More on Miers
Following up on Oliva's post, it seems to me that, as Lew Rockwell has posted, if the movement conservatives hate her, she can't be all that bad.
It seems to me that most of her alleged flaws are not really objectionable. Who cares about her law school or pedigree or whether she is a lawyer or has had judicial experience? The Constitution is short and ought to be able to be parsed by a reasonably intelligent citizen. Given that the Constitution as written, if followed, would in fact lead to a more libertarian society, the main criterion for Supreme Court Justice for the libertarian ought to be the likelihood he or she would follow the Constitution in his or her rulings. This does not seem to me to correlate with pedigree or judicial or legal experience--if anything, it correlates negatively with it.
In fact, in my view, one reason mainstreamers focus on criteria such as "competence" is that it allows them to avoid focusing on substantive matters. I would rather have a mediocre-intellect who has sound, honest, common sense views on the Constitution than a mainstream genius. The mainstreamers focus on "pedigree" etc. so they can avoid any radicals getting on the court.
Now William Watkins of the Independent Institute has some interesting and insightful comments about her nomination. After noting some of her pluses, he is concerned about her lack of legal writings or lectures on major legal issues:
Miers' lack of a written record can only be attributed to some combination of the following: (1) she lacks the intellectual heft to participate in debate over constitutional issues, (2) she does not care, or (3) she has carefully avoided stepping into the fray in order to advance her career. Any one of the reasons is sufficient to disqualify her from consideration. ... Unless Miers quickly provides some hard evidence of her legal philosophy and opinions, the Senate will be compelled to exercise its constitutional check and reject the Miers nomination. There is simply too much at stake to place blind faith in the President's choice.
I understand the latter point, but I disagree with the idea she should be rejected for any of the three possibilities he lists. Intellectual heft? Why should the Constitution require a genius to interpret it? Does not care? So what? Why do you need to have your job be your hobby too? And staying silent to advance her career? I still do not see how this makes her likely to be worse than published mainstream leftists and rightists.
Given today's political realities, what are the real alternatives? If Miers had published, it would either be mainstream--socialist/statist--or it would not. If not, then she would not be confirmed. In other words, the only people who do publish their views are those with explicitly mainstream views. So the worst case is that her private views are just mainstream, in which case we are no worse off than if she had published. But if her views are just a tad more radical than the typical published egghead judge, all to the better.
Plus, she's an evangelical Christian, and you know that drives the left bonkers.
Comments (13)
FCharleston
The major problem with Myers is that we need an independent judiciary not one made up of White House legal counsel. Publius has a good post on why she has been picked by Bush:
http://lawandpolitics.blogspot.com/2005_10_01_lawandpolitics_archive.html#112880564066949691
Although Publius only mentions torture and violations of the Geneva Convention. It boils down to the fact that she is exactly what this administration needs in order to uphold the extension of executive power that they have been engaged in since 9/11. Do you need to reread Reassessing The Presidency once again Mr. Kinsella?
I would suggest starting with Marshall DeRosa's "Supreme Court as Accomplice: Judicial Backing for a Despotic Presidency."
Published: October 10, 2005 11:18 PM
Andy D
You think the conservative movement is a threat to freedom? Who are the ones espousing higher taxes, more intervention, and less property rights? the conservatives?? If you think that is the case, you are victim to the misinformation of the left, and I hope that you see who your "progressive" friends really are: piglets on the teat of government.
Published: October 11, 2005 12:57 AM
Aakash
I just saw Lew's entry at the LRC blog... But I am under the impression that it is semi-sarcastic. This entry seems more serious.
Basing support upon the fact that those you oppose oppose a policy is often not a good thing... That was a factor that caused many of my fellow young conservatives and Republicans to support the Iraq war - though they may not have if a Democrat were in the White House. I've written about this issue many times before.
With respect to Supreme Court nominations, this same mistake has been made... The Souter disaster showed us why those of us on the Right cannot afford to make it again. I opposed the Roberts nomination, because it was too much of a risk for constitutionalist republicans to take.
And having "all the right enemies" doesn't necessarily mean that much.
The President needs to withdraw Ms. Miers, and put in Janice Rogers Brown.
If that doesn't work... then bring back Bork!!
