and a sixth-grade class were packed into a single room that had no windows. The air was stifling in many rooms, and the children had no place for recess because there was no outdoor playground and no indoor gym.

It goes on and on in that vein. Then Kozol finally discussed the actual levels of spending in the above schools:

The present per-pupil spending level in the New York City schools is $11,700, which may be compared with a per-pupil spending level in excess of $22,000 in the well-to-do suburban district of Manhasset, Long Island. The present New York City level is, indeed, almost exactly what Manhasset spent per pupil eighteen years ago, in 1987, when that sum of money bought a great deal more in services and salaries than it can buy today. In dollars adjusted for inflation, New York City has not yet caught up to where its wealthiest suburbs were a quarter-century ago.

Hold on for a second there. Per-pupil spending has ranged from $8,000 in 1997-98 to $11,700 today. Yes, this is less than the $22,000 per pupil that is spent in one suburban district that Kozol cherry-picked. But how does it compare to the national and New York average?

Pretty well. The most recent statistics I could find show that the national (unadjusted) average per-pupil spending in 2000-01 was $8,859, or nearly three thousand dollars less than the Bronx schools. The New York average in 2000-01 was $11,938.

While this doesn't prove that the level of spending in the Bronx is adequate, it does raise the question: Are these schools really suffering from a lack of funds? Or does the real problem lie elsewhere -- mismanagement, bloated bureaucracies, etc.? Someone who is familiar with the reputation of the New York school system might suspect one of the latter explanations.

Also, as a more general matter, Kozol's habit of arguing by cherry-picked anecdotes isn't very reliable. In "Disparities in Public School District Spending, 1989-1990," the National Center for Education Statistics put out what is still the most recent study that mapped census data nationwide against school district spending levels. According to the executive summary:

More money is spent in districts with the highest percentages of minority students compared to districts with the lowest percentages of minority students ($4,514 versus $3,920). Although minority students in poverty are often viewed as those least served by current systems of public education funding, these findings suggest that while inequalities may remain for students in poverty, they do not appear to be driven by minority status.

There's no reason to think that the financial situation has changed for the worse since 1990, i.e., that minority school districts receive less per-pupil funding compared to non-minority districts.

Back to Kozol:

In Milwaukee, for example, virtually every four-year-old is now enrolled in a preliminary kindergarten program, which amounts to a full year of preschool education, prior to a second kindergarten year for five-year-olds. More commonly in urban neighborhoods, large numbers of low-income children are denied these opportunities and come into their kindergarten year without the minimal social skills that children need in order to participate in class activities and without even such very modest early-learning skills as knowing how to hold a crayon or a pencil, identify perhaps a couple of shapes and colors, or recognize that printed pages go from left to right.

If five-year-olds don't know how to hold a crayon, identify any shapes or colors, etc., they are facing a problem that is much more severe than the lack of universal pre-school, namely, a lack of minimally competent parents. Of course, that might make pre-school all the more necessary in such situations. (But it might not: Some recent research suggests that even kindergarten is not helpful in raising student performance in the long term. See here and here.)

Perhaps the most egregious passage is this:

Perhaps in order to deflect these recognitions, or to soften them somewhat, many people, even while they do nor doubt the benefit of making very large investments in the education of their own children, somehow — paradoxical as it may seem — appear to be attracted to the argument that money may not really matter that much at all. No matter with what regularity such doubts about the worth of spending money on a child's education are advanced, it is obvious that those who have the money, and who spend it lavishly to benefit their own kids, do not do it for no reason. Yet shockingly large numbers of well-educated and sophisticated people whom I talk with nowadays dismiss such challenges with a surprising ease. "Is the answer really to throw money into these dysfunctional and failing schools?" I'm often asked. "Don't we have some better ways to make them `work'?" The question is posed in a variety of forms. "Yes, of course, it's not a perfectly fair system as it stands. But money alone is surely not the sole response. The values of the parents and the kids themselves must have a role in this as well you know, housing, health conditions, social factors." "Other factors"—a term of overall reprieve one often hears—"have got to be considered, too." These latter points are obviously true but always seem to have the odd effect of substituting things we know we cannot change in the short run for obvious solutions like cutting class size and constructing new school buildings or providing universal preschool that we actually could put in place right now if we were so inclined.

