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October 07, 2005

Betraying Ideals

On the subject of Miers' qualifications, which I haven't written much about, I think folks are conflating two very separate things: the qualifications a Supreme Court Justice needs to have and the qualifications a Justice ought to have. On the first, Miers is probably just fine -- a longtime lawyer, literate, smart enough to understand the issues that whipped through the Oval Office. There's little doubt that she'll be able to comprehend the basic points of contention and then awkwardly reason her way through the a priori conclusions that most judges pass off as justice. Indeed, it's not even clear what intelligence gets you (and for a good take on that, go here). Scalia rules different from Stevens rules different from Breyer rules different from Souter. All four are powerful minds, skilled and talented at torching lawyers and demolishing problems. But that intelligence doesn't offer them some sort of platonic Truth, they just rule in the way their biases and training nudge, albeit with considerably more intellectual fireworks along the way.

But there is a sense in which nominees to the Court ought to be highly-skilled, highly-qualified, so brilliant they border on telekinetic. Few offices in America are as symbolically charged as Supreme Court Justice. Even the President, who's supposed to be the nation's brightest light, is widely-understood to be shackled to the grimy realities of politics. But the Court, those nine robed behemoths we've lovingly cloistered away from all other branches of government, all other points of influence, all because we want their awesome minds to whir without interruption or distraction. And, out of reach though that may be, it's good to have that symbol floating around the Republic, it's healthy.

When we elect presidents like Clinton and nominate judges like Roberts, we're reaffirming the meritocratic ideal. When we install dimmer bulbs like Bush and merely decent nominees like Miers, we're admitting that this is no meritocracy after all. And maybe that's better, certainly it's more honest. But part of the trick of keeping an America is living in the real, oft-tawdry country while affirming its mythic potentiality. Used to be that the Supreme Court and the Presidency were key in that. But Bush, Miers? We're supplanting meritocracy with nepotism and cronyism. Is that the message we want for our kids?

October 7, 2005 in The Supreme Court | Permalink


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As they say, what will we tell the children?

Posted by: Ugh | Oct 7, 2005 4:28:20 PM

You're so right! This championing of the average reminds me of something I wrote a few months ago:

How about the presidency? Why should it make us feel better when we see candidates flipping pancakes, going hunting or throwing a football? Sure, it makes them look human, but what does that mean? Isn't it a tad insane that we care more about whether we can have a beer with our president than whether we think he can save us from a fucking disaster or actually knows the difference between his asshole and a hole in the ground when it comes to foreign policy? If I wanted a president with whom I could drink a few beers, I'd vote for my friends. But they're not 35 yet. We used to have presidents like FDR. Now, we'd be lucky if President Bush could spell FDR, even if you spotted him the "F" an the "R."

... It's time to look past what we know we can do and try to discover what we think we could do. We used to challenge people to work to bring about a brighter future. Now, all we ask them to do is be themselves. That's a mistake.

Posted by: Joseph | Oct 7, 2005 5:12:52 PM

Ezra, nicely reasoned as always. Watch out for whatever's in the DC water - it seems to rot perspective after awhile.

Posted by: KrankyKim | Oct 7, 2005 6:48:42 PM

smart enough to understand the issues that whipped through the Oval Office

Objection. There is nothing in her public record to back this up and no way the White House is releasing any memos or information to prove whether this statement is correct. Which pretty much shoots the rest of your conclusions on "shucks she'll be an ok Justice" when it comes to Constitutional law. Face it, Miers is in no way qualified for the SC. Miers fails your needs test.

Posted by: evilchemistry | Oct 7, 2005 7:01:51 PM

By the way, how does this meritocracy stuff get applied to Chief Justice Roberts? Everyone's still going on about how brilliant he is, but I guess I'm just missing it. Basically, the President picked him, and just look at those cute kids. The biggest decision he made in his extremely brief tenure as a federal judge was probably Hamdan v. Rumsfeld, which demonstrated that:

(1) no matter what the Constitution says, the powers of the executive are effectively unlimited, and

(2) he'll join in a decision on a case even after one of the parties offers him a promotion.

