Miss Miers the originalist and Mr Will
For the last few days, those of us who have supported the confirmation of Harriet Miers have been told that George Will had another column coming out on the Miers' nomination. It was supposed to be "brilliant", which knowing Mr Will is perfectly plausible. One hoped for a thoughtful, cordial piece, executed with Mr Will's customary urbanity and erudition.
Mr Will in his very first sentence writes:
Such is the perfect perversity of the nomination of Harriet Miers that it discredits, and even degrades, all who toil at justifying it.
All--not some, but all--who support the Miers nomination are by virtue of their support "discredited" and "degraded". They are supporting a nomination "perfectly perverse". Here at President Aristotle, I try not to speak that way even of...Democrats. Mr Will declines to offer a patient, sympathetic exposition of his own point of view. His purpose, unfortunately, is rather to sneer at those Republicans who support the nomination; as well as those many Democrats with first-hand knowledge of Miss Miers who think that she would make an excellent justice.
Many of their justifications cannot be dignified as arguments. This is true, of course; but not uniquely so: the same can be said of both sides in pretty much any debate.
Of those that can be, some reveal a deficit of constitutional understanding commensurate with that which it is, unfortunately, reasonable to impute to Miers. This might be correct, but it is not immediately clear how George Will would know: Mr Will can claim many educational credentials, but not apparently a law degree. And he chooses not to discuss those of Miss Miers' defenders who do have law degrees, who have worked with her personally, and who state that she is both a first-rate lawyer and an originalist--exactly the sort of person that thoughtful conservatives might think about supporting.
Next, Miers's advocates managed, remarkably, to organize injurious testimonials. Mr Will is certainly on to something: the deficiencies of the White House's campaign for Miss Miers are all too glaring. Mr Will cites a few testimonials that he finds particularly vacuous, graciously neglecting the ones to her skills at cooking and bowling. But it is rather too bad that Mr Will chose not to discuss the testimonials of the Texas attorneys consulted by Beldar: "Percentage expressing any doubts about her fitness for the Court based on personal knowledge and dealings with her: Zero." Or the testimonial of Ken Rainey, Texas bar: "she is brilliant...She appears, as I have observed, to be a strict constructionist ”. Or Colleen McHugh, Texas Bar: "That she is hard-working explains why she is able to do so much...She is also brilliant." Or Ken Starr:
"Starr: I think she's terrific...I've known Harriet Miers for over 15 years....She is enormously talented.
Hannity: Do you have any doubts whatsoever that she's an originalist in the mold of a Scalia or Thomas?...
Starr: ...I don't."
Nor does he discuss Federalist Society official Leonard Leo's affirmation of her Robert Bork-like originalism: He spoke as one who has known and worked with her for well over a decade, who has played host to her when she has been a Federalist Society speaker, and -- perhaps most significant -- who joined her in a battle to get the American Bar Association to rescind its resolution endorsing Roe v. Wade , the decision establishing a right to abortion.
The first thing Leo said was that Miers's statement accepting the nomination from Bush was significant to him. "It is the responsibility of every generation to be true to the Founders' vision of the proper role of courts in our society . . . and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution," she said. "When she talked about 'the Founders' vision' and used the word 'strictly,' " Leo said, "I thought, 'Robert Bork,' " Ronald Reagan's Supreme Court pick, who was rejected by the Senate after a bitter fight. "She didn't have to go there. She could simply have said, 'Judges should not legislate from the bench.' But she chose those words."
I asked if he was surprised that she did -- or whether it was consistent with what he knew of her judicial philosophy. He replied: "I'm not surprised that's what she believes. I'm surprised her handlers let her say it."
Critics of the Miers nomination have not been satisfied with the above testimonials, and perhaps they are correct. But Mr Will does not explain why these are not convincing reasons to support Miss Miers--he simply sets them aside, preferring instead to sneer at easier targets of ridicule.
Miers's advocates tried the incense defense: Miers is pious.