There's quite a bit of scholarly literature on the effects of school spending on student performance. In fact, the Coleman Report ("Equality of Educational Opportunity") -- one of the biggest social science studies in history -- famously found that school spending didn't have much relation to student performance. Far more important were the characteristics of the student body as a whole. As the Coleman Report found, "the social composition of the student body is more highly related to achievement, independent of the student's own social background, than is any school factor."

There are lots of other studies -- some showing modest increases in performance from increased spending and some showing that increasing spending after a certain point has little or no effect. The most that one can say is that there are conflicting studies on the issue. And it is certainly not the sort of question that can be resolved by rhetoric to the effect that rich people "do not [send their kids to expensive schools] for no reason." Rich people buy lots of different things for their kids, but that doesn't guarantee that any one thing has an effect on academic performance.

Kozol ends the paragraph by saying that "cutting class size" is one of the no-brainer ideas that we "could put in place" if we wanted. Well, not so fast. Some research suggests that broad measures to reduce class size actually end up harming inner-city schools. For example, Jepsen and Rivkin found that when California tried to reduce class sizes, this meant hiring many more teachers, some of whom were less qualified or experienced. Plus, some inner-city teachers ended up moving to suburban schools to fill the new vacancies there. As a result, inner-city schools in California had fewer good teachers than ever, thereby shortchanging their students on the one factor that probably makes the most difference.

Finally, Kozol spends a good deal of time describing a "scripted teaching system" used in some inner-city schools. The passage is written with a sneering tone towards the very notion of a scripted and regimented program. Kozol concludes this passage by saying that such programs are "desperation strategies that come out of the acceptance of inequity," and that "[i]f we did not have a deeply segregated system in which more experienced instructors teach the children of the privileged and the least experienced are sent to teach the children of minorities, these practices would not be needed and could not be so convincingly defended."

What Kozol doesn't mention -- though it appears in a New York Times article that he links to -- is that "many of the schools' scores have climbed steadily since the program was introduced." (Perhaps that is what he means by his suggestion that the program is "convincingly defended.")

So Kozol's complaint here boils down to something like this: Because of de facto segregation, teachers are forced to rely on teaching methods that actually work, rather than having the freedom to experiment with less successful methods. This is a bizarre complaint.

Miers

Baseball Crank has a lengthy and persuasive post as to why he has decided to oppose the nomination of Harriet Miers to the Supreme Court. Worth reading.

Thomas Nagel on "A Priori" Belief

A reader draws my attention to this essay by NYU professor Thomas Nagel, who is perhaps most famous within the philosophical world for his classic paper What Is It Like To Be a Bat?.

An interesting quote:

Although I seem to be constitutionally incapable of religious belief, I find the contemptuous attitude toward it on the part of prominent secular defenders of evolutionary naturalism intellectually unreasonable. Unless one rules out the idea of divine intervention a priori (and setting aside the problem of evil), some version of the argument from design seems to me a perfectly respectable reason for taking that alternative seriously – no less so now that Darwinian theory has been elaborated through the great discoveries of molecular biology.

I believe there is something wrong with the way the dispute has been conducted, for example in recent arguments over the teaching of evolution in public schools. It is usually treated as if it were a dispute over whether the biological order proves the existence of a designer, and that is not the only way to see it. To be sure, the most famous use of the argument from design is as a proof of God’s existence, starting from nonreligious premises about the natural world. Seen in this way, the question posed by the defenders of intelligent design is whether an atheist is forced by the empirical facts of nature to acknowledge that the appearance and evolution of life cannot be explained except by the agency of a purposeful designer.

No doubt some defenders of intelligent design make that claim, but while this is a legitimate question, it doesn’t get at the main difference between the parties to this dispute, a difference that remains even if the atheist can rationally resist any nonmechanistic explanation. The real issue, I suggest, is not whether the biological facts do or do not rationally require belief in God, but rather how an antecedent belief or disbelief in the existence of God will reasonably affect one’s interpretation of the biological facts.

Most people are believers or nonbelievers in the existence of God not as a result of argument, but in a much more basic way. They either see or experience God’s presence in the world and in their lives or they don’t. If God exists, then the capacity to see God’s will expressed in the world is one of the forms of perception he has given us, the sensus divinitatis. If God does not exist, then it is a form of illusion. As Alvin Plantinga has argued –- persuasively, in my view -- the justification for such religious belief is inseparable from its truth, just as is the case with sensory perception. We can’t construct a justification by starting from purely subjective data and inferring that God provides the only possible explanation of those data, any more than we can prove the existence of the physical world that way. But that doesn’t show that either perceptual or religious beliefs are unwarranted. Whether they are depends on whether they are delivered by reliable human faculties.

