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Still Not Stressing Over Miers

I certainly seem to be in the minority in the conservative blawgosphere in having an initial positive attitude about the Miers nomination. That may change, of course, if more comes out to be unhappy about. But in general, I've found the arguments about Miers lack of qualifications uninspiring. The legal profession is one that puts great store in hierarchy, of course, and it's not surprising to see columns like today's by George F. Will complaining that a judge may be minimally qualified but should only be confirmed if she is excellent. The best rebuttal I've seen to this so far comes from Reginald Brown of Wilmer Cutler (via Prof. Kerr at Volokh), particularly this bit:

Will’s fourth argument is the most dangerous and absurd. He suggests Miers shouldn’t be approved because she hasn’t shown a "talent" for "constitutional reasoning" honed through years of "intense interest" and practice. Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. . . . Will seems to be buying into the "Nine Wisest Men" mythology that is a root cause of the Court’s aggrandizement of power over time.

On the other hand, Will Baude makes a little less of the outsider argument. Wondering why a different perspective would be valuable on the Court, he writes:
[I]f one believes, as I had thought Senatory Cornyn and Matt did, that judges simply enforce the law handed down by the other branches of government, why on earth should the Court care what the consequences are of doing its job? Attention to consequences makes sense if one is a consequentialist, but are we all professing to be consequentialists now?

Which is all well and good, but such perspective can be valuable even if Miers is not a consequentialist, so long as other members of the Court remain consequentialists, or arguably could be considered as such, and especially when they're weighing in on a balancing test. I'm reminded of this by what may be the funniest part of a Supreme Court opinion I've read this semester. Considering whether or not a statutory fee cap on legal fees in certain Veteran's Administration claims (to $10, making this fundamentally a bar on hiring attorneys), Justice Stevens in his dissent writes:
In my opinion, the bureaucratic interest in minimizing the cost of administration is nothing but a red herring. . . . [T]here is no reason to believe that the agency's cost of administrion will be increased because a claimant is represented by counsel instead of appearing pro se. . . . [T]here is no reason to assume that lawyers would add confusion rather than clarity to the proceedings. . . . Only if it is assumed that the average lawyer is incompetent or unscrupulous can one rationally conclude that the efficiency of the agency's work would be undermined by allowing counsel to participate whever a veteran is willing to pay for his services.

Walters v. National Association of Radiation Services, 473 U.S. 305 (1985) (Stevens, J., dissenting).

Suffice it to say, having someone with significant experience outside or on the other side of a courtroom might be useful in such discussions.


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In Federalist No. 76, Alexander Hamilton warned that, in presenting nominations to the Senate, a president "would be both ashamed and afraid" to nominate cronies--or, as Hamilton called them, "obsequious instruments of his pleasure." Maybe politics was different back in the 1780s, but we have watched Bush appoint many obsequious instruments of his pleasure. It may be his legacy: George W. Bush--he took the shame and fear out of cronyism.

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