Published: October 11, 2005 2:11 AM
Stephan Kinsella
My point is almost all of the criticisms of Miers make no sense for the libertarian--her "credentials" or "publications" or "intellectual heft" are all irrelevant. As for judicial independence: I see no reason to think Miers would be less independent, once confirmed, than any other Justice. I am not a Miers fan, but given her blank record, at least there is a chance she is friendlier to the real Constitution than a vetted, published, mainstreamer would be. At worst she will act like one of the other mainstream Justices.
One may wish Bush had nominated someone "better" like Janice Rogers Brown etc., but I am not aware that any of Bush's other choices are really genuine originalists anyway.
Published: October 11, 2005 7:45 AM
J. H. Huebert
The major problem with Myers is that we need an independent judiciary
Given that the president chooses judges and justices, and the Senate must approve them, how likely is that in any event?
As for Miers's lack of qualifications, the aspect of that that concerns me is her apparent lack of any philosophy. That, combined with her sycophancy toward GWB, suggests there is no reason to think she will be any good.
Published: October 11, 2005 7:48 AM
Yancey Ward
I have made the same point recently, on another blog, that someone of above-average intelligence (say, in the top 30% of the population), who could read English, could make a perfectly competent Supreme Court justice. All that is really needed, in addition to the above qualifications, is a sense of humility.
Published: October 11, 2005 8:58 AM
Lowell R.
Two words: Alex Kozinksi.
(Though I'll echo Aakash's praise of Brown and Bork.)
Published: October 11, 2005 9:00 AM
Vince Daliessio
I think that part of the reason many libertarians resist the appointment of someone like Miers is that we have seen already what kind of person Mr. Bush appoints, and we want nothing to do with her. Also, being pragmatists, we would like to know exactly, based upon some legal history exactly how bad she might be. Since we already know we have to expect the worst, we are prejudiced (pardon the pun) against Ms. Miers in the absence of any evidence to the contrary.
Published: October 11, 2005 9:05 AM
Larry Ruane
Stephan, I agree with your main points, but you say:
So the worst case is that her private views are just mainstream, in which case we are no worse off than if she had published. But if her views are just a tad more radical than the typical published egghead judge, all to the better.
By "radical" you mean libertarian. It's true that the political mainstream is already very much socialist/statist compared to our position, but isn't it possible Miers is "radical" in the wrong direction -- even further away from libertarianism?
Published: October 11, 2005 11:29 AM
Stephan Kinsella
Larry-- I doubt Miers is more socialist/mainstream than the typical justice would be. And even if she is--from our perspective they are all just tweedledum and tweedledee.
Published: October 11, 2005 12:25 PM
Evilpaul
Andy D wrote:
You think the conservative movement is a threat to freedom? Who are the ones espousing higher taxes, more intervention, and less property rights? the conservatives?? If you think that is the case, you are victim to the misinformation of the left, and I hope that you see who your "progressive" friends really are: piglets on the teat of government.
I don't really care which politician espouses whatever.
The fact is Republicans/conservatives have raised taxes now and in the future (via inflation and borrowing). They are foaming at the mouth to attack every country in the "broader middle east" and North Korea. The only property rights they seem to give a damn about their own, they only favor "property permissions" for the rest of us. Ron Paul is still the only Republican in Congress who believes in self-ownership.
Conservatives might use free-market rhetoric, invoke the Founding Fathers, and say they're devoted to liberty. But, when push comes to shove it's support this gargantuan statist project for however long til the bogey men are gone, and we can have libery someday later. Minor caveat: someday never comes.
Published: October 13, 2005 3:23 PM
Paul Edwards
I agree, Evilpaul; republican libertarian rhetoric is extremely hollow. And it doesn't take very much resistance at all for push to come to shove.
Published: October 13, 2005 5:36 PM
William Tanksley
I find it odd to hear it declared that we shouldn't care about accomplishment and credentials. How else are we to judge? There are accomplished and well-credentialed people out there; we don't need to watch another unknown get nominated with the same promises that we heard when all the other unknowns were nominated.
And why should libertarians believe that it takes no cleverness to interpret the constitution? Don't forget that the laws of the land will be presented before the Court by the cleverest people the respective sides can afford... Stupidity is no virtue, even for libertarians.
(Why are you implying that it is?)
Published: October 14, 2005 10:51 PM