If one believes in God already, that belief will naturally form a part of the way one understands other things one knows about the world. If on the other hand one doesn’t regard the existence of God as a serious possibility, it will not be included among the resources that could conceivably be used to make sense of anything else. To someone for whom the possibility of an interventionist god is simply ruled out in advance, any problems in working out a purely mechanistic account of the evolution of life are nothing but intellectual challenges to evolutionary theorists to develop the theory further. There is no available alternative to an explanation in terms of chemistry and physics. To a believing Christian, on the other hand, the question is naturally open. After all, if God is responsible for the character of the world, including our existence, this responsibility might have been exercised only by establishing the eternal laws of physics, or it might have been exercised more specifically, by ordaining further principles, processes, or events not determined by the laws of physics.

Both the Christian and the atheist can agree that the hypothesis of intervention in the physical order by a creator, perhaps through the creation of very special initial conditions, would render the observed biological facts at least as likely as the hypothesis of blind physical forces, working ultimately through the processes of mutation and natural selection. But to an atheist the former hypothesis has zero antecedent likelihood, so there is no contest. It can be safely ignored, like the hypothesis that an otherwise inexplicable misfortune that has happened to me can be explained by witchcraft. Most of us would dismiss that hypothesis even if the misfortune followed the sincere attempt by one of my enemies, fresh from an overdose of Harry Potter, to cast an evil spell on me.

To a Christian, the possibility of divine intervention in the natural order is not ruled out in advance. Therefore the fact that such intervention would render certain observed facts probable is evidence in its favor, and it becomes one of the possible explanations of facts that might also be explained naturalistically, but that are by no means rendered more probable by the assumption of pure mechanism than they would be by purposive intervention. Perhaps on Christian assumptions it is a question left open by the available evidence, but it will certainly not be reasonable to think, as atheists naturally do, that there must be a purely mechanistic explanation of the origin and development of life.

To claim that that is the only reasonable conclusion for anyone to draw from the empirical data, the defender of evolutionary theory would have to claim that the belief in a god who can intervene in the world, like the belief in witchcraft, is itself irrational, and that it has been refuted by science. I am sure there are atheists who believe this, even if many of them would be reluctant to say so –- for reasons of tact if not of political prudence. But I believe they are mistaken: Neither belief nor disbelief in God is irrational, and the consequence is that two diametrically opposed attitudes toward the natural order are both reasonable.

Why did Bush pick Miers?

Why did Bush pick Miers, who seems the opposite of Roberts in many ways? I have a theory.

Fact: On all of his judicial picks, Bush has been solidly conservative. He's even been willing to use the recess appointment power to put people like 11th Circuit judge William Pryor on the bench.

Fact: When O'Connor announced her retirement, Bush wanted to move the Court to the right, at least somewhat. But at the same time, he didn't expect to have the votes in the Senate to win a filibuster battle against the Democrats (who will stop at nothing to keep the Court from moving to the right). Thus, Bush picked Roberts to replace O'Connor, knowing that Roberts didn't have the extensive paper trail that virtually all the other potential nominees had.

Fact: Rehnquist suddenly died. No one expected this to happen (so I've been told by a good friend who was involved in the confirmation process). The White House had been planning all along to elevate Roberts to Chief if the opportunity arose, so it announced that Roberts was now going to replace Rehnquist.

But now what to do? Bush still wanted to replace O'Connor with a conservative. But he knew that the Democrats were even more resolute about blocking any nominee with a conservative paper trail, and he knew that there weren't enough Republican votes to overcome a filibuster or to change the rules. Plus, Bush had less political capital in the wake of Katrina to force a nominee through an unwilling Senate.

Thus, Bush did the only thing he could in that situation: He picked a nominee (1) who has no paper trail to speak of, (2) who is reasonably qualified (in historical terms) for the job, and (3) whom he knows to be conservative from many years of personal friendship.¹

My hunch -- and this is all just speculation -- is that things would have gone very differently if Rehnquist hadn't suddenly died. We'd have seen Roberts replace O'Connor; and then at some later date, Rehnquist would have retired. At that point, Bush probably wouldn't have felt as constrained to pick another nominee with no paper trail. The White House message could have been, "We're just replacing Rehnquist, and he was one of the original dissenters in Roe, for heaven's sake. What do you expect but another conservative to replace him?," etc., etc.



