Will: A Devestating Critique From The Other Side
I have attempted to keep an open mind about Harriet Miers; one might think, from reading this blog, that I was unabashedly for her nomination. I DID state that I support her, and I do. I also stated that I was open to persuasion that she was not suitable for the task at hand, and I am. George Will makes the best case to to date of her unsuitability here.
Perhaps it would be more accurate to say her potential unsuitability, for Will has convinced me of one thing: we need to hope, probably vainly, that her confirmation hearing is a little more probing than that of John Roberts. Says Will:
It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court’s role. Otherwise the sound principle of substantial deference to a president’s choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.
The wisdom of presumptive opposition to Miers’s confirmation flows from the fact that constitutional reasoning is a talent — a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer’s career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.
Under the rubric of “diversity” — nowadays, the first refuge of intellectually disreputable impulses — the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation. Identity politics holds that one’s essential attributes are genetic, biological, ethnic or chromosomal — that one’s nature and understanding are decisively shaped by race, ethnicity or gender. Categorical representation holds that the interests of a group can be understood, empathized with and represented only by a member of that group.
The crowning absurdity of the president’s wallowing in such nonsense is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing Miers, deplored judges who “legislate from the bench.”
Well, that’s a quite strong argument.
Cronyism, eh – there’s nothing that says that just because a person is a friend of the President’s that that person is unqualified. Not a judge – doesn’t really bother me. And indeed, Will has not convinced me to oppose her nomination; what he has done is much more subtle: he has taken away a reason to support her. Many who have applauded this nomination have indeed used the language of identity politics, a language that I deplore, intellectually, but one that is so sneakily benign that it can quite stealthily come in under the radar.
I still support Miers, but Will has succeeded in raising my cautious, skeptical instincts…I need a little persuading in the hearing, Harriet, and so do many others. Be prepared to give it to us…
Yes, it is a strong statement, but typical of Will at his most patronizing an school-marm-ish. I go back to the Lifson article yesterday, anyone who doesn’t realize that the appointment of a SCOTUS judge is a political exercise is naive, and yes, in 2005 it would be politically very difficult for Bush to nominate two (three?) judges who were all male. This exerpt implies that Bush’s only criterion was to pick a woman–I guess he picked the first one that then walked in the room? Ridiculous. There is something to be said for intellectual diversity in a group of nine people, a diversity in viewpoint, if they are to be the highest court in the land.
I agree Mark, about the hearings–that was my conclusion today. It’s the crucial thing. But this doesn’t give me any reason to change my mind until then.
While my admiration of George Will is boundless, in this matter he is a bit insincere.
There exists a job within the Supreme Court called ‘Clerks’. These useful devices will do something called research. Before any decision is usually made (I hope), the Justices will be provided with relevant information reagrding the case. They may even, gasp, discuss it amongst themselves.
Mr. Will’s statement- “The wisdom of presumptive opposition to Miers’s confirmation flows from the fact that constitutional reasoning is a talent — a skill acquired, as intellectual skills are, by years of practice sustained by intense interest…”
Therefore, anybody out there who thinks they know something about the Constitution…not so fast, at least according to Will.
Sorry George. This isn’t like getting a pop quiz, and you can’t use your notes. Saying that a successful lawyer is not capable of reviewing case law and determining their opinion of a proper outcome is to suggest that the ‘common man’ has no business discussing Constitutional law. In Will’s words to non-lawyers- you lack ‘reasoning’, ‘intellectual skills’, ‘intense interest’, and any ‘practice’ to make your opinions regarding the Constitution worthy.
I smell a whiff of elitism, George.
Let me give you a quote George:
“We hold these truths to be self evident: that all men are created equal; that
they are endowed by their Creator with certain inalienable rights;”
Apparently for Mr. Will, Truth and inalienable rights, are only self evident to Constitutional Scholars.
I reserve judgment on Meirs, but it appears that many have already reached their conclusions, without knowing the person in question. Dissappointted that you didn’t get one of your picks, George?
Run for the GOP nomination for 2008.
I find two things hilarious about that comment, mark (the lesser):
1. You accuse George Will of elitism? The man is about as Tory as you can get – OF COURSE he’s elitist!
2. You make an implicit assumption that anyone can do the job of a Supreme Court justice. To which I say, “Horsesh**”. I don’t care if the so-called “common man” talks about constitutional law, but I sure as hell don’t want him making binding rulings about it. That you think it doesn’t take years of sustained effort to develop the skills necessary to really understand the Constitution, its purpose, and its history says more about your anti-intellectualism than Will’s elitism.
Also, just because it’s worth mentioning, Harriet Miers thinks Bush is the smartest man she’s met. The lesson we draw from this is that either she hasn’t met very many men or she’s a complete moron. Either way, not a great Supreme Court justice.
Outside of baseball trivia will is an arrogant ass. He knows nothing so he projects his worst fears on her. All the pundits are doing that.
Just like the liberals. It is pathetic watching the conservatives voices lose their collective heads in a pandemic panic.
