Blogotional

George Will in WaPo

Such is the perfect perversity of the nomination of Harriet Miers that it discredits, and even degrades, all who toil at justifying it. Many of their justifications cannot be dignified as arguments. Of those that can be, some reveal a deficit of constitutional understanding commensurate with that which it is, unfortunately, reasonable to impute to Miers. Other arguments betray a gross misunderstanding of conservatism on the part of persons masquerading as its defenders.

Miers's advocates, sensing the poverty of other possibilities, began by cynically calling her critics sexist snobs who disdain women with less than Ivy League degrees. Her advocates certainly know that her critics revere Margaret Thatcher almost as much as they revere the memory of the president who was educated at Eureka College.

George, is that how allies talk to each other? That kind of rhetoric is precisely why the elitist charge is true -- it's not argument, it's insult. But let's get to the meat of the matter

In their unseemly eagerness to assure Miers's conservative detractors that she will reach the "right" results, her advocates betray complete incomprehension of this: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the constitutional meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path that the Supreme Court takes to the result often is the result.

This blog, for one has contended all along that the only question that really matters is her ability to deal with the constitution, and has debated that a "results' oriented approach is precisely the wrong one. But, George, this paragraph begs the question, "What evidence do you have that she won't interrupt the constitution strictly?" The only answer I have seen to date is that she lacks the "pedigree" - that is to say the Ivy League training, and bench experience. As I recall the framers did not go to Ivy League schools, certainly not all of them. Is it too much to ask to be presented evidence that she can't do the job before I am willing to criticise her?

Will being who he is -- lots of people with lots more credentials than I are going to tackle this piece (e.g. Hugh Hewitt) but I think this argument belongs to people like you and me, the elites have a stake in the elite system, and that system is a part of the problem here. (Here, thanks to Hedgehog Blog, is a great "average citizen rebuttal to Will by Presdient Aristotle.)My father is a "transactional attorney." That pretty much means he is a business man that went to law school. I think he has argued in front of the bar once in his life. My whole life, when a Supreme Court opening happened, he would wonder out loud at the dinner table when the President was going to call. Finally I got old enough to question him. His response was simple, "The court would be a lot better with more common sense and less legalese." He was right.

Ours is a citizen government. "Even you can grow up to be president." Shouldn't the same apply to SCOTUS? Hugh Hewitt has made this argument and makes it again in the post I link above -- Have you ever read the constitution? It ain't that hard. Pretty straightforward stuff. People "interpret" constitution-like documents every day. Ever been on an HOA? You spend half your life reading the CC&R's trying to figure out what you can and cannot do. Any HOA that keeps an attorney on retainer for such questions has dues that are way too high. Ever sat on a jury? That is the most basic application of the law we have, and we require ordinary citizens to do it, some of them barely literate.

Bottom line, all it takes to be on SCOTUS is the ability to read and to reason. You don't even have to be that familiar with legal research, you have clerks for that. To date the only arguments against Miers I have heard are "We don't know" and "Lack of credentials." The first argument is what the President's selection process and the Senate hearings are all about -- let them work. The second is elitism, pure and simple. I have known a lot of idiots with credentials, I have also known a lot of really smart people without them. Credentials are indicative, but they are not proof.

Blogger Irish Pennants hits it just right.

Democrats must be delighted with the early Christmas present they've been given. And the Harriet Miers nomination is a gift that keeps on giving. We conservatives are in a bus, heading for a cliff. Nobody seems to be steering, and most want to tromp down on the gas pedal.

Conservatives have engaged in lemming-like behavior before. The last time was the impeachment of President Clinton. He did perjure himself before a grand jury, which presidents ought not to do. But even if the half-eaten remains of small children had been found in the Oval office, the Senate would never have voted to convict Clinton, so his impeachment was an exercise in futility. A very unpopular exercise in futility, one which cost the GOP seats in the House and Senate in the 1998 congressional elections.

Every development in the Miers saga has been depressing.

Like just about everyone, I was disappointed that the president didn't nominate someone with stronger legal credentials and a more clear conservative record.

But I've been more appalled by the vicious, childish reaction to the nomination by many conservatives. I am not pro-Miers. I don't know enough about the woman to have a firm opinion. But I am, in Hugh Hewitt's formulation, anti-anti-Miers. Neither Bush nor Miers deserve absolute trust. A Supreme Court nomination is far too important for that. But on judicial nominations, Bush has earned, and Miers deserves, the benefit of the doubt until she's had the opportunity to speak for herself.

I've said it before and I'll say it again. Absent party politics, "conservatism" is just hot air. In the heat of an intra-party battle and in the heat of an inter-party debate in Congress, compromise must be made. That is the nature of our political system.

The failed nomination of a Luttig or Brown would have cost the President enormous political capital, as a failed Miers nomination threatens to do thanks to the likes of Will. It would have rendered him pointless on domestic matters. Remember what that is like -- the post-impeachment Clinton? The Watergate embattled Nixon? Better a nomination that succeeds and moves the court to the right some, than a failure that freezes the administration in place on everything.

Conservative power in this country will come as liberal power did -- slowly, in small steps. We are not trying to fix a problem here, we are trying to build something. That is the mindset to keep.

And while we're here TTLB is running a "blog poll" on the nomination (HT: Sheep's Crib) Here's my vote - I support the Miers nomination.