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October 06, 2005

George Will Hits One To The Cheap Seats

Yesterday George Will wrote a column that was stunning in its arrogance and snide condescension, even when one pauses to consider that it was written by George Will. I make no demur from his opening lines, though I could not disagree more with the callow and sloppy rhetoric he uses to justify them:

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be.

It is, indeed not important that Miers be confirmed merely for the sake of confirmation. This process should not be a rubber stamp. Ms. Miers, and this nation, deserve a rigorous, thorough examination of her philosophy and qualifications. And it might indeed be very important that she not be confirmed, should it come out during the hearings that she is unsuitable. That has yet to be proven, and is the entire purpose of the confirmation process should some of our more excitable brethren decide we are entitled to have the Constitutional process play out as the Founders intended.

Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

The President is tasked with the power of appointment by the Constitution. It is an enormous task. Indeed, it is one of the reasons I voted for him, and he has (with Ms. Miers' able assistance, I might add) done a stellar job so far of appointing nominees to the federal bench. But then being President is an enormous job. Many are outraged because they assert the President asks us to "trust" him. Nonsense. He has no more done that with this nomination than with any other nomination he could have made.

As conservatives have seen to our cost in past years, Senatorial examination of a nominee's prior judicial record doesn't magically predict everything we wish it would. Witness the Reagan administration's recommendation of known pro-lifer Sandra Day O'Connor. As HumanEvents notes, somehow The Great Communicator failed to 'communicate' her record on abortion to the Senate, and they certainly failed to uncover it. Those who argue the Senate (or anyone else) is able to divine how a nominee will rule from their appellate decisions are willfully ignoring history.

In 1991, NRO assessed Clarence Thomas' judicial record on issues other than civil rights as more Souteresque than Borkian, yet Thomas has proved a more faithful originalist than Antonin Scalia. Such was my assessment of his character, not his record, from the moment I first heard of him. He is a careful, quiet, thoughtful, plain-spoken man, not given to flights of fancy. Such a man respects rules, I thought at the time. Such a man is stable over time. He does not blow with the wind.

"Souteresque" indeed. The truth of the matter is that like it or not, we appoint people to the Supreme Court of the United States. In the end, it is more likely to prove their essential character, rather than their 'judicial philosophy' (John Roberts claims to have none) or decisions made at a lower level of the legal system, which determine how they evolve once on the bench of the nation's highest Court. Their character determines their philosophy, rather than the other way around. Bush is smart enough to know that. George Will, with all his sneering intellectual pretension, is not.

Some conservatives don't want to hear this line of reasoning. They want to reduce this nomination to a spreadsheet formula: Ivy League education, x years on the appellate bench, the right checks in the right blocks. The fact that these 'safeguards' have not yielded satisfactory results in the past doesn't give them a moment's pause: they have their little clipboards out and mechanical pencils at the ready. No outside-the-box thinking allowed. That these same conservatives have been vociferously unhappy with the direction the Court has taken in recent years is no reason to consider a new tack. That many of these same conservative commentators have admitted that a candidate with the desired credentials would never pass Senatorial muster is also mysteriously not relevant.

No sir - we must do things the way they have always been done...even if they haven't always been done that way.

Mr. Will offers several objections to Ms. Miers' nomination. The first he splits, inexplicably, into two parts in his essay:

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks.

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.

One is reminded that these "leading lights of American jurisprudence" discovered, within the plain text of the Constitution, such priceless intellectual treasures as penumbral rights to privacy, of which Mr. Will no doubt approves. And then there are such highly-regarded (by conservative Constitutional scholars) gems of legal reasoning as the Lemon Test, of which the sainted Antonin Scalia once remarked:

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.

And who can forget that these 'leading lights of American jurisprudence' just drove a stake through the hearts of Lopez and Morrison, making a travesty of the notion of any enforceable limit on the Commerce Clause? Or that they cannot, apparently, in all their wisdom discern the plain meaning of the Public Use Clause, resulting in inexplicable decisions like Kelo?

George Will wants to save the Constitution from any soiling contact with the plebians of this great nation. God forbid we substitute a bit of real-world experience and down-to-earth reasoning (such as a contract lawyer, who is used to strictly construing wording, might bring to the task; or a White House Counsel, who sees a huge variety of legal issues cross her desk and must have the mental adeptness to deal with all of them) for the type of attentuated logic that we've been seeing out of the Court for the past few years.

