Wednesday, October 05, 2005

Unstated assumptions (Miers)

Jonah Goldberg, over in the corner this morning, is addressing Harriet Miers' qualifications. Ostensibly addressing, he's actually implicitly buying into the concept that she's unqualified.
Obviously, one course they could take to derail Miers is to attack her credentials. This must surely be tempting for some who don't want to knock the president's prerogratives, a female nominee or sound like they're reflexively opposed to Christian conservatives.

Here's the trap. Miers by all accounts is tireless at doing her homework. If she does show up at the hearings and can actually duke it out over the fineries of constitutional jurisprudence, the Democrats will have no place to go (and, I might add, neither will many conservative critics).

This might mean Miers is in for the Mother-of-All-Cramming-Sessions. (emphasis added)

Look, I'm certain that, whatever her current state of knowledge, she, as any nominee would be, is in for "the Mother-of-All-Cramming-Sessions." But the statement seems to take, as one of its baseline assumptions, that she doesn't know the things that a Supreme Court nominee ought to know. And I don't see any reason for making that assumption. Even if you want to make the assumption that she was unqualified 5 years ago to evaluate constitutional issues (and I see no reason for making that assumption), she's spent the last five years leading the effort to evaluate and select judges for the appellate courts. Is it remotely conceivable that a hard-working, intelligent, trained lawyer could spend five years in that position and not come away capable of "duk[ing] it out over the fineries of constitutional jurisprudence" with Pat Leahy and Joe Biden? Please. And yet that's what Jonah's take on it seems to imply, that it would somehow be a big surprise if she were able to hold her own in the Judiciary Committee hearings. I think it would be far more shocking if she couldn't.

It is all part of a pervasive attitude, that there's a certain cloistering necessary. You've got to be a member of the fraternity of judges and/or law professors, otherwise you're just incapable of discussing and deciding constitutional issues. And yet that cloister produced the people that thought McCain/Feingold didn't violate the first amendment (and again, shame on George Bush for signing it), people who think that the phrase "to regulate commerce ... among the several states" means that California can't allow its residents to grow marijuana for their own use, and people who can say, as the California Supreme Court did, "we perceive no reason why both parents of a child cannot be women." Frankly, it seems almost imperative that we get some judges from outside the cloister...

Over at ConfirmThem, Carol Platt Liebau has some similar thoughts. And there's more, from Tom Bevan at

Just to be clear, if you scroll down, you'll see that I've been clear that I think Miers was a disappointing pick. I absolutely understand conservative disappointment with it - I'm disappointed, too. What I don't agree with is the attitude that her background automatically leads to the assumption of incompetence. I don't see it.



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