Outside the Beltway

Miers and the Defense of Excellence

James Joyner · Sunday, October 23, 2005 · 5 comments

In a column that was generating buzz several days before publication, George Will argues that Harriet Miers’ defenders are making “unseemly” arguments in her defense.

In their unseemly eagerness to assure Miers’ 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 Constitution’s 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 the Supreme Court takes to the result often is the result.

As Miers’ confirmation hearings draw near, her advocates will make an argument that is always false but that they, especially, must make, considering the unusual nature of their nominee. The argument is that it is somehow inappropriate for senators to ask a nominee — a nominee for a lifetime position making unappealable decisions of enormous social impact — searching questions about specific Supreme Court decisions and the principles of constitutional law that these decisions have propelled into America’s present, and future.

To that argument, the obvious and sufficient refutation is: Why, then, have hearings? What, then, remains of the Senate’s constitutional role in consenting to nominees?

It is not merely permissible, it is imperative that senators give Miers ample opportunity to refute skeptics by demonstrating her analytic powers and jurisprudential inclinations by discussing recent cases concerning, for example, the scope of federal power under the commerce clause, the compatibility of the First Amendment with campaign regulations, and privacy — including Roe v. Wade.

This is, of course, right. A long tradition exists, though, of nominees successfully avoiding substantive answers to such questions on the grounds that they may have to rule on them if confirmed and that it would compromise judicial independence if they were to essentially promise Congress to vote in a certain way.

Can Miers’ confirmation be blocked? It is easy to get a senatorial majority to take a stand in defense of this or that concrete interest, but it is surpassingly difficult to get a majority anywhere to rise in defense of mere excellence.

Still, Miers must begin with 22 Democratic votes against her. Surely no Democrat can retain a shred of self-respect if, having voted against John Roberts, he or she then declares Miers fit for the court. All Democrats who so declare will forfeit a right and an issue — their right to criticize the administration’s cronyism.

[…]

As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch’s invaluable dignity. Finally, any Republican senator who supinely acquiesces in President Bush’s reckless abuse of presidential discretion — or who does not recognize the Miers nomination as such — can never be considered presidential material.

I agree with the first of these assertions but not necessarily the second. We have not yet had hearings. While sufficient evidence exists to put the burden of establishing “excellence” falls on Miers and her boosters, it is not out of the realm of possibility that she could perform brilliantly before the Senate and win the day.

Republican Senators who vote to support Miers merely because she is the president’s choice or because they are confident she will vote to overturn Roe would indeed render laughable any rhetoric about “judicial activism.” But it is not inconceivable that they might find her genuinely qualified after careful consideration of her performance before the Judiciary Committee.

Plenty of conservatives with fine legal credentials think Miers qualified. See Hugh Hewitt and Beldar‘s many posts on the subject. But I side with those who say that we can do better. William Stuntz captures that argument brilliantly:

Harriet Miers is to the Supreme Court what Dan Quayle was to the vice presidency: a sign of rising standards. And here’s the really good news: That proposition will hold even if, like Quayle, she winds up holding the office for which she was unwisely selected.

[…]

The elder George Bush could be excused for thinking he had made a better selection than, say, Dwight Eisenhower 36 years earlier: Eisenhower too tapped a young senator (Quayle was 41; Richard Nixon was 39) with a special interest in foreign affairs, one with only half of Quayle’s service in Congress.

Thankfully, standards change, sometimes for the better. American voters took a look at Quayle and concluded, rightly, that he was not ready for prime time: not–at least not yet–a plausible president. Politicians noticed. Every major-party vice-presidential candidate since Quayle was a plausible president: someone who, given the right circumstances, might get a major-party nomination for the top spot on the ticket. Not since the early years of the republic have we had such a long stretch of high-quality vice-presidential candidates. The voters seem to have decided that the historical practice of picking lightweight would-be vice presidents in order to satisfy some local constituency was no longer acceptable. American politics and government is healthier because of that judgment.

Miers seems less well qualified for her soon-to-be job than Quayle was for his. Even so, she clears the historical bar with room to spare. Plenty of former justices had legal educations that were no better than Miers’s; plenty more had no judicial experience before joining the high court. Few justices have had any record of constitutional scholarship, or indeed scholarship of any sort. Based on her published writing, Miers has a sloppier mind and pen than most of her judicial predecessors. Even on that score, though, it’s hard to argue that she is the worst appointment of the past, say, 40 years–if you think otherwise, take a look at Warren Burger’s judicial corpus. Just as we had a long tradition of underqualified vice presidents, we also have a long tradition of eminently forgettable Supreme Court justices.

Quite right. Miers is at least minimally qualified for the Supreme Court. But we can surely do better.

Related:

Bloggers Taking a Stand on Miers
White House Considering Miers Pullout Options?
Miers Conference Call
Graceful Way Out for Miers?
Miers Questionnaire, Take II
Miers Asked to Provide More Detail on Questions
“Real†Conservatism Redux
Circling the Wagons on Miers (Stotch)
Bizarro Conservatism™ (Stotch)
On Harriet Miers (Stotch)
Elitism Redux
Miers Debate Shows Elite-Mainstream Conservative Divide
Conservatives Split Over Harriet Miers
Harriet Miers: Not So Mediocre?
Harriet Miers: Upon Further Review, Still Mediocre
Harriet Miers Nominee for Supreme Court
Bush̢۪s 2nd Supreme Court Pick Expected Soon
President Working on O̢۪Connor Replacement