ConfirmThem

By Feddie Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

I was all set to come into the office this morning and outline in even further detail my beef with the Miers nomination. Thankfully, David Frum saved me the trouble of doing so:

The president was visibly angry at his press conference yesterday. Nobody likes criticism, especially when it's justified. But was he convincing? He sure did not convince me. The closest thing he offered to a defense - praise for his nominee for hailing from outside the "judicial monastery" - entirely misses the point. Senator John Cornyn elaborates on this defense in the Wall Street Journal this morning, and makes it clearer than ever what is wrong with it:

"[S]ome have criticized the president because he did not select an Ivy-League-credentialed federal appeals court judge for the open seat."

The problem with Harriet Miers is not that she lacks formal credentials, although she does lack them. Had the president chosen former Solicitor General Theodore Olson, or Securities and Exchange Commission chair Christopher Cox, or former Interior Department secretary Gail Norton, nobody would complain that they were not federal appeals court judges.

Had the president named Senator Jon Kyl (LLB, University of Arizona) or Senator Mitch McConnell (LLB, University of Kentucky) or Edith Jones Clement (LLB, Tulane), nobody would be carping at the absence of an Ivy League law degree.

Those who object to the Miers nomination do not object to her lack of credentials. They object to her lack of what the credentials represent: some indication of outstanding ability.

The objection to Miers is not that she is not experienced enough or not expensively enough educated for the job. It is that she is not good enough for the job.

. . . .

And she will remain not good enough even if she votes the right way on the court, or anyway starts out voting the right way. A Supreme Court justice is more than just a vote. A justice is also a voice.

The president's defense of Miers in many ways amplified the problem. His case for her boils down to: "Because I say so" and "She really is a nice person."

But "because I say so" is not an argument. It is an assertion of pure authority. And have not the great conservative legal minds of the past three decades warned again and again that the courts have gone wrong precisely because they have relied too much on authority and too little on argument?

She really is a nice person" likewise is a statement grounded on feeling rather than thought. And don't conservatives object to legal liberalism precisely because it is based on sloppy emotion rather than disciplined thought?

Believe it or not, legal conservatism is a powerful and compelling school of thought. The Scalias and the Thomases and the Rehnquists have had their effect not by forcing their positions on the country by brute vote-counting, but by persuasion. That's why, to pick out just one example, that Bush v Gore was decided by a 7-2 majority and not lost 3 to 6.

This president has never believed much in persuasion. He believes that the president should declare and that the country should then follow. But judges cannot and should not do that. He should have chosen a justice who could lead by power of intellect, and not because she possesses 1/9 of the votes on the supreme judicial body

It has been conservatives who have been most up in arms about the Miers nomination. But really this is a nomination that disserves not just conservatism, but the whole country.

All Americans are entitled to know that those judges who exercise the power of judicial review have thought hard and deeply about the immense power entrusted to them. If the courts were just about getting the votes, then the preisdent should have chosen Dennis Hastert for the Supreme Court. But to change American law, it's not enough to win the vote count. You have to win the argument. And does anybody believe Harriet Miers can win an argument against Stephen Breyer?

Yesterday's White House talking point was that Miers "reflects the president's judicial philosophy." OK. But can she articulate it? Defend it? And persuade others of it - not just her colleagues, but the generations to come who will read her decisions and accept them ... or scorn them. That's the way this president should have thought about this choice. And that's the way the Senators called on to consent to the choice should be thinking about it now.

Exactly. That's the point, folks. We conservatives must not fall into the same mindset as liberals by conflating law and politics. Moreover, why should we be expected to settle for someone who will simply vote the right way? We should expect and demand that the president nominate brilliant legal thinkers to the SCOTUS, like Justices Scalia and Thomas (as he did with Chief Justice Roberts). After all, isn't that what he promised us in two presidential campaigns?

I realize that many of you believe that law nerds like me are simply being snotty and elitist about Miers, but that is simply not the case for all of the reasons Frum outlines supra. And there is a practical reason why it is important to nominate someone who has demonstrated an intellectual commitment to originalism, textualism, federalism, etc. over a lengthy period of time: A person with that type of background is unlikely to "grow" in office. It is one thing to speak in general platitudes (as Miers has done) about "strictly" interpreting the Constitution or not "legislating from the bench." It is quite another to have clearly outlined---over the course of one's legal career---a coherent judicial philosophy that has been tested and refined in the legal marketplace of ideas. For better or worse, the current state of constitutional jurisprudence is such that one must possess the highest degree of expertise in this area to be a respected voice on the Supreme Court (see, e.g., Chief Justice Roberts); and I see nothing in Ms. Miers's record which indicates to me that she is a member of that elite group.

For the good of the republic, President Bush should pull his nomination of Harriett Miers. She is a nice lady and a good lawyer, but she is simply not qualified to sit on the Supreme Court of the United States.