¹Actually, another lawyer who fits those characteristics (and who, in my view, is probably better qualified than Miers) is Baker Botts partner Bob Jordan, who has at times served as Bush's personal attorney and who was the ambassador to Saudi Arabia from 2001-2003. I knew and worked with Bob when I was a summer associate at Baker Botts in 1999, and he wrote a letter of recommendation for my judicial clerkship applications.

Supreme Court Biographies

About a year ago, I wondered why there were no biographies of any of the sitting Supreme Court Justices, except for Justice Thomas, for whom there are 3 biographies already (with two more coming out).

Turns out that there are two biographies that have just been released: One about Sandra Day O'Connor and one about David Souter. How about that.

Megachurch Architecture

Slate has an interesting slide show on the architectural styles of various megachurches. There are three basic styles: thoroughly secular, just plain hideous, or both at once, as in the new Catholic cathedral for Los Angeles:




More churches should be hiring Duncan Stroik or Thomas Gordon Smith.

Miers

As Time reports:

Lawmakers and staff contend that during her first round of courtesy calls, Miers had anything but a commanding presence, looking more like a prom date next to the confident Senators. Republicans said she seemed unwilling or unable to answer questions about whether she viewed particular cases as important precedents and said she offered little beyond banal chatter.

Swell. I'm as much in favor of appointing an experienced practitioner to the Court as anyone, but a nominee should at least know the basics of constitutional law.

Father Neuhaus

I speculated over 3 years ago that Father Richard Neuhaus of First Things magazine was the first blogger, albeit in print form. Well, now Neuhaus has a real blog. In this post he writes of an upcoming article by Scalia:

You don’t want to miss Justice Scalia’s essay in the November issue occasioned by Steven Smith’s new book Law’s Quandary. I have great respect for Prof. Smith. He has written for FIRST THINGS and has the courage and intelligence to address the big questions, such as the moral legitimacy that gives laws the status of being “the law.” At the same time, Scalia makes a persuasive case that the answer to such big questions is not so elusive as Smith seems to think. But you’ll want to read the Scalia essay for yourself.

I've always liked the writings of Steven Smith; I can't wait to see what Scalia has to say.

Running

If you're into running, something that is definitely worth checking out is "Chi Running," a book by Danny Dreyer (an ultra-marathoner). The basics of the method are described here.

I've been running more regularly lately. Several weeks ago, I tried to run this 5.3 mile route that is pretty hilly. Plus, it was about a mile further than I had been running at that point. I had to stop and walk in several places (especially the hills), and when I was through, I was so winded and tired that I could barely move another step. The next week, I got the Chi Running book in the mail, and then tried the same route the next weekend. I was able to run (well, jog) the entire 5.3 miles, and I didn't feel nearly as winded or tired at the end. I was stunned to see such instantaneous improvement.

Since then, I've been able to increase the mileage on my weekly long run. Today I ran 7.7 miles, and again, didn't feel particularly tired at the end. I wasn't even really out of breath. It wasn't very fast -- about 9 minutes for the first mile and 9:30 for the last. But just being able to cover the distance is a nice feeling.

In addition to my Saturday long run, I run twice during the week, typically 1.5 miles at a faster pace. Since taking up Chi Running, I've also been able to increase my speed on that run. This past Thursday, my 1.5-mile time was 10:23, or around 6:55 a mile. That's not anything particularly special, but it's fast for me.

The biggest thing that seems to have helped -- and this is discussed in much more detail in the book -- is learning to keep the calf muscles as relaxed as possible. Instead of taking each step as if you're hopping off your toes (thus putting a huge amount of stress on the calf), you keep your calf and toes relaxed and instead just pick up the leg with each step. I was skeptical at first -- and such a technique probably wouldn't work for sprinters -- but it really worked for me. You still end up being able to run from Point A to Point B (or vice versa, depending on personal preference), but it is much less work.

Miers' Selection

Tom Smith asks:

When Ms. Miers put her hat in the ring, who in the WH was supposed to say, "but, Mr. President, she's not qualified"? Anybody who torpedoed her would have to work with her in the future, which would not be fun. So the people closest to the process are immediately in a position of not being able to give candid advice -- a reason not to pick close cronies in the first place.