Not one fact has been laid out to support the myriad chicken little theories. I know I am beating a dead horse here, but when did we stop respecting each other and waiting to know before we lash out? Reagan was right to be concerned with hyperventilating within the party. Once rash allegations are made it is impossible for the best meaning people to pull them back and admit they jumped the gun.
Not one fact. All speculation. All rumor. Which is worse: Liberals speculating she is a lesbian or Drudge/Reps hinting her support for normal civil rights for gays is wrong?
I think the latter is worse.
“You make an implicit assumption that anyone can do the job of a Supreme Court justice.”
How long has Ms. Meirs been practicing law? You overstate the ‘anyone’ after reading that I give her credit for being a successful lawyer. Mistating my argument to augment yours, is pathetic, and demonstrates your willingness to dismiss Meirs, through dishonesty.
You made the implicit assumption, d**sh*t, about Ms. Meirs qualifications. You lie aout my argument..despite the fact that it is in print in front of you. Clearly, given you inability to read, you would not be qualified for the work in the legal field.
I am defending the right of any individual to interpret the constitution. If you wish to surrender your right to bear an opinion in these matters-You are making “We, the people” into “We, the Constitutional Scholars”. If you are asserting that a US citizen is incapable of interpreting the law as written…proceed.(Although you have shown the inability to read what is in front of you…)
You lack the eloquence of Will, but your sentiments are his. You are exhibiting the same elitist tendencies that you find in Will.
“That you think it doesn’t take years of sustained effort to develop the skills necessary to really understand the Constitution, its purpose, and its history says more about your anti-intellectualism than Will’s elitism.”
The law is a matter of logic. Either you are a logical person or you are not. I respect the Framer’s intent regarding the minimal qualifications needed to sit upon the Court. I am an atheist, but realize that the President is well within his right to appoint an evangelical christian. If you’d like to ammend the qualifications (and the Constitution) to sit upon the Court, work something out with Will. You can be his running mate.
“Will at his most patronizing and school-marm-ish.”
Which is saying something.
“says more about your anti-intellectualism than Will’s elitism.”
There’s no middle position between elitism and anti-int’ism?
“Miers thinks Bush is the smartest man she’s met.”
… according to David Frum …
Well, I would be willing to admit that Bush is smarter than I am, and that comes hard to me. Smart is a deliberate word choice here–I mean, I expect I know more about Goethe than he does, just as Miers knows more about the law than he does, but that’s different than being smart.
One note, on Hume’s show last night, the “all stars” were starting to comment on how Reid was finding himself increasingly fenced in by his early praise of Miers as her record looks increasingly conservative, and how problemmatic this was going to be for him. Hmmmm…a smart move after all?
Academic,
Word is coming out from some on the left there will be no filibuster. That is a stunning quick surrender if true.
Lord love a duck AJ. That didn’t take long.
George Will’s piece shows how silly Bush’s remark about going “outside the judicial monastery” is. If you were going to build a bridge, would you look “outside the civil engineering monastery?”
Mark – I’m not especially enamored with the way you addressed me in your response, but whatever. I can take it. Let’s be clear about a few things, though:
Practicing law is not the same as having a deep understanding of the history and purpose of the Constitution. I’m confident that Miers is more than capable of arguing cases under Texas law with no great trouble. I’m less sure that she’s the sort of constitutional expert we should be asking to sit on the Supreme Court.
You can go right ahead and defend the “right” of anyone to interpret the Constitution (although I’d love to know where you smarmy, self-righteous originalists find such a “right” in the ALMIGHTY SACRED TEXT), but I’m not talking about anyone’s rights. I’m talking about the sort of person who ought to be making the big decisions that matter. I will also go right on talking about what I think the right way to read the Constitution is, but under no circumstances would I claim that I ought to be the president’s Supreme Court nominee.
This, of course, is my favorite: The law is a matter of logic. It is certainly true that logic comes into play in interpreting and applying the law, but you can’t honestly believe that’s all there is to it. There’s also the matter of interpreting words, figuring out context, understanding the history of law and the intentions of those who wrote it, and so on. I sincerely doubt that just anyone can jump into the seat and do all of that.
Also, as if it needs saying, I’m more or less with peter on this one. We have experts for a reason, and Hamilton opposed cronyism for a reason too. It’s a matter of logic and all that.
Mark Not the Lesser – Have you seen the piece at Q and O? It’s also in opposition, but I think it’s quite well-written/-reasoned.
http://www.qando.net/details.aspx?Entry=2697
Thanks for the heads-up…it’s definitely another strong argument…
“although I’d love to know where you smarmy, self-righteous originalists find such a “right” in the ALMIGHTY SACRED TEXT”
It’s called strict constructionism-and I ask you to find ‘Where in the sacred text’ it specifies what prerequisites a candidate for the Court must have. Last I read, you don’t even need a law degree. Once again, I urge you and Will to rewrite the Constitution, to your liking. The world according to Ryan.
“It is certainly true that logic comes into play in interpreting and applying the law, but you can’t honestly believe that’s all there is to it.”
Ever take the LSAT’s? Want to guess how much of a factor in admissions they serve?
“I sincerely doubt that just anyone can jump into the seat and do all of that.”
