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Tuesday, October 11, 2005

Althouse: Mellowing on Miers.

Althouse: Mellowing on Miers.:

Thinking about it that way has begun to thaw my opposition to Miers. Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk? Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer's methods to resolve the problem at hand. What is wrong with having that style of analysis in the mix? We need a safeguard against the excessively theoretical.
This is an interesting way of looking at this issue, and not a bad one. Miers is not stupid, and I think she is certainly intellectually up to the job of being a Supreme Court Justice. In truth, we need intelligence on the bench probably less than we need wisdom, and I don't know that we have any reliable test for that. I remain worried about Miers, but not for any of the reasons commonly cited. I think her history and credentials are plenty good for the Supreme Court. I have no worries about her being 'conservative' enough (in fact, if that sort of thing were to be a problem for me I would worry about the opposite.) She is the President's pick and I imagine that in many ways her ideology matches his. She will probably on most issues be a good judge, and I expect I will agree with her about as much as I agree with any of the Judges. I also don't have any patience for those who are upset at this nomination because they were looking forward to an apocalyptic showdown in the Senate, and (hopefully) driving the Democrats screaming and wailing under the conquering feet of the glorious Republicans. We don't need that kind of battle, it serves no useful purpose and while elections matter, and the President and the Republican party therefore get to pick who they want on the court, the President is the President of the whole country. If an judge that is acceptable to Democrats is also acceptable to him, that is a good thing and not a bad thing. In an ideal world both parties would be concerned with what is best for the country and while they may at times disagree on what that is, they would also at times agree. Partisanship is natural, and a fact of life, but we shouldn't celebrate it or desire more of it. My concern with Miers is simply that she, along with Roberts, and probably even more adamantly, seems likely to be an extreme supporter of executive power. I am a bit worried that such a dramatic shift of the court in that direction could lead to unfortunate results in the future. The power of the executive branch has grown considerably since the writing of the constitution, and while some of that is good and a necessary response to changing conditions, I worry about the trend continuing too far (and too fast.) If I am right that this is the reason Bush has chosen her, and I am strongly convinced that I am, then Bush will not nominate a strict 'originalist' to the court. (Althouse link via Instapundit)


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