Wednesday, October 05, 2005

It's Not Rocket Science, And Maybe That's The Whole Point!

Interesting take on things here.


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 same 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' career suggests she is plenty smart and obviously hard working. She also happens to be a gun-toting evangelical who gives money to pro-life organizations and spends her free time taking care of her elderly mom. 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 given the nonsense regularly emanating from the Court 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.

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