No dazzling jurisprudence there.

So seriously, how does anyone know he's brilliant, since every thought he's ever had about anything was off-limits? Long-winded analogy mode ON. I decided to get into Princeton by pointing out that I'm brilliant, but they demanded an interview, as well as actual records demonstrating my brilliance. I naturally refused to disclose the records, and in the interview I wouldn't answer any questions about abstract, theoretical, or concrete matters, because that would be a "litmus test." Of course, I was admitted anyway, because they had to do what my powerful daddy told them to. All of this proves my brilliance. Long live meritocracy!

Posted by: mds | Oct 7, 2005 10:09:45 PM

smart enough to understand the issues that whipped through the Oval Office.

Political issues, not probably legal issues in the Constitutional sense. She headed the TX bar, and she CEO'd a prosperus TX legal firm. Both administrative or managerial tasks.

As for the WH duties, who knows?

I don't think she knows what she needs to know about Con Law, but Earl Warren probably didn't either. For some justices the clerks do most of the serious writing. She may be competent to give the clerks a version of her instructions from Bush, Cheney, Dobson et.al.

Where in Bush's administration can merit be found as justification for appointment? Snow, Rice, Rumsfeld, Gonzales? (hahaha)

Posted by: JimPortandOR | Oct 8, 2005 3:31:40 AM

Is That what we want to tell the children?

Well, no; but by the same token, kid, don't get a lot of illusions about who succeeds and why in this country. It's only nepotism and cronyism when you get caught.

Sorry, it's cynical day here on Sesame Street.

Posted by: weboy | Oct 8, 2005 8:31:18 AM

I have found this blog and this thread, in particular, very entertaining. He who gets the votes makes the picks...period. Not up for your review.
If Gore had been elected, it would be the same. He got elected and he chooses.... It's the whining and caterwalling that I find so enjoyable. "Waaaaaaaaaaa.....waaaaaaaaaaaaa....."

Posted by: Fred Jones | Oct 8, 2005 9:41:14 AM

I don't know Fred... I think Democrats are long past crying in their beer over Bush and his way with selecting poor nominees. It is what it is and he does what he does... badly. If anything, I've found the hand-wringing and tear-shedding way more prevalent on the right this go round than the left. From the left it's mostly... silence (which I think is a bit of a mistake), or a resigned, "yes, she's terrible, oh well. Could have been worse." It's why she will get confirmed. I also think, though, it's the reason Bush can't catch any breaks trying to undo the bad press of the past few weeks - Democrats cold loathing is a 40% negative rating he can't remotely fix, and now with independents and conservatives growing more unhappy, that's about it. I don't think I'm alone in not particularly shedding tears over the latest turn of events.

Posted by: weboy | Oct 8, 2005 12:06:54 PM

"I have found this blog and this thread, in particular, very entertaining. He who gets the votes makes the picks...period. Not up for your review.
If Gore had been elected, it would be the same"

Apparently not. As I remember, Gore got the vote, and it wasn't "period".

Posted by: Ezra | Oct 8, 2005 12:21:04 PM

So a discussion on whether intelligence or policy-acceptability is more important on SCOTUS nominees is worthless because... Bush got the most votes?

It's really weird. I was trying to discuss the nature of the Sunni insurgency and how wrong it is to assume they're getting help from Iran with my friend last night, when some random guy came up and said "Bush got the most votes! Get over it! WaaaWaaahhhh!"

Posted by: Tony Vila | Oct 8, 2005 12:27:06 PM

Compared to other Bush administration appointments, Miers is above average. After all, she's smart, hard-working, and has worked as a lawyer for decades. Contrast her with Michael Brown, an incompetent idiot with no background in disaster management.

It's funny hearing conservatives whine about Miers's qualifications, when they seemed perfectly happy with all the other incompetent Bush appointees.

Posted by: Julian | Oct 9, 2005 1:10:13 AM

As I remember, Gore got the vote, and it wasn't "period".

Hehehe...Gore did not get the electoral vote, and that is the only vote that counts, isn't it?

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