Gordon, what does the phrase "out of her depth" mean (specifically, please) in your two fears quoted below:

"Two important and contrasting fears about an 'outsider' to constitutional interpretation like Harriet Miers: (1) she will be too easily swayed by other members of the Court because she is out of her depth, and (2) she will become isolated from other members of the Court because she is out of her depth."

Out of her depth how? In terms of intellectual firepower? In terms of ability to interpret and apply the law? In terms of her lack of experience with . . . writing an opinion?

Thanks.

Elizabeth,

Actually, after re-reading this, "out of her depth" sounds too disparaging. I was thinking something more like "out of her environment." Ann claims that Harriet Miers is different than the sitting justices in that she is less oriented to theory. If she is confirmed, therefore, she will enter an environment in which eight justices will be playing a game she hasn't played. So what does she do? Perhaps she learns the rules of the new game straight off and fits right in. But there is some risk that she will not fit right in. In that case, should could become a tag-along or she could just become isolated.

Gordon, can we be frank and honest? Honest and frank? I do not believe that being a Supreme Court Justice is likely something that takes a long time for really smart people to get up to speed on.

That whole point about being "less oriented to theory" sounds very important, but I do not think that it is relevant. The Justices are not assessing theory. They are deciding issues of law (or deciding what the law is or something like that). Indeed, the Justices do not swear to uphold "the theory" - they swear to uphold the Constitution.

Moreover, as I understand it, the job of a sitting Justice involves showing up to court, listening to some arguments, asking some questions, chatting with colleagues, reading some "stuff" (briefs, cases, memos, periodicals, historical documents, more cases, statutes, and other materials), thinking really hard for a really long time (or not so long, depending), going back and re-reading some stuff, re-discussing some stuff, musing again for a while, and then voting. There is nothing that requires an intimate familiarity with theory or a sophisticated understanding of any judging rules in that job description, as I see it. In addition, although sometimes Justice Miers might have to write an opinion, as we see in cases such as Planned Parenthood v. Casey, writing an opinion can often be as easy as stringing together a bunch of non-sequiturs and dropping in words like "penumbra." Candyland might well have more rules than does Supreme Court opinion-writing. (Tongue firmly in cheek.)

Further, when Roberts -Scalia -Thomas -Kennedy line up against Ginsburg -Souter -Stevens -Breyer, I have to believe Miers will not be isolated. I think she will be asked to lunch more often than you and I could ever hope to be.

And, in closing, I hasten to remind you that liberty takes no refuge in a jurisprudence of doubt. (That final sentence actually has nothing to do with anything. I just wanted to drop the phrase "liberty takes no refuge in a jurisprudence of doubt" into this discussion because it makes me laugh right out loud. I mean, for the love of Pete, are you telling me that THAT sentence could only be constructed by a hierophant of legal theory who understands the rules of the game?)

Elizabeth,

Lots of people have been debating whether constitutional law is hard. I see you subscribe to the "easy" view. Perhaps it's like being a tenured professor. Sure, it can be easy, but not if you are engaged and attempting to make a difference. I was hoping for a justice who would be engage and making a difference, not a justice who is playing catch-up.

Gordon, good morning! Four things:
(1) I hope my initial comment above did not come off as disrespectful of your views. I tend to be fairly . . . irreverent (satiric? I'm not sure what is the best word to use), and it is tough to convey that in a posting. So hopefully you took no personal offense. I assure you that I am actually very charming and not offensive at all when I am speaking aloud. (Tongue firmly in cheek on that last point.)

(2) As to your comment that "Lots of people have been debating whether constitutional law is hard," I had no idea. I was not intending to speak to the issue of whether con law is hard.

(3) As to your comment that "I see you subscribe to the 'easy' view," no - I do not. But I actually was not intending to speak to that point, either, in my initial post. For clarification, however, I do not think that con law is easy - I could not have anything but the most basic discussion with you about . . . the 11th Amendment . . . due process (procedural versus substantive, mind you) . . . and other such things. My initial point in my above post was just that I think that it is not hard to get up to speed on the process or procedural aspects of being a Supreme Court Justice. Answering the QUESTIONS that ultimately are posed to the Court is not easy, but I imagine that is the same for both new and "tenured" jurists. I imagine that that is not something that anyone really ever develops an "expertise" in, such that Miers will be playing "catch up," because most of the questions posed to the Supreme Court are new questions.

(4) As to your tenured professor point, I do not think that it is easy to be tenured (not that I am) for exactly the reason you suggest. Hopefully a tenured professor is a hard-working professor. But I was not trying to speak to how hard I think the Justices and Ms. Miers work in any event. I was trying to say that I do not think that the. . . "getting up to speed" aspect of Ms. Miers's potential appointment or the "getting into the game" aspect or the "learning how to do the job" aspect will be too troubling.

Sorry for being unclear. In short, I was just trying to convey that I did not think that Ann's views of the potential problems raised if Miers is appointed were compelling. I would rather hear someone say that Miers lacks firepower or is not ethical or does not have the mental flexibility to take an S.Ct. seat. To me, the actual mechanics of the "game" once appointed should not be a problem for any above-average lawyer.