His second argument is, as it happens, both repugnant and easily refuted:

[Bush] has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Interestingly enough, it has been Miers who has advised Bush in this capacity. The result has been a string of judicial appointments widely lauded by conservatives and deplored by liberals. Some (though evidently not George Will) might see an ability to sift through Constitutional issues and assess judicial philosophy in a counselor who has been so successful in identifying quality nominees. But this point is even more appalling:

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."

This is a mystifying argument. The conservative Maginot Line seems to be that only super-duper legal scholars can sit on the Court and answer thorny Constitutional questions. But according to George Will, the President, who is not a legal scholar by any stretch of the imagination, has forfeited the nation's trust because he does not imagine himself in black robes doing what Will himself says cannot and should not be done.

If this is brilliant reasoning, please spare me the rest. But what do I know? I'm just a housewife with a BS. I have no law degree. I'm not even a professional pundit. I have no absolute moral authority to weigh in on this issue.

In Hedgepeth v. WMATA, John Roberts opined that the law was flawed, but declined to exercise his judicial power to overturn it. He left that to the legislature - in my opinion, a properly restrained exercise of his Constitutionally-given authority. And in due time the law was fixed by the proper branch. Thus the three branches of government functioned as the Founders intended, none overreaching their scope of authority. This wise course of action does not recommend itself to Mr. Will, however, when it comes to the Executive Branch, arguably the most powerful of the three branches of government and the one most in need of self-restraint.

Bush thought McCain-Feingold "might" be flawed, but recognized that it really isn't his job to interpret the Constitution. He therefore respected the role of both Congress and the Courts and signed it into law. In 2003, SCOTUS upheld the Constitutionality of McC-F, apparently vindicating Bush's restrained application of Executive Power. I think the Founders would approve this lack of "executive activism". As a good conservative, I certainly do. But then I'm not as smart as George Will. My reasoning powers are not as highly developed. You see, there's no proof of that on my resume. Undoubtedly the only way I could ever be hired to any higher position of authority would be as the result of cronyism or affirmative action.

Mr. Will closes by impersonating Miss Cleo and going inside the mind of the President to divine his innermost reasons for nominating Harriet Miers. After all, Bush is not a smart fellow like George Will, and Lord knows if the great man himself can't imagine a single good reason to justify Miers' nomination, then the only possible explanation is, well, she's an affirmative action hire:

Under the rubric of "diversity" -- nowadays, the first refuge of intellectually disreputable impulses -- the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation. Identity politics holds that one's essential attributes are genetic, biological, ethnic or chromosomal -- that one's nature and understanding are decisively shaped by race, ethnicity or gender. Categorical representation holds that the interests of a group can be understood, empathized with and represented only by a member of that group.

The crowning absurdity of the president's wallowing in such nonsense is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing Miers, deplored judges who "legislate from the bench."

And as proof positive that this was indeed Bush's intent, Mr. Will descends to the level of the New York Times, dragging out the anecdotal quote used to shore up a faulty premise:

Minutes after the president announced the nomination of his friend from Texas, another Texas friend, Robert Jordan, former ambassador to Saudi Arabia, was on Fox News proclaiming what he and, no doubt, the White House that probably enlisted him for advocacy, considered glad and relevant tidings: Miers, Jordan said, has been a victim. She has been, he said contentedly, "discriminated against" because of her gender.

Yes, that sounds just like the White House.

I thought I'd seen low. But I guess in punditry, as in limbo, there is always someone who can stoop just a bit lower.

Posted by Cassandra at October 6, 2005 07:07 AM

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Wait, I'm confused. Did a self-styled "conservative" just take the word of a former ambassador to SAUDI ARABIA as gospel? I thought the "conservatives" deplored the gravy train that connects the State Department and the Desert Kingdom. I guess I'm not an intellectual either.

Thank God.

Posted by: Chris at October 6, 2005 03:30 PM

I don't think any of us are as smart as George Will. The world, sadly, is populated with lesser beings.

It must be very lonely for him.

Posted by: Cassandra at October 7, 2005 06:29 AM

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