. My my my. Get a
load of George
on the Miers nomination:
Senators beginning what ought to be a
protracted and exacting scrutiny of Harriet Miers should be guided by
three rules. First, it is not important that she be confirmed. Second,
it might be very important that she not be. Third, the presumption --
perhaps rebuttable but certainly in need of rebutting -- should be that
her nomination is not a defensible
exercise of presidential discretion to which senatorial
deference is due.
It is not important that she 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. The president's
``argument'' for her amounts to: Trust me. There is no reason to, for
He has neither the inclination nor the
ability to make sophisticated judgments about competing
approaches to construing the Constitution. Few presidents acquire such
abilities in the course of their prepresidential careers, and this president, particularly, is not
disposed to such reflections.
Furthermore, there is no reason to
believe that Miers' nomination resulted from the president's careful
consultation with people capable of such judgments. If 100 such
people had been asked to list 100 individuals who have given evidence
of the reflectiveness and excellence requisite in a justice, Miers'
name probably would not have appeared in any of the 10,000 places on
What a jackass. Honestly. Let's be clear what is being proposed here:
that in order to preserve the Constitution, we must dispense with the
Constitution and employ confirmation rules dreamed up by a twit in a
snit. Who are we to consult for the purpose of identifying 100 people
who are capable of making "sophisticated judgments about competing
approaches to construing the Constitution"? Let's take a wild guess.
Would it be George Will? But he doesn't answer that question exactly.
There's much too much showing off to do. For example:
(C)onstitutional reasoning is a talent
-- a skill acquired, as intellectual skills are, by years of practice
sustained by intense interest. It is not usually acquired in the normal
course of even a fine lawyer's career. The burden is on Miers to
demonstrate such talents, and on senators to compel such a
demonstration or reject the nomination.
We told you yesterday
this whole thing was about snobbery. The tirade
quoted above demonstrates that and something else; the snobbery is
being amplified by pure dudgeon about a number of conservative beefs,
including Will's pet peeve:
(T)he president has forfeited his right
to be trusted as a custodian of the Constitution. The forfeiture
occurred March 27, 2002, when, in a private act betokening an uneasy
conscience, he signed the McCain-Feingold law expanding government
regulation of the timing, quantity and content of political speech. The
day before the 2000 Iowa caucuses he was asked -- to insure a
considered response from him, he had been told in advance he would be
asked -- whether McCain-Feingold's core purposes are unconstitutional.
He unhesitatingly said, ``I agree.'' Asked if he thought presidents
have a duty, pursuant to their oath to defend the Constitution, to make
an independent judgment about the constitutionality of bills and to
veto those he thinks unconstitutional, he briskly said, ``I do.''
Let's go Mr. Will one better and actually think about the argument he
is trying to assemble here. First of all, interpreting the Constitution
is a talent -- unless it's a skill (Which is it, George? Those aren't
synonyms in my dictionary) -- that can only be acquired by highly
trained specialists who represent only a subset of all attorneys. It
can't be done by amateurs, and no amateur should even try. Oka-a-a-y.
George Bush isn't an attorney of any kind. Under what article of the
new George Will Constitution would the President have the right to
pass judgment on the constitutionality of McCain-Feingold? Oh. Of
course. Under the article (or its penumbra) which legitimizes all
executive actions congruent with the intellectual or emotional whims of
the Founding Father, George Will. But instead, the President deferred
the matter of McCain-Feingold's constitutionality to the U.S. Supreme
Court -- i.e., highly trained specialists in interpreting the
Constitution -- who proceeded to declare it (drum roll, please!)
Well, by Mr. Will's own argument with respect to the Miers
nomination -- remember what he started ranting about in the first place
-- this outcome means that the President (if he thought McCain-Feingold
was unconstitutional) was wrong, and the great intellectuals of the
court were right. So what is George Will's beef? That he disagrees with
the highly trained specialists of the court. Hmmmm.
Will was born in Champaign, Ill., and
was educated at Trinity College in Hartford, and Oxford and Princeton
universities. Prior to entering journalism, Will taught political
philosophy at Michigan State University and the University of Toronto...
This is a quote from Will's Washington
Very nice education. Very impressive. One slight problem, though. No
sign of a law degree or "years of practice sustained by intense
interest" in constitutional reasoning.
There's plenty of room to criticize George Bush for failing to veto
McCain-Feingold, but it's no more than pompous rhetoric to declare that
the President has "forfeited his right to be trusted as a custodian of
the Constitution." Particularly in light of the Supreme Court's
decision to uphold it AND the astonishing conclusion reached by George
Will that the Senate somehow merits the trust he no longer feels
for the President. His hopes for the senate are lofty indeed:
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.
Standards of seriousness. Right. Are we allowed to ask who it is that
passed McCain-Feingold into law? Who? Oh. The Congress, including
approximately the same senate that is now miraculously endowed with the
"sophisticated judgment" to detect either the talent or the skill
George Will requires, whenever he decides which it is. The approximate
same senate that gave 97 votes to Ruth Bader-Ginsberg, who never met a
clause of the Constitution she wouldn't be happier rewriting than
From this point on, Will's tantrum degenerates into a charge of
victimhood the nominee seems to have spent a lifetime eschewing. We can
safely ignore all that part of the denouement. But what are we left
with? A columnist with no law degree has more authority to select
supreme court nominees than a non-lawyer president who has disappointed
the columnist's political expectations.
Time to correct a few misimpressions. Supreme Court judges are not the
democratic equivalent of Vestal Virgins. They don't follow a special
diet, breathe special air, and they don't live in sacred temples. Nor
for that matter do they have to be lawyers, any more than the
Constitution's authors had to be. Benjamin Franklin had some pretty
impressive reasoning skills, but no law degree.
The Constitution does not say that if the President isn't intellectual
enough to suit the educational snobs of his generation that he must
find 100 smarter people to make his supreme court selections for him.
(We'd dearly love to have witnessed the outcome of the duel that would
followed George Will's attempt to give this particular lecture to
Andrew Jackson. Oh well.)
The inflated demands in this piece remind us of another blowhard's
famous canard (Carl Sagan, Cornell, no law degree)
that "extraordinary claims
require extraordinary proof." As a matter of fact, they don't. They
require exactly the same kind of proof needed for ordinary claims.
Presidents have selected supreme court justices for all kinds of
reasons, including politics, friendship, and legitimate credentials.
The founders knew this would happen. That's why they gave the senate a role
in advice and consent. Not because the senators would turn out to be
better or smarter than the President, but because government
appointments take place in the arena of politics and open political
proceedings tend to be more noisy and less corrupt than closed
political proceedings, except when it's the other way around. That's
one of the many many flawed compromises our form of government asks us
Those who don't accept such compromises are free to propose their own
rules, as George Will has done. God bless his First Amendment right to
speak down to the rest of us. Perhaps we should follow his lead. Here
are three rules we think will improve the confirmation process for
1. Don't ever take seriously any sermon delivered by an adult
male who is wearing a bowtie.
2. Don't ever forget that lawyers are great at causing trouble and
rarely competent at fixing it..
3. Regardless of what happens in the Miers hearings, we will -- most of
us -- continue living our lives as if the terrible outcome of the
confirmation process had never occurred.
Now get some rest. Relax. Do something that makes you feel good and
happy today. Here endeth the lesson.