Bad Arguments 101 Posted by: Dale Franks
on Sunday, October 09, 2005
Robert Musil makes a big mistake with this argument in support of Harriet Miers.
Personal feelings matter. The liberals who so savagely and personally attacked Clarence Thomas did the conservative movement a great favor: They sealed off any reasonable chance that Justice Thomas might be led to views more like those of his critics through the back door of personal relationships. Those doors can accommodate much traffic. Justice Brennan, for example (whose credentials at the time of his appointment certainly did not tower over those of Ms. Miers) became one of the most influential people who ever served on that Court largely by the artifice of personal charm. Harry Blackmun had retreated from many conservative values through those back doors, once he was offered shelter on the other side from the increasingly personal and hostile critics of his Roe v. Wade decision. But Justice Thomas' critics made sure that he would never make that trip. Thank you, movement liberals, for making quite sure that Clarence Thomas was immune to personal charm of the Brennan variety from the first day he first put on those robes.
Essentially, Musil argues that Ms. Miers is not a principled originalist. Ok, but, you can't have it both ways. If you argue that personal criticism will cause Ms. Miers to start issuing "living constitution" rulings from the bench, then you can't at the same time, argue that Ms. Miers is a principled originalist. If her judicial philosophy is informed by first principles that wed her to originalist interpretaion of the COnstitution, then she should make originalist rulings irrespective of her personal pique at her critics. The whole point of principles is to uphold them even if others disagree. If you cannot, then you don't have principles. You have preferences.
The argument is insulting to Justice Thomas, too, because it implies that his rulings arise not from a principled philosophy, but rather from an emotional reaction to being angered by liberals.
In any event, if Musil is right about Ms. Miers, then I wouldn't want her on the bench no matter what her qualifications were, because his argument implies that she has no judicial philosophy, except that which arises from her current emotional state.
Is it really going to be a good thing for conservatives to have a new Supreme Court justice who feels that she only made her way onto the Court by opposing conservatives, and that the Democrats and liberals were really not all that bad? Do conservatives really want to start Ms. Miers down the Blackmun-trod path before she even writes a single decision?
Is that what Mr. Krauthammer wants? More generally, do Mr. Krauthammer and his ilk really live on this earth? You wouldn't know it by me.
Well. I dunno. Musil's argument is that her temperament is so fragile, and her principles so fungible, that criticism by conservatives will turn her into another Harry Blackmun. If so, then it seems to me that those who oppose her can similarly argue that the blandishments of nice speaking engagements in Europe and glowing write-ups from the New York Times as she "grows" in her decision-making will turn her into Harry Blackmun, too. After all, if the stick of conservative criticism will turn her into Harry Blackmun, then the carrot of liberal praise will be just as effective.
So, one wonders why Mr. Musil doesn't just admit that she'll turn out to be another Justice Souter and be done with it. One also wonders why, if Ms. Miers is as unprincipled as Mr. Musil assumes, that he thinks she's worthy of his support.
I kind of have to agree with Mr. Musil. Harriet Miers will probably be confirmed and she will remember that the hysterical criticism of her came from the likes of Krauthammer and Coulter, not Kennedy or Leahy.
It probably wouldn’t change her basic philosophy or principles but it could make a difference on the margin.
Which, in fact, may be the purpose behind the hysterical criticism, as you cite. It seems to have worked before... on everyone that’s made it through their gauntlet thusfar.
I’m sorry. I have to observe that seeing Dale Franks make a post about bad arguments leaves needing a new irony meter. The needle on mine wrapped itself around the stop.