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Monday, October 10, 2005

Yet another take on Miers

I was all set to write a piece about Miers when I went to Instapundit and found Hugh Hewitt already wrote it, and the Volokh Conspiracy countered it. This is Hugh Hewitt excerpted from the Volokh Conspiracy:

The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task[.]
. . .
[T]he most important quality in a justice, from Bork's published point of view, would be humility in the face of majoritarian choices consistent with the federalist framework.
. . .
The other argument is a subdivision of the "not smart enough" argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.
From this I especially dissent. Simply put: It isn't that hard. It is wrong to argue that it is so. It is anti-democratic to argue that it is so. The Left wants you to believe it is so, and the center-right should resist that.
. . .
ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observors. Further, some of our justices have spent quite a lot of paper and ink arguing absurd theories that tell us "A" is not "A," with the intent of persuading not the people but other judges of such propositions that the Framers and their friends . . . intended to ban "under God" from the Pledge.

The Volokh then calls Hugh a hypocrite and blah blah blah and ends with:

It's easy to repeat platitudes about how a judge won't "legislate from the bench" or will just "follow the Constitution." But the hard part is sticking with those principles when they no longer comport with the results you really really want to reach.

To be fair, I agree with Hugh that Supreme Court Justices don't need to be academic super stars. But they do need to be reasonably self-aware. And my guess is that self-awareness tends to come most often from the experience of testing and evaluating arguments again and again, whether as a judge or in some other forum.

Which is correct except for the last two sentences, which are crap. All those brilliant and experienced judges on the supreme court seem to be missing that self-awareness and humility, except CLARENCE THOMAS, who became a judge for the first time in 1990, and was nominated to the Supreme Court in 1991.

Self-awareness and humility may be important, but more important is an ability to resist the wiles of the Washington liberal-super-elite. Miers, like Thomas, will be immune because the Washington liberal-super-elite won't have her.

So good on ya' Bush.


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