Once again, not ‘Anyone’. You insult Meirs experience and vocation. You continually understate her experience, suggesting a bias.
Explain how Rehnquist, who was never a judge, nor a law professor became an Associate Justice. Must have been a Nixon crony…
Or examine the 41 out of 109 justices in the Courts history who had no judical experience.
You also state-”‘I’m talking about the sort of person who ought to be making the big decisions that matter.”
That would be Bush, he won this thing called an election, where I distinctly heard this topic discussed.
In the case of Ms. Meirs, she would be one of nine people making the decisions. While all the justice have qualities and experiences uniquely different-serving in the executive Branch as Chief Counsel to the President is not pertinent?
The idea of diversity is compelling. Your idea of a narrow criteria for selection which is not limited by any statement in the Constitution, reeks of elitism.
Very impressive for you to even discuss why someone should be disqualifed from consideration for the high Court, without any legal reason for it. I have little doubt that you fail to meet the criteria you’d wish for the court, so who are you to judge? I would say you have every right to have an opinion reagrding this matter, but it could also be said by your own argument that you lack the neccessary experience and with the law, to have an opinion on this.
Oh, by the way, my pick was JR Brown.
Who was yours?
Mark the Lesser – I haven’t said at any point that it’s unconstitutional for unqualified people to sit on the Supreme Court. I think it’s a bad idea and that the Senate should think hard about exercising its prerogative to reject Miers, but I don’t think there’s any constitutional barrier here. Unless you count the part where the Senate was given the power to reject nominees, and one of the major reasons given by Hamilton for that power was so that they could reject cronies of the president.
As for my pick, I have always liked Michael McConnell.
The same arguments you make about Meirs, could have been made about Rehnquist.
Good pick.
Re Rehnquist: he was first in his class at Stanford Law School and held high positions in the Justice Department. I believe he also clerked for the Supreme Court. So he had a John Roberts – like, high visibility legal background.
Re strict constructionism: you could make the case that since Marbury v. Madison (in 1803), the Court has abandoned a strict and literal interpretation of the Constitution. You cannot find explicit references to judicial review in the Constitution, yet it has been the operating principle of the Court for almost the entire history of the republic. To insist on a literal reading is (to quote Justice Marshall) “a idea so absurd that no thinking person ever conceived it.”
Well, if we’re giving picks…mine would have been Gonzales (just to hack everyone off on every side equally)…
Not Simon Cowell?
Well, that would have hacked me off, for sure…
AJ-
“He knows nothing so he projects his worst fears on her. All the pundits are doing that.”
You’ve nailed it.
Ryan-
“Harriet Miers thinks Bush is the smartest man she’s met. The lesson we draw from this is that either she hasn’t met very many men or she’s a complete moron.”
What makes you so sure he’s so dumb?
My prediction: Harriet Miers pulls her nomination within two weeks. Cites personal reasons, the desire to avoid a divisive fight, whatever. I will be a milkshake with anyone who will be in the San Francisco Bay Area to give/receive said milkshake.
sorry, bet, not be
Well, I might have made a special trip to the Bay Area myself if you were gonna be a milkshake…pity you backed down!….
yeah, well, the mind moves faster than the fingers –
Peter-
If that happens, it would be interesting to see whether this was really the strategy all along — for example, all of the conservative flack he’s taking, and the demand (from the left as well) for someone with eminent legal credentials like Roberts “forces” GWB to appoint McConnell…
But I suspect GWB wouldn’t have made this appointment if he didn’t really want to see Miers on the Court. So far even his most controversial nominees (Bolton, anyone) have not been strategic games but candidates he really wanted to see confirmed.
I also doubt that she was picked as a stalking horse, because I don’t see what benefit it would bring to him — my guess is that someone in the administration will tell her that they don’t have the votes, and it would be better if she withdraws than loses a floor vote —
However, you never know — as you can see, I limited my exposure on this bet to about three dollars — as they say, the best way to be right is to make a lot of predictions –
peter, speaking of bets, I offered to bet a very, very hardcore lefty in my office a crisp $100 bill today that Tom Delay would not be convicted of anything…needless to say, he declined…
I wouldn’t take the bet either — you never know what a jury will do — hey, John Gotti Jr. got off last week, and I have to believe that Tom DeLay is at least his equal…
Clint – I don’t think he’s dumb, but I can’t imagine that anyone seriously believes he’s THAT smart. Harriet Miers has worked in the White House for about five years now and she hasn’t met anyone smarter than Bush? Whatever virtues the man may have, he is no luminary. I would bet Peter’s milkshake that, on a scale of sheer intelligence, at least Rice, Rumsfeld, and Wolfowitz are smarter (if not others too – maybe Michael Gerson). Has she not met any of them?
Rice being not a man, please ignore her name in above comment. I promise it’s not a Freudian slip.
Oh, another thought. Miers was part of the selection process, so presumably she’s met John Roberts. Who really believes that Roberts – who, by all accounts, is pretty brilliant – isn’t smarter than Bush?
Sure, Ryan, sure, we’ll just ignore the implications of your little slip…