Posted 11:15 AM by Robert

Harriet, Meet Byron and Robert II

InstaPundit's link to the predecessor of this post (a link that I appreciate) comes with Glenn's note that he finds the comparisons of Ms. Miers to Byron White and Robert Jackson less than fully convincing.

I agree with Glenn.

At least, I agree with him if the comparison he describes is taken as arguing that because Robert Jackson didn't have a law degree, or because Byron White was a corporate lawyer and a personal friend of the president who appointed him, Harriet Miers must therefore be well-qualified.

But I think it's obvious that my post argues for no such sweeping conclusion - and I think Glenn is right to warn his readers not to make that kind of thing out of it. The post is instead directed at countering some specific arguments made by Ms. Miers' critics by adducing evidence that (i) accomplishment later is life (especially in the case of Justice Jackson) can be a very good substitute for whatever evidence of qualification for the Court service that is provided by a law degree or faculty appointment, (ii) close friendship with the president (especially in the case of Justice White) is good evidence neither of cronyism or that such a justice will be impaired on the Court, and (iii) a pre-confirmation career not involving frequent considerations of constitutional law (in the case of both men) is not good evidence of any infirmity in dealing with constitutional law on the Court.

Abe Fortas - who is generally thought to have worked out badly on the Court - may be evidence at least partially supporting Ms. Miers' critics. Fortas is widely viewed as having been a crony of President Johnson and he had no judicial experience prior to his appointment to the Court. On the other hand, Fortas attended Yale Law School, joined the faculty there after graduation and argued important constitutional cases in the course of his Washington legal career. So Fortas had plenty of the "credentials" and other signs of competence that some of Harriet Miers' critics say they value. But he had less of the ethical fiber, personal integrity and sheer guts that seem to reinforce her being.

On the larger question of whether Ms. Miers is the best pick the president could have made, or even an acceptable pick, I have not yet made up my mind. In making up my mind I will most certainly not be employing the preposterous - one might say notorious - criteria and arguments of George Will. Mr. Will thinks: It is not important that [Ms. Miers] 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. Mr. Will's thinking savors too much of Firesign Theater's High School Madness: "Give them a light, and they'll follow it anywhere. We think that is a fair, and a wise guy - rule to be gelded... guided ... by." Somehow, my copy of the Constitution omits that provision in Mr. Will's version about the importance of making Supreme Court appointments from some population of "leading lights of American jurisprudence" (whatever that means). My copy only says that the president has the important right to appoint to the Court, subject to the Senate's important right to advise and consent.

To understand just how preposterous Mr. Will's thinking is on this point it is worth noting that perhaps a handful of all persons ever appointed to the Supreme Court have been at the time of their appointments among the "leading lights of American jurisprudence." For a reality check, one might consider the fact that whether or not Harriet Miers is a "leading light," compared to the credentials of the justice she is replacing, Harriet Miers is a supernova. Moreover, the performances of such luminaries as have been appointed to the Court have been uneven, to say the least. Justices Holmes and Cardozo were "leading lights," for example. While the best years of both lay behind them in state courts, Holmes did well enough in Washington, although some of his federal decisions (in antitrust, for example) are just embarrassing, almost wordplay. ("I could carve out of a banana a judge with more backbone than that," Teddy Roosevelt exhaled over Holmes' opinion in Northern Securities, a case under the Sherman Antitrust Act, an opinion that opens with: "What we have to do in this case is to find the meaning of some not very difficult words." Most people familiar with antitrust law consider Holmes to have rather badly missed the point, to put it charitably.) And very few observers view Cardozo's performance on the federal bench as anything special - although he had made quite a splash in New York.

Does a Harvard Law School mandarin such as Felix Frankfurter count as a "leading light" for George Will? Frankfurter performed credibly on the Court despite his lack of prior judicial experience. Justice Scalia has had a stellar run on the Court, and he was at least arguably a "leading light" as both an academic and an appellate judge before being elevated to the Court. But was it more "important" to the nation that the Senate confirmed Justices Douglas, Breyer or Ginsburg because they had been on major law school faculties? I don't think so. Larry Tribe and hundreds of other academic blowhards eager for judicial appointments would like to think so, but the republic is a lot better off with those leading lights shining on right where they are. Douglas became an anti-intellectual embarrassment on the Court. And so far Justices Breyer and Ginsburg have turned out to be almost cramped technicians who seem most concerned to function as the safe liberal votes President Clinton intended them to be, where the far less "qualified" Clarence Thomas generally runs rings around them as someone with a coherent vision of the constitution and law generally. If one can know a man by his enemies, it counts that micro-Senator Harry Reid publicly hates Justice Clarence Thomas. Prior academic luminescence doesn't seem to strongly correlate to exceptional performance on the Court.

Returning to Mr. Will, do we need evidence that Miers' nomination resulted from the president's careful consultation with people capable of "sophisticated judgments about competing approaches to construing the Constitution" - which the president himself is not? Plenty of smart, fully aware people have advised Mr. Bush on such matters. What George Will means is that he doesn't like what Mr. Bush has done with that advice. But the Constitution correctly gives the decision to the president, not his advisers. And whatever Mr. Bush's deficiencies as a president may be, neither an inability to understand what is at stake in the choice among the currently popular ways of construing the Constitution (it's not rocket science) nor an insensitivity to the problems created by bad Supreme Court activism, are among them. His choice of John Roberts for Chief Justice, and his often and clearly expressed admiration for Justices Thomas and Scalia, are proof enough of that. Mr. Will's condescension is mostly unbecoming to Mr. Will - even a little bit creepy.

And did the president really "forfeit" his right as a "custodian of the Constitution" because he signed McCain-Feingold, as Mr. Will asserts? Even assuming that Mr. Bush should have resisted signing McCain-Feingold more than he did despite the overwhelming support of the bill in the Senate (which would likely have made a veto ineffective - a filibuster was ended by a cloture vote of 68-32), the president's foolish acceptance of a bad bill drafted by two misguided Senators and then passed by a large majority of those same silly people is hardly an argument for a bigger Senate role in populating the Supreme Court. And, again, my copy of the Constitution doesn't say anything about the president "forfeiting" any rights or responsibilities because he signs a bill somebody doesn't like - especially a bill whose constitutionality later survives Supreme Court review, as McCain-Feingold unfortunately has done so far.

I noted above that I haven't made my mind up about Harriet Miers. But this much I have decided: In such matters a clear head helps a lot, and to that end I definitely plan on keeping George Will's silliness as far from my thoughts as possible.

UPDATE: A very sensible article.