Friday, October 07, 2005


cronePeople have been writing that Prez Bush picked Harriet Miers for the Supreme Court because of "Cronyism." That's cold, dude. I mean, like, she's no spring chick -- but I don't think she looks like a crone and I don't think Dubbya picked her just because she is old and wrinkled. She does sorta look like one of my mom's friends at church when I was a kid -- the older lady who always brought the three-bean salad to the Wednesday night pot-luck supper in the parish hall. She was Mrs. Somebody (I don't remember her name) and there never seemed to be a Mr. Somebody around so she might have been a widow, or she might have been divorced, or maybe Mr. Somebody didn't like three-bean salad. I never wondered about it then and its too late to wonder about it now. It doesn't matter. The thing is that in her hair-sprayed, funny-smelling way she was a good person -- and I'm sure Harriet Miers is too.


miersOK, I do know the meaning of the word "Cronyism" and I can see how it applies -- but I must admit I have always thought it to be an overrated vice since it is the opposite of credentialism which is worse. I'll talk more about the Miers nomination in a minute, but first a non-sequitur.
For example, there is one element which must always tend to oligarchy--or rather to despotism; I mean the element of hurry. If the house has caught fire a man must ring up the fire engines; a committee cannot ring them up. If a camp is surprised by night somebody must give the order to fire; there is no time to vote it. It is solely a question of the physical limitations of time and space; not at all of any mental limitations in the mass of men commanded. If all the people in the house were men of destiny it would still be better that they should not all talk into the telephone at once; nay, it would be better that the silliest man of all should speak uninterrupted. If an army actually consisted of nothing but Hanibals and Napoleons, it would still be better in the case of a surprise that they should not all give orders together. Nay, it would be better if the stupidest of them all gave the orders. Thus, we see that merely military subordination, so far from resting on the inequality of men, actually rests on the equality of men. Discipline does not involve the Carlylean notion that somebody is always right when everybody is wrong, and that we must discover and crown that somebody. On the contrary, discipline means that in certain frightfully rapid circumstances, one can trust anybody so long as he is not everybody. The military spirit does not mean (as Carlyle fancied) obeying the strongest and wisest man. On the contrary, the military spirit means, if anything, obeying the weakest and stupidest man, obeying him merely because he is a man, and not a thousand men. Submission to a weak man is discipline. Submission to a strong man is only servility.

The paragraph above is from G. K. Chesterton's What's Wrong with the World, Chapter IV. I had dimly remembered it as supporting a point I wanted to make but, having tracked it down, it is rather oblique for my purposes. Chesterton's prose is always a joy so I pasted it in anyway. My advice would be to follow the link above and read the whole Chesterton book before you finish reading this posting. I'll wait for you and you will be a better person for doing it.
. . .
Back, are we? (Or still here -- oh, well. Your loss.)

What I was looking for Chesterton to say was that the task of calling the fire brigade is merely a job -- that it would be a waste of talent for the best and brightest man in the building to stand by the telephone sniffing for smoke, and certainly that any time spent making sure that the best-qualified man was selected would be wasted effort since anyone who could operate a telephone would do fine. But that's not exactly what he said, so the task falls to me to say it. I have no reason to believe that Harriet Miers is one of the finest legal minds in the country -- she could be, for all I know, but I don't care. Sitting on the Supreme Court is, and ought to be, just a job, and I think that the justices we already have now are too clever by half.

The Constitution is neither a very long, nor a very complicated document, and I am not sure we are well served by having it interpreted by by jurists whose legal theory includes emanations, penumbras, string theory, quantum jurisprudence or relativistic tort-tunnelling at the constitutional event-horizon. I am not saying that intelligence is a bad thing in a Supreme Court justice -- several of them have built considerable structures of legal theory that are firmly rooted in the text of the Constitution -- but that having a bent for advanced legal theory does entail a temptation to build legal castles in the air which, not being firmly grounded, tend to sway and drift with the winds of politics and the passions of the day -- or the passions of the judge.

So the question that interests me is not whether President Bush has picked the best qualified candidate for the job -- using the usual metrics of legal eminence -- but whether he has picked an at-least-minimally qualified candidate who understands the proper limits of the courts. President Bush clearly believes that is what he has done and he very well may, in fact, have done just that. Since Ms. Miers has done very little writing on constitutional law it is difficult to say.

Many of the president's conservative supporters are angry about the Miers pick. They worked hard to put in place the political clout needed to force a showdown on the role of the court, which they (we) feel to be seriously out of whack. The president's choice of a "stealth" candidate feels like a betrayal -- their leader is pulling them back from the verge of victory. Robert Bork -- whose own failed nomination for the Supreme Court perfectly exemplifies the problems faced by a brilliant, outspoken legal scholar with a generally conservative paper trail -- is quoted in an AP story as expressing this frustration:
"It's a little late to develop a constitutional philosophy or begin to work it out when you're on the court already," Bork said on "The Situation" on MSNBC. "It's kind of a slap in the face to the conservatives who've been building up a conservative legal movement for the last 20 years."

There is no one whose opinions of the Supreme Court I respect more than Judge Bork. His book, The Tempting of America, is as good an analysis of the problems with the role of the Supreme Court as you will find anywhere. I share his sense that there is no more pressing domestic issue than correcting the role of the high court and I share his frustration that the Miers appointment does not further the process... and yet, and yet...

And yet Robert Bork is a judge and George W Bush is a politician. It would be wonderful to see a major societal change in which the notion of an activist judiciary is discarded and the virtues of strict constructionalist and originalist interpritation of the constitution are generally embraced -- wonderful, but difficult to accomplish. The chattering set, who rule based on their superior glibness, will fight to the last man, woman, and ambiguously-gendered individual to prevent it. It is not clear to me that that it is a fight we can win, even with the Presidency and a majority in the Senate. That is, we may well lose if we give the gifted talkers among the opposition anything to talk about.

That's why Miers is the perfect stealth candidate. She has very little published (or even known) opinion on constitutional issues and, what is more important, she is not particularly interesting. There's just not much there to talk about. She's a woman. She's a lawyer who has practiced law for decades. Like the President, she is from Texas. She's ... um ... Zzzzzzzzzzzz

The president has known her for many years, believes she shares his views on the role of the court and can put her on the court without much opposition. I imagine that he, too, would like to see a victory on a referendum on the role of the high court, but he doesn't seem to think that the Senate Republicans can deliver it for him so, instead of changing the mind of America about the role of the Supreme Court, he is settling for changing one-ninth of the opinion of the court itself. This is not as good -- in point of fact it is disappointing and frustrating -- but given the lack-lustre performance of the Republicans in the Senate lately it's not at all clear that he hasn't made the best compromise.

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