Talk among yourselves
In every quarrel among friends there is a risk that people will do grave damage by saying things they don't mean and wouldn't say but for their competitive desire to win the argument. Poorly chosen words can drive wedges between allies and defeat understanding. The firestorm over Harriet Miers has already raised a disturbing crop of poorly chosen words.
George Will's latest column is chock full of them. I'm a Will fan of long standing and, on the whole, I agree with most of the points he is trying to make. There is no reason to suppose that Harriet Miers is an especially impressive nominee, which is disappointing. There is no good reason to trust the jurisprudential judgment of the man who signed campaign finance reform just to win some half—hearted applause from the New York Times and despite the profound indifference of all but a handful of voters. This, however, begins to tip out of the zone of fair comment and into pompous ass territory:
It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.
Harriet Miers is an accomplished lawyer who has served as White House Counsel. Her nomination doesn't represent the abandonment of all standards and the reduction of the Supreme Court to a private plaything. She is certainly a more plausible choice than either I or George Will would be. Will is just a short step away from patrolling Pennsylvania Avenue with a sandwich board that reads 'The End is Nigh.' Loosen the bow tie and get a grip George.
Sadly George Will is not the only person getting separated from reality by the Miers flap. Some of those who defend the President's choice are in danger of losing their grip as well. The argument that we don't really need a brilliant nominee is doing the rounds in various forms. After all, look at the nonsense that brilliant justices have perpetrated over the years. Consider, for example, William O. Douglas, the man who gave us 'penumbras' and other imaginary friends. What we really need is common—sense justices with just enough wit to understand simple phrases like 'Congress shall make no law.' (Hugo Black call your office.) Thomas Lifson wrote yesterday that Roberts, Scalia and Thomas give us all the firepower we need and Harriet Miers can contribute other talents to the Court.
Whatever form it takes, the argument that there is no great need for more brilliant conservatives on the Court is dangerously wrong—headed. If you are under six feet you can't be an effective NBA center; if you weigh 120 pounds and run the 40 in twelve seconds you won't gain many rushing yards in the NFL; and if you haven't got extraordinary gifts as a writer and thinker you will have very limited impact as a Supreme Court Justice.
The best justices have influence that goes far beyond the deliberations of the court. The Supreme Court shapes the intellectual landscape of the legal elite which has tremendous impact on elites of every stripe. The ideas that prevail on the Court will ultimately prevail even in legal academia. Law professors have to accept the views of a stable determined and confident Supreme Court majority the way chemistry professors have to accept the periodic table.
Conservatives have a great deal of heavy lifting to do. For more than a generation the left has totally dominated the law schools with the result that conservative theories of judging are sadly underdeveloped. We are playing catch up and we need big guns on the Supreme Court if we are going to have any chance of success. Jurisprudence may not seem important, but conservatives, of all people, should understand that ideas have consequences. If we can't fight and win the battle of ideas we won't win anything.
Maybe Harriet Miers can be a big gun given the chance. But even her most ardent supporters must recognize that it isn't a percentage shot. We won't have any meaningful opportunity to assess her potential during the debased confirmation process she is about to go through. Senators will ask very few intelligent questions. If, like the blind pig with the acorn, they stumble on one, Ms. Miers won't answer it. This won't reflect badly on her because, assuming she wants to sit on the Court, she would be crazy to answer any intelligent questions with anything other than bland platitudes. If Madam Justice Miers is going to be a pleasant surprise we won't know it until long after she joins the Court.
Conservatives should stop chewing each other up over Harriet Miers. We should all be able to agree on a few key points:
1. Harriet Miers is not the fifth horseman of the apocalypse. She is, by all accounts, an excellent lawyer and a fine person. She deserves respect and if anyone treats her with contempt in the weeks to come let it not be any member of the home team.
2. Harriet Miers is very unlikely to have influence comparable to O.W. Holmes, Jr. She's probably more in the Tom Clark, Fred Vinson category, and that's disappointing. The President should strive to maximize influence with each appointment and this time he apparently didn't.
3. That failure looks for now like a gratuitously self—inflicted political wound. However we may wish it were otherwise, a lot of the President's most loyal supporters are very unhappy about the Miers nomination and they aren't likely to have any reason to change their minds soon.
Now can't we all just get along?
J. Peter Mulhern is an attorney in the Washington, D.C. area.