On how confirming a Supreme Court nominee is like choosing a federal jury
The literature on persuasion says that I must start with something you know and understand to persuade you of the truth of something new. I’m afraid I have to violate that rule because many of you will not understand my beginning point.
In the federal courts I have practiced in (and maybe all over the country), the jury is chosen by a method of “striking” people who are essentially standing in line. If I will have a six-member jury, the clerk presents me with a board with all the jurors’ names on attached to magnets. All the names are in a line and the first six are “in the box” that represents the jury box. If I go first, I can strike one or more of those people (I can also strike none). When I strike a person, let’s say juror 2, juror number 7 is moved into the box, so that it always contains six people. The total number of people I can strike is limited – usually six – so I have to be careful that I don’t use up my strikes in a way that results in a worse juror (from my perspective) being moved into the box to replace someone I found mildly objectionable.
My job is complicated because the opposing counsel is also striking jurors in alternation with me. I don’t know ahead of time who he will strike, but I usually assume that he will want the people I find most disagreeable. And that he will strike those I find most agreeable.
Let’s say we get to a point where we each have one strike left, and it is my turn to strike. I don’t like juror 12 who has just moved into the box. If I strike juror 12, juror 13 will replace her. If I think that my opponent will strike number 13 (or anyone else), I have to consider what I know about number 14.
I stand there looking at the board in the clerk’s hands. Beads of sweat trickle down my neck. I can hear Dirty Harry saying, “Well, do you feel lucky today … PUNK?”
Thus it must be for some Senate Democrats who find themselves less than enthusiastic with the nomination of Harriet Miers for the Supreme Court. Whether they take the position of Professor Bainbridge (“does she have the chops for the Show?”) [believe me, you have to read Bainbridge’s post to get the whole, rib-tickling argument] or the position of Confined Space that Miers is a corporate lawyer from a union-busting firm so she will be bad for working people, they must be wondering who is the next juror/justice who will step into the box if I strike this one?
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