The World Needs More Ninjas

The president’s “argument” for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers’s nomination resulted from the president’s careful consultation with people capable of such judgments. If 100 such people 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.

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked — to ensure a considered response from him, he had been told in advance that he would be asked — whether McCain-Feingold’s core purposes are unconstitutional. He unhesitatingly said, “I agree.” Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, “I do.”

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court’s role. Otherwise the sound principle of substantial deference to a president’s choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

The problem isn’t only that Miers is not openly a movement conservative but that she’s as far from a public intellectual as anyone could possibly be. In one fell swoop, Bush flouted both his supporters’ ideology and their sense of meritocracy.

Worse, he bypassed the opportunity to demonstrate their intellectual seriousness — conservatism’s intellectual seriousness.

…

Four and a half years into the presidency of George W. Bush, how could they still entertain the idea that the president takes merit, much less intellectual seriousness, seriously? The one in-house White House intellectual, John DiIulio, ran screaming from the premises after a few months on the job. Bush has long since banished all those, such as Army chief of staff Gen. Eric Shinseki, who accurately predicted the price of taking over Iraq. Yet Donald Rumsfeld — with Bush, the author of the Iraqi disaster — remains, as do scores of lesser lights whose sole virtue has been a dogged loyalty to Bush and his blunders. Loyalty and familiarity count for more with this president than brilliance (or even competence) and conviction.

The president’s defense of Miers in many ways amplified the problem. His case for her boils down to: “Because I say so” and “She really is a nice person.”

But “because I say so” is not an argument. It is an assertion of pure authority. And have not the great conservative legal minds of the past three decades warned again and again that the courts have gone wrong precisely because they have relied too much on authority and too little on argument?

“She really is a nice person” likewise is a statement grounded on feeling rather than thought. And don’t conservatives object to legal liberalism precisely because it is based on sloppy emotion rather than disciplined thought?

Legal conservatism is a powerful and compelling school of thought. The Scalias and the Thomases and the Rehnquists have changed the law not by forcing their positions on the country by brute vote-counting, but by persuasion.

If all that’s required is a reliable vote, National Review and the Heritage Foundation have plenty of interns who will do just fine.

During almost five years of bruising partisan warfare on issues from taxes to Iraq, few people have ever accused Bush of dodging a fight. But that’s exactly the charge he is now facing from disgruntled conservatives.

They contend that Bush has chosen Miers, and even Roberts, largely because he fears Democratic resistance to conservatives with more concrete public records, such as appellate court Judges J. Michael Luttig and Edith H. Jones.

“Is the president sending a message that these distinguished conservatives are too controversial to be nominated for the high court, even with a Senate containing 55 Republicans?” a Wall Street Journal editorial asked Tuesday.

…

But Bush’s conservative critics say he has carried this tendency to a new height through his selection of Roberts, who had served just over two years as a federal judge, and Miers, who has never served on the bench or written publicly on major legal questions.

In contrast, both of President Clinton’s Supreme Court appointees Stephen G. Breyer and Ruth Bader Ginsburg had served for more than a decade on federal appellate courts. And Ginsburg had written widely as a law professor and general counsel for the American Civil Liberties Union.

…

The critics on the right see two principal risks in choosing justices without a long pedigree. One is that without a firm anchor in conservative legal views, they will trend leftward on the court the way almost all conservatives believe David H. Souter, appointed by President George H.W. Bush, has done. This fear is greater about Miers because Roberts’ advocacy for conservative positions in previous GOP administrations has left the right considerably more, though not completely, confident about him.

The other fear is that the nomination of candidates without lengthy public records will discourage conservatives from advancing controversial positions that challenge legal conventional wisdom either in their writings or on the courts. The Wall Street Journal said that by appointing Miers, the president “missed a chance to send a message that taking firm sides in our judicial debates is not politically disqualifying.”