Responding to Will

A former White House lawyer — a conservative who worked with Harriet Miers — offers this rejoinder to the Will column.

George Will’s column on Harriet Miers and the President is both unfair and sloppy. He begins by suggesting that the President is uninterested and incapable of making sophisticated judgments about the Court and judicial philosophies. This charge is patently unfair. The President picked John Roberts, and has a stellar first term record of selecting conservative judges for the appellate bench. There hasn’t been a single liberal in the bunch with the exception of Roger Gregory and Barrington Parker, both of whom the President obviously nominated as part of an early political compromise that got Roberts and others on the circuit bench. This is a man who almost lost the Presidency because of the liberal activism of the Florida Supreme Court. He understands full well the power of the Court and has been serious about his appointments in the past.

Will’s second argument is that the President didn’t consult with serious people before making the choice of Miers. This is also a silly argument. We know that the President consulted with eighty members of the Senate, including all of the Republicans on Senate Judiciary. He also reached out to people like Leonard Leo and Jay Sekulow. And he has serious, principled conservatives, like Bill Kelley, on the White House Counsel’s Office staff. These aren’t cronies or toadies who will only tell the President what he wants to hear. And they are, for the most part, very comfortable with the Miers choice. And some of these people have seen Miers up close — vetting the choices for the first vacancy, taking Roberts through grueling moot court sessions, and recommending judges for the lower courts.

Will’s third argument is equally weak. He basically says the President has forfeited his right to be taken seriously because he didn’t veto McCain-Feingold. As an initial matter, if the President can’t be taken seriously for signing the bill into law, the Senate can’t be taken seriously for having passed it. McCain-Feingold was a bad law, but bad laws get enacted all the time, and at least the President had the sense to have GOP political lawyers challenge significant components of the law in court. While it is true that DOJ defended the law on appeal, the politics of the entire situation were plain, and understandable, to all involved. The President has expressed great seriousness about the Constitution during his tenure, particularly as it relates to the power of the Executive under Article II.

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. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution’s text, structure and history and who call balls and strikes. Bush is in favor of demystifying the Court and the Miers choice is part of that effort. 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.

Will’s final argument is that Miers is an affirmative action quota pick. Underlying this theme is a subtle snobbery that conservatives should dismiss out of hand. One need not go to Harvard or Yale Law or be a member of the right Inn of Court to serve with distinction. Miers’ career suggests she is plenty smart and obviously hard working. She also happens to be a gun-toting evangelical who gives money to pro-life organizations and spends her free time taking care of her elderly mom. She’s served as a public official, a commercial litigator, a policymaker and Counsel to the leader of the free world. These aren’t the qualifications that have led to appointments in the recent past, but given the nonsense regularly emanating from the Court maybe they ought to be.

Miers lives in the real world. She knows what the practical impact of a Kelo decision will be and that the laws of Nigeria and the European Union aren’t terribly relevant to U.S. constitutional analysis. And as important, the people that she hangs out with don’t give a hoot what Linda Greenhouse and the New York Times think. That’s not evidence of a quota pick — it’s solid progress.

I love George Will’s work, and he’s a great conservative, but he’s way off-base with today’s column.

While I am not yet convinced that Miers was a good pick, I agree that Will overstates his case.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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