Wednesday, October 05, 2005

Just Good is Not Good Enough

There are certain stations in life that should demand the highest level of achievement and ability. Being a justice on the Supreme Court of the United States is one of those posts. While a President can have many criteria for selecting a nominee- including ideology, conformability and character- being one of the best minds of the generation should serve as a threshold to being considered. In selecting Harriet Miers as his nominee for the Supreme Court, George W. Bush failed to abide by this simple and essential threshold.

Miers is a good lawyer, maybe even a very good one. She was President of the Texas Bar Association, she was White House Counsel, she even managed a large law firm. This is very impressive- but good is not good enough. As George Will accurately pointed out - "If 100 [top legal minds] had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists." That no one would seriously challenge this contention shows that Miers fails the most essential prerequisite for being considered for the Supreme Court.

Miers’ defenders point out that she is not from the judicial monastery and brings a different experience to the bench. First, I am unsure as to why not having been a lower court judge gives one more ability to be a judge at the highest level. Imagine someone arguing that she should be CFO of a fortune 500 company, and responding to the charge that she has never performed high level financial analysis by saying she will bring a different background to the job of CFO. Even more importantly, there are numerous lawyers who have never been judges that would fit the threshold criteria I propose. For example, former Solicitor General Theodore Olson is acknowledged by legal experts on both the left and the right as one of the most brilliant legal minds in America. And if Bush was insistent on picking a woman, he could have selected Maureen Mahoney, who is a former Rehnquist clerk and one of the most respected advocates in the country. There are dozens such names that I or anyone else familiar with the American legal universe would pick before we would even consider mentioning Harriet Miers.

Miers may end up being one of the great justices in American history. She could have the intellect and ability to prove her detractors wrong. Most likely, this will not occur. In selection John Roberts, George W. Bush picked someone who has excelled at the highest level at the most difficult tasks a legal mind can tackle. In moving away from selecting from the universe of the best legal minds of the generation, Bush has made a terrible mistake. Even worse than the one Reagan made in 1981.


Anonymous said...

To paraphrase John from Americablog -- you get the president you voted for. Republicans (that means you Federalists) elected a mediocre man to be president of the United States. Now that man has nominated his own mediocre lawyer to be a United States Supreme Court justice. Frightening? Of course. That's what the rest of us have been telling you for 5 years.

Anonymous said...

Bush promised to appoint someone in the mold of Scalia and Thomas. Nobody (not even his supporters) would argue that Thomas is particularly qualified to sit on the Court. Bush fulfilled his promise.

Misha Tseytlin said...

Assuming all federalists voted for Bush illustrates you dont really know much about the federalits society.

Charles Iragui said...


I agreed with J. Li on an earlier post:

"I believe it was [Bush's] DUTY to select a justice that openly took the originalist view of Scalia and Thomas. By doing otherwise he has, as you say, encouraged those who claim that such views are unfit for expression before the United States Senate. In fact, he should be insisting exactly the opposite: that originalism should be accorded presumptive validity."

However this post should be taken into consideration:



J. Li said...

Is this the same "anonymous" who called me spineless in a comment to my post? S/he entirely misunderstood my point. I have *voiced* my views--on this blog and elsewhere. I was hoping Bush would not be spineless so other young conservatives would follow his example. If even the President dodges the intellectual debate (and by the way, others could have made the arguments for him, but he had to nominate a known quantity first), then all conservatives might as well do so, on what is their STRONGEST issue no less. How does that make me spineless?

Andreas said...

"Imagine someone arguing that she should be CFO of a fortune 500 company, and responding to the charge that she has never performed high level financial analysis by saying she will bring a different background to the job of CFO."

Flawless analysis...flawless

Anonymous said...

Professor Edelman, not the most conservative prof in Gtown, has been known to say that Thomas, notwithstanding his right-wing bent, is "brilliant."