Saturday, October 08, 2005

Unqualified? Mediocre?

Perhaps it is just me, but when I hear people who know next-to-nothing about the law or legal practice, let alone Supreme Court jurisprudence, squawking that Harriet Miers is "unqualified" or has a "mediocre" record, I have to question their motives. When I hear somebody who actually has a law degree, and a history of non-legal writings and columns which play fast-and-loose with the facts, join that reactionary circus... well, then I know I'm hearing somebody who probably knows better. (Is Coulter truly mad because Bush didn't pay homage to the Federalist Society? Does she truly believe that only a conservative nerd from an elite law school is qualified to serve on the Supreme Court? Perhaps she's jealous?)

Let's be honest about the panoply of right wing judges who were groomed and positioned to take the seat now to be filled by Miers - their resumes which ostensibly qualify them for the job are a product of politics. This isn't to say that they aren't bright, or even brilliant - but it is beyond question that they have been guided from above through what had been deemed a necessary series of jobs and judicial positions to ensure that they would be deemed "well qualified" by the ABA, while avoiding any public position that would mark them as extremist. The goal was not only to create a list of possible Supreme Court candidates who had the required resume and judicial philosophy, the goal was also to create a range of candidates who would win confirmation even were there a Democractic majority in the Senate.

The criticism of the Miers nomination that I feel is most relevant is that found buried in George Will's invective:
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.
In an essay that is only slightly less puerile - falling somewhere between Will's call for experience with the issues and Coulter's ire that the carefully groomed roster of right-wing candidates was ignored - Charles Krauthammer agrees:
To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.
The Bush Administration's response, that she's some sort of an outsider with real-world experience, who will improve the Court by being unfamiliar with precedent, is unappealing - and one that I wish Miers herself would disclaim. At least if it is untrue. ("I'm not pleased with the way my car is running... maybe I should add some Coca Cola to the gas tank.")

I cannot imagine that the right-wing angst is truly about Miers' resume, the law school she attended, or the firm where she worked. Had Miers spent a few years serving as a federal appellate judge - a position to which she would have been easily confirmed with her conservative critics pouring scorn on anyone on the left who raised their present objections - their complaints would seem petty. But had that occurred, it is more likely that they would know her - that is, have some sense of her capacity as a judge and her approach toward the law and Constitution.

I don't think they care at all that Miers is not a law review editor from an elite law school, who clerked for the Supreme Court and worked for an elite firm before moving into government work and, ultimately, being appointed to the federal bench. I think they are concerned because they recognize that somebody who has not spent a great deal of time contemplating constitutional issues is unpredictable. Her politics may be perfect, but that doesn't mean she won't set politics aside if she is persuaded that the law dictates a different result. And it doesn't mean that, when she is compelled to think deeply about constitutional law issues during her service on the Court, she won't find that deeper thought leads her to reconsider her prior position.

That is to say, I think the primary concern among the right about Harriet Miers is not that she will be a thoughtful judge who will consider the issues, and not legislate from the bench. I think their fear is that she will do exactly that. When they protest that they don't want a judge who will "legislate from the bench", they mean that they want a judge whose politics both known and set in stone, and who can be expected to consistently apply those politics from the bench. A call for a Justice "in the mold of Thomas and Scalia" is a call to upset a century of precedent that most Americans take for granted. The argument that their activism is acceptable because it ostensibly "undoes" past activism seems hypocritical.

As for President Bush, I don't think he cares that his preferred nominee doesn't have "the right pedigree". He personally believes she is a suitable candidate, and he learned a lesson from the Roberts nomination that if you nominate a candidate whose views are unknown, you leave your opponents little to work with. He does not seem to have the patience to appoint her to the Court of Appeals and hope that another Supreme Court opening comes along - and I think that he views such a move as unnecessary resume padding, particularly given the Republican Senate majority. I believe that he fully expects her to advance his agenda, and the assertion that somebody needs to be "more intellectually qualified" for a job seems to raise his hackles. (Despite the Krauthammer-style prattle - "There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president?" - Miers has a better resume than what? Probably 99.5% of practicing lawyers?)

On Bill Maher's show last night, Ann Coulter responded to the question of why the political right found Miers to be unacceptable, while it had acquiesced to the repeated appointment of underqualified and unqualified nominees to a host of government positions. Her response was to the effect that "The Supreme Court is different". Without endorsing Coulter's implicit suggestion that it is okay to nominate poorly skilled people to other federal posts, I think that the Supreme Court truly is different. But President Bush has never given me the slightest impression that he shares that perspective. If anti-Miers conservatives are not comfortable with how President Bush approaches his job, well, perhaps they should have gotten to know him better before working so hard to elevate him to the Oval Office.

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