As does Matthew Franck, writing on National Review:

So, to whom did [Bush] turn, if anyone, for an opinion on Miers's merits?

The New York Times answers:

Ms. Miers had been a leader in the search for a nominee, and Mr. Bush had kept her in mind for the next vacancy. The president discussed the idea with the White House chief of staff, Andrew H. Card Jr., and Mr. Card then directed Ms. Miers's deputy, William K. Kelly, to vet her behind her back.

That would be Bill Kelley, formerly a professor at Notre Dame Law School, and a former clerk for Ken Starr and Justice Scalia. The Washington Post elaborates:

At that point, according to another senior official close to the process, deputy White House counsel William K. Kelley suggested to Card that Miers ought to be considered for the next seat that opened. "It began to be kicked around in a small circle of people," the official said. With Bush's approval, Card and Kelley began the secret vetting, looking at Miers's public work.

* * *
Bush sat down with Miers in the Oval Office that same day for the first of four conversations in which she was the interviewee instead of the interviewer. Miers was stunned at first.

"We said, 'Well, Harriet, look at your résumé. Is that the résumé of someone you would recommend the president consider?'" recalled the senior official. "And she said, 'Yes.'"

I wonder who is the "senior official" that told the Washington Post about that latter conversation.

Miers

I'm not quite sure what to think of the selection of Harriet Miers as the next nominee for the Supreme Court. I share the reservations of many people that she may be too much of a blank slate, that it looks too much like cronyism, etc.

But for the reasons expressed by Beldar -- who's on a roll -- I'm also dubious of the oft-heard claim that she's not "qualified." She was incredibly successful in private practice. Who's to say that such experience makes a lawyer less "qualified" than a series of law review articles setting out a grand jurisprudential theory? Indeed, I suspect that many of the people making the "unqualified" claim are not thinking about just how much of the Supreme Court's work is really "lawyer's work," so to speak.

For every hot-button case about abortion or the Commerce Clause that comes along, there are probably 10 cases (and hundreds of cert. petitions) involving detailed and technical questions about ERISA or the Federal Rules of Civil Procedure or the Longshore and Harbor Workers' Compensation Act or Robinson-Patman or the Sherman Act. Hardly anyone -- least of all constitutional theorists -- is experienced in all of these areas of law. What's important is whether a judge can pick up the basics of a new area of law quickly. While I don't know for sure what area(s) of law Miers focused on, many practitioners also have to pick up new ideas fairly quickly, particularly when lawsuits involve many different areas of law. Perhaps the antitrust suit turns out to involve a constitutional issue over punitive damages. Perhaps the breach of employment contract case also involves six different laws governing employment. Perhaps the tax case also involves questions of due process and how to construe the statutes governing civil appeals.

Another substantial portion of the Supreme Court's docket involves criminal law, but Miers isn't unusual in having no experience in that area. As far as I know, none of the Supreme Court's sitting Justices (except for possibly Souter) had any experience either as a prosecutor or defender. (Souter had been Attorney General of New Hampshire.)

Another thing to think about: Who makes a better CEO of a company? Someone who went to the top schools, got an MBA and a fancy consulting job, and was recruited right into the top ranks of management at an early age? Or someone who spent a good bit of time in the trenches, working her way up from the lower levels of the company, and getting a lot of first-hand knowledge of what the company really does on a day-to-day basis? Could be either one, right? Aren't both types of experience valuable in their own way?

The Final Word on "Scalito"

In a couple of earlier posts, I asked why journalists who write about Third Circuit judge Samuel Alito always claim that his nickname is "Scalito," even though there seems to be no one who ever actually used that term in print. Indeed, the first ever printed use of "Scalito" appeared in a National Law Journal article that merely said that "some" call Alito "Scalito." I just noticed that there was a comment on this post that revealed who coined the term:

Shannon P. Duffy said:


I'm the one who nick-named Alito "Scalito." The National Law Journal article you refer to was written by Joseph Slobodzian. At the time, he and I were both reporters covering the federal courthouse in Philadelphia -- he for the Philadelphia Inquirer and I for the Legal Intelligencer. He did some freelancing for NLJ and we had several discussions at the time he wrote that article. I knew as soon as it was published that my nickname would stick, but I never would have guessed just how popular it would become.