But of course, the argument was not that she was pious; the argument was that she was an evangelical, which is not the same thing. At least two points were being made: The first point was an appeal to an important national constituency. Despite the fact that evangelicals constitute 15% or more of the population, there has apparently been no self-identified evangelical on the court since Hugo Black. Perhaps, President Bush is to be criticized for trying to reward a major GOP voting bloc; but that is not the same as an appeal to piety.
The second point is that evangelicals tend to be strict constructionists in both Constitutional law and biblical practice. This link was made explicitly by one of her Texas defenders who pointed out that Miss Miers applied strict construction to both the Bible and the Constitution. While no one thinks her religion is a qualification for public office, an understanding of her religion clarifies the roots of her constitutional philosophy--whose alleged absence troubles Mr Will. These roots will only confirm the criticisms of those academics who dismiss originalism as a fundamentalist approach to the Constitution. But they sharpen the social sources of her commitment to originalism, as well as highlighting the depth and strength of that commitment.
The crude people who crudely invoked [her piety] probably were sending a crude signal to conservatives who, the invokers evidently believe, are so crudely obsessed with abortion that they have an anti-constitutional willingness to overturn Roe v. Wade with an unreasoned act of judicial willfulness as raw as the 1973 decision itself. This is a sentence that Mr Will should probably not have written: on the one hand, he wants (reasonably) to dismiss the charge that Miss Miers' critics are elitists; on the other hand, he suggests (unreasonably) that Miss Miers' defenders are "probably" a bunch of "crude" yahoos. Mr Will could scarcely have written a more self-defeating and self-contradictory sentence.
Worse: he simply misses the message--Miss Miers' defenders have been very far from suggesting that conservatives "have an anti-constitutional willingness to overturn Roe v. Wade with an unreasoned act of judicial willfulness as raw as the 1973 decision itself." On the contrary, HM's defenders have consistently portrayed her as a legal trailblazer for women, one of the top 100 women lawers in America; a woman who would put her considerable legal talents to the service of an originalist constitutional philosophy similar to that of Scalia and Thomas; and a woman who has openly proclaimed that "it is the responsibility of every generation to true to the founders' vision" and that judges have authority to make decisions based "only on the founders' vision--the rule of law"; thereby implying that one cannot depart from originalism without subverting the rule of law itself. Far from promoting a raw display of conservative judicial power, her defenders have signaled that she would reverse Roe v Wade on the basis of an originalist constitutional philosophy that her stellar legal career gives her ample skills to articulate.
Of course, Mr Will scoffs at this as quite absurd. Mr Will, who knows neither law nor Miss Miers, deems her a legal nitwit with no constitutional philosophy of law at all. Her defenders, who know both law and Miss Miers, think her a first-rate lawyer and an originalist. Perhaps Mr Will is right, and her defenders are wrong. But he should not confuse his arguments with theirs.
Mr Will goes on to write: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Of course it is precisely for this reason that thoughtful conservatives have praised Miss Miers' statement on judicial activism: "For the legal system to be predictable, the words are vital -- whether they are agreed upon by parties to a contract or are the product of legislative compromise. Many times in practice I found myself stressing to clients the importance of getting the words exactly right if their interests were to be protected in the future...Courts should give proper consideration to the text as agreed upon, the law as written, and applicable precedent." Mr Will, in his critique of Miss Miers' legal philosophy, declines to cite a single word from her statement on exactly this issue. Those who have studied have found much to praise, some even thinking it a better statement of originalism than that of John Roberts. Mr Will is free to disagree; but his reasons would be more convincing if he engaged with her statements, rather than omitting them altogether.
The rest of the column collects a few more sneers and insults, but there is little more of intellectual content that needs discussion.
In 2004, President Bush was re-elected, vowing to appoint to the Supreme Court justices of the same mold of Scalia and Thomas. On the basis of a decade's close work with Miss Miers, the President believes her to be an outstanding lawyer who shares the Scalia/Thomas originalist approach to jurisprudence. Nor is this just his view: those who have worked with her over the years also agree that she is a first-rate lawyer with an originalist philosophy of Constitutional law.
We go forward now to the hearings where we hope to see this substantiated in further detail.
UPDATE: Welcome to Hugh Hewitt readers!
UPDATE 2.0: The American Spectator discusses the Will column.