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.