The Washington Post returns to the scene of its sideswipe of Harriet Miers last week in reporting on the exchange between Senator Leahy and Harriet Miers regarding her favorite justices: “Warren? Or Burger? A matter of judgment.” I noted the anecdote involved here in “A tale of two Warrens” and followed up in “The K-Lo clarification.” The lede in today’s Post article declares:
This much is clear: One of the former Supreme Court justices most admired by nominee Harriet Miers is Warren E. Burger. But just how quickly Miers recalled his full name and whether she ever referred to him simply as “Warren” is now a matter of dispute.
The article adds that, according to Senator Leahy’s spokesman Tracy Schmaler, Miers also named Oliver Wendell Holmes to her pantheon of favorite justices. It is a detail that was lacking in the Post’s original story.
Among conservatives of a certain stripe (my own), Holmes is the Supreme Court justice who is notorious for having declared in upholding a state eugenics program that “[t]hree generations of imbeciles are enough.” He was a nihilist whose thought (and aphorisms) have proved serviceable to nearly all branches of contemporary legal thought. See Michael Uhlmann’s review/essay “The Darwinian mind and faith of Justice Holmes.”
The role of Senator Leahy’s colleagues or aides in retailing the Warren story — raising the possibility that Miers may have been referrig to Earl Warren — seems to me a variation of the role played by Senator Durbin’s office in retailing a similarly malicious story about John Roberts. Today’s Post story treats the issue as something of a lark, noting that Burger is not highly regarded for anything other than judicial administration — the matter on which Miers allegedly held him in high regard.
In this story the Post does not explore the related theme of “elitism” that has been used against some of the critics of the Miers nomination. In Minnesota, Burger is famous for having worked his way through law school while attending the St. Paul (now William Mitchell) College of Law, which was a night school for working students when he graduated from it in 1931. His fellow Minnesotan and friend Harry Blackmun of course attended Harvard Law School. However mediocre a justice Burger was, I would rate him a giant of intellect and grace next to Blackmun.
Miers’s brief discussion of her favorite justices with Senator Leahy puts me most in mind of Warren Zevon’s urgent plea in “Lawyers, Guns and Money” to “get me out of this.”