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Miers: The Morning Update

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What a surprise: The Miers nomination isn’t upsetting the GOP base nearly as much as it has the GOP punditry.

Law professors remain perplexed as to why their objections have not been heard. Orin Kerr takes me to task for an alleged inconsistency that neither I nor many of his commentators can figure out, rooted in my criticism of the federal courts during the Schiavo case:

At the time, Hewitt was not saying constitutional law was easy. Nor was he invoking the intent of the Framers, or the need for judicial humility and deference to majoritarian wishes. Instead, Hewitt seemed quite committed to inventing a new theory of constitutional law that would empower federal courts to trump the states and order Schiavo’s feeding tube reinserted.

Here is the fundamental guide to Constitutional Law: Majorities, acting through their elected representatives, ought not to be frustrated by unelected judges unless the statute those representatives have passed violates a clear Constitutional command. This is primarily Judge Bork’s point made in his introduction to “A Country I Do Not Recognize,” from which I quoted extensively yesterday. My critique of the federal courts’ response last spring was they simply ignored a clear Congressional mandate, without even taking the time to opine on that mandate’s constitutional status. Kerr and I argued over what that status might be, but the obvious fact that it was ignored was the primary focus of my critique. But perhaps Orin has forgotten that.

I am not surprised that many ConLaw scholars are convinced of the complexity of ConLaw-related judging. There are obvious reasons why elites are obliged to argue for the necessity of elites. But the reality is that SCOTUS judges aren’t scientists or engineers, confined by their specialities to narrow areas, and the skills of an accomplished trial lawyer can be quickly adapted to judging.

What is interesting is that so many conservative scholars are now going to have to embrace the high priesthood theory of SCOTUS in order to assault the Miers nomination. The inconsistency isn’t mine. I defended Clarence Thomas against the charges of elites in 1991 that he wasn’t “the best available candidate,” and have consistently criticised SCOTUS decisions which are anti-democratic such as the Roper v. Simmons case. ConLaw judging and scholarship is in fact a fine credential to bring to the table –they are the reasons I preferred Judges Luttig or McConnell for this post and hope they arrive some day on SCOTUS.

But their experience was attractive to me not solely because they are intellectual giants though they are, but because they had put that talent to the service of a judiciary aware of its appropriate place in our scheme of government. I had hoped for their elevation because of my expectation on how they would vote, coupled with a belief that they could in some instances hel lead the SCOTUS out of the intellectual thicket they had worked themselves into (McConnell’s First Amendment expertise, for example, would be very helpful on the SCOTUS.)

But the desirability of a talent is not the same –by a long shot– of its necessity. President Bush has made a different calculation. It isn’t the one I owuld have made, but that’s no excuse to wage a campaign of self-destructive (to the GOP coalition) recrimination that endangers the Senate majority in the long term by endangering gains that might be made in 2006.

An illustration. Here are a couple of paragraphs from a fine essay on the death penalty:

Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a ‘living document’


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