From a friend who knows what he's talking about ... unlike
George Will.
He begins by suggesting that President Bush is uninterested
and/or incapable of making sophisticated judgments about the SCOTUS
and judicial philosophies. This charge is patently unfair. The
President picked John Roberts, and has a stellar first term record
of selecting conservative judges for the appellate bench. There
hasn't been a single liberal in the bunch with the exception of
Rodney Gregory, whom the President obviously nominated as part of a
political compromise. This is a man who almost lost the Presidency
because of the liberal activism of the Florida Supreme Court. He
understands the power of the Court and has been serious about his
appointments in the past.
Will's second argument is that the President didn't consult with
serious people before making the choice of Miers. This is also a
specious charge. We know that the President consulted with 80
members of the Senate, including all of the Republicans on Senate
Judiciary. He also reached out to serious people like Leonard Leo
and Jay Sekulow. And he has serious, principled conservatives in
the White House Counsel's Office. These aren't cronies or toadies
who will only tell the President what he wants to hear. They are,
for the most part, very comfortable with the Miers choice. And some
of these people have seen Miers up close -- vetting the choices for
the first vacancy, taking Roberts through grueling moot court
sessions, and recommending judges for the lower courts.
Will's third argument is equally weak. He basically says the
President has forfeited his right to be taken seriously because he
didn't veto McCain-Feingold. As an initial matter, if the President
can't be taken seriously for signing it into law, the Senate can't
be taken seriously for having passed it. McCain-Feingold was a bad
law, but bad laws get enacted all the time, and at least the
President had the sense to have his political lawyers challenge
significant components of the law in court. The President has
expressed great seriousness about the Constitution during his
tenure, particularly as it relates to the power of the Executive
under Article II.
Will's fourth argument is the most dangerous and absurd. He
suggests Miers shouldn't be approved because she hasn't shown a
"talent" for "constitutional reasoning" honed through years of
"intense interest" and practice. Judging takes work, but the folks
who think "constitutional reasoning" is a talent requiring
divination, intense effort and years of monastic study are the
folks who will inevitably give you "Lemon tests," balancing
formulas, "penumbras" and concurrences that make your head spin.
The President sees through that mumbo jumbo and recognizes that
good Justices are the ones who focus on the Constitution's text,
structure and history and who call balls and strikes. Bush is in
favor of demystifying the Court and the Miers choice is part of
that effort. Will seems to be buying into the Nine Wisest Men
mythology that is a root cause of the Court's aggrandizement of
power over time.
Will's final argument is that Miers is an affirmative action
quota pick. Underlying this theme is a subtle snobbery that
conservatives should dismiss out of hand. One need not go to
Harvard or Yale Law or be a member of the right Inn of Court to
serve with distinction. Miers's career suggests she is plenty smart
and obviously hard working. She also happens to be an evangelical
who packs a gun and gives money to pro-life organizations. She's
served as a public official, a commercial litigator, a policymaker
and Counsel to the leader of the free world. These aren't the
qualifications that have led to appointments in the recent past,
but maybe they ought to be. Miers lives in the real world. She
knows what the practical impact of a Kelo decision will be
and that the laws of Nigeria and the European Union aren't terribly
relevant to U.S. constitutional analysis. And as important, the
people that she hangs out with don't give a hoot what Linda
Greenhouse and the New York Times think. That's not
evidence of a quota pick -- it's solid progress.
topics:
Constitution, Law, Supreme Court, European Union
