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Wednesday, October 05, 2005

A Prissy Snit

Alfalfa fulminates.

CIAO. My my my. Get a load of George Will 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 several reasons.

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 those lists.

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!) constitutional.

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 Post bio. 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 interpreting.

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 to accept.

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 Harriet Miers:

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.

UPDATE:  Now here's an idea we can all get behind.







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