To serve in Congress or even the presidency, there is no requirement for scholarship and brilliance. For good reason. It is not needed. It can even be a hindrance, as we learned from our experience with Woodrow Wilson, the most intellectually accomplished president of the 20th century and also the worst.
But constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship. Otherwise it is nothing but raw politics. And is it not the conservative complaint that liberals have abused the courts by having them exercise raw super-legislative power, the most egregious example of which is the court's most intellectually bankrupt ruling, Roe v. Wade?
Of course the elitism Krauthammer argues for isn't that of the right schools, but of the intellect. There is a reason the court is comprised of unelected and supposedly carefully considered members.
There are 1,084,504 lawyers in the U.S. What distinguishes Harriet Miers from any of them other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.
Frankly, I agree. Because members of the Court are indeed engaged in a mostly intellectual exercise with a very narrow focus, their credentials are incredibly important. Picking the wrong people for those positions, i.e. people intellectually ill-disciplined, politically motivated or both, would see that focus widened and changed. As William Buckley points out (through Nicholas Kristof) that's been a growing trend of the past, especially from the left. It has also been a trend recognized and fought by the right.
But now we have the Miers nomination, and we may have the right seemingly engaged in precisely the same business. As Krauthammer concludes:
By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to George Bush, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a man whose presidency is marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.
Miers has no "originalist" or "constitutionalist" credentials. She's a virtual unknown in that department, and it is that aspect which makes her seem a dangerous nomination to many. Were she to be confirmed would she be a Scalia or a Ginsberg?
We simply have no way of knowing for sure given her lack of credentials. Many have pointed to this as a politically good thing, since it will probably ease the nomination process. Well, I'd rather see a brutal nomination fight with the chance of failure on a candidate with certifiable originalist credentials that a pick which is politically astute but may end up being a disaster if seated.
After all, once they're seated, there are no "do overs" available.
I used to know a fellow who worked for the Tennessee State Board of Education. He was a researcher, and a bright guy. His analyses, though I didn’t usually agree, were detailed and reasonably well constructed.
He one presented before governor Ned Ray McWerter, a standard-issue Tennessee good-ole-boy, on some education matter. Afterwards, Ned Ray said something to his staff about "that g*dd*mn egghead". Even though this guy was more-or-less on the same side as Ned Ray, he wasn’t trusted.
I think Bush is just a somewhat refined version of Ned Ray. Bush is an intuitive decision maker. He makes up his mind on gut feel, and he most readily trusts others who do the same. Bush feels no commonality with a "g*dd*mn egghead", and is therefore not likely to be a strong proponent for one.
I don’t particularly like Pat Buchanan and I don’t always agree with him but his criticisms of the Miers’ nomination is right on:
There are today third-generation conservatives who have bravely defended their beliefs in hostile law schools, clerked for Supreme Court justices, paid their dues in the White House or the Department of Justice, joined the Federalist Society, and advanced by excellence and merit to federal judgeships. The message of the Miers appointment to this generation is: You made a mistake. You left a "paper trail." Is this the message we want to send to the next generation: Don’t let anybody know where you stand on gay rights, affirmative action or Roe v. Wade?
Is this what conservatism has come to? By the standard of "no paper trail," we would never have nominated Scalia or Bork, or elected Ronald Reagan, who with his thousands of radio and TV commentaries had the longest paper trail in American history.
And from The Wall Street Journal, someone else that gets it:
Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist’s "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.
If instead the Senate had been given the chance to confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing, that vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to. In turn, Congress’s imprimatur would follow the nominee onto the Court, into the judiciary and the law schools. A Miers confirmation validates nothing, gives voice to nothing.
Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist’s "New Federalism," which devolves many powers back to the states, was one such example.
Anyone that can say this of Rehenquist, the author of the Controlled Substances Act, with a straight face, deserves a Tony.
I got to support Meiers, she is my homegirl.
PS: re George Will. I thought his blister read equally well with a name and gender change to discuss Robert’s annointment. Do a find and replace and see how it REALLY reads.
I refuse to believe that a successful lawyer, businessperson, government advisor, and apparently solid citizen can’t provide a resounding touch of street level common sense to the elite, hide-bound, booming legal minds of the other eight gods and goddesses at SCOTUS.
Since the Supreme Court is the only venue left that has not been taken over by the Lawyer’s Cabal (otherwise known as the "Bar"), IOW the only Judicial position which does *not* have a legal requirement of membership in the Attorneys Union, and since everyone seems to agree that the *real* requirements are a brilliant mind and great scholarship, I’d like to see, just once, a philosopher of high standing nominated.
Watch the brickbats appear from the same people who are poo-pooing Meiers’ nomination on the grounds that "real legal experience is required".
