Burnt Orange Report

Will is Shrill

By Jim Dallas

The news that George Will is not a happy camper has been posted elsewhere, but I'd like to parse this for everybody just to insure the message is clear.

For what it's worth, I'm not too personally negative about Ms. Miers being nominated for the Supreme Court. In a way it's inspiring -- if I can do a half-decent job in law school, only get in trouble once or twice as a practitioner, and sufficiently praise the Governor of Texas -- well then, I too might one day be a Supreme Court Justice.

Nonetheless, the better part of me agrees with Will that a more scholarly type (you know, like a judge) might be a better Justice.

Also, Will seems to have better reasons for flipping out than most of us here on this side of the blogospher. Remember, kiddos -- everytime you cast aspersions on the Texas business community (particularly the upstream oil and gas industry) in order to make a political point, the deity-of-your-choice kills a kitten. Please... think of the kittens.

Parsing is below the fold.

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. 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.

Remember those bumperstickers in 2000 that read "how dumb is too dumb?" 'Nuff said.

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.

Here George Will proves that he knows how to multiply large numbers.

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."

Incidentally, George Will apparently supported George W. Bush in 2004, after, we are told, Bush "forfeited his right to be trusted as a custodian of the Constitution." Nonetheless, Kerry was also for McCain-Feingold and a "redistributionist." So in this regard, I suppose, this paragraph might be read as George Will's way of complementing Bush for not being a Communist. Alternatively, this is Will's way of attempting to make a mea culpa. Alternatively, this is all just a temper tantrum. Time will tell.

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

Under the rubric of "diversity" -- nowadays, the first refuge of intellectually disreputable impulses -- the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation. Identity politics holds that one's essential attributes are genetic, biological, ethnic or chromosomal -- that one's nature and understanding are decisively shaped by race, ethnicity or gender. Categorical representation holds that the interests of a group can be understood, empathized with and represented only by a member of that group.

Insofar as I can remember, Will has been amazingly consistent on this issue (especially given the "look ma, a minority" strategy that has been all the rage recently).

The crowning absurdity of the president's wallowing in such nonsense is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing Miers, deplored judges who "legislate from the bench."

Minutes after the president announced the nomination of his friend from Texas, another Texas friend, Robert Jordan, former ambassador to Saudi Arabia, was on Fox News proclaiming what he and, no doubt, the White House that probably enlisted him for advocacy, considered glad and relevant tidings: Miers, Jordan said, has been a victim. She has been, he said contentedly, "discriminated against" because of her gender.

Her victimization was not so severe that it prevented her from becoming the first female president of a Texas law firm as large as hers, president of the State Bar of Texas and a senior White House official. Still, playing the victim card clarified, as much as anything has so far done, her credentials, which are her chromosomes and their supposedly painful consequences. For this we need a conservative president?

Emphasis his. Gotta love them italics.

Will wanted somebody more conservative and more qualified. He wanted (as noted above), Judge Wilkinson. But the upshot of this piece seems to be that many of the fears held about Miers are being projected on Bush. And Bush angering his base is just... surreal.

Granted, I don't expect we'll see this reflected too much in polling. But I do think that in 2008 primaries the Republicans are more likely to have a blood-bath than a coronation. I had once thought that whoever had the administration's blessing would probably waltz to the finish line - and that may still happen. But my suspicion is that even most Republicans are ready for a change; the question is, in which direction?

Of course, there've been more than a few comments about all this Miers stuff being a reverse-bait-and-switch. I think Bush is serious; I can't really explain why, it's just a gut instinct.