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President Will, Justice Powell and Chief Justice Wilkinson

Saturday, October 22, 2005  |  posted by Hugh Hewitt
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George Will is quite rightly recognized as among the two or three finest pundits of the last 25 years. Put aside his bow ties and his very well known love of baseball: Will has consistently produced entertaining and insightful prose over a very long period of time. It is simply wrong to reject Will as “no big deal.”

But he can and does throw spokes, and he did so in Sunday’s column.

From Will’s column:

Last week’s ruling divided the justices into unlikely cohorts, thereby providing a timely reminder that concepts such as “judicial activism,” “strict construction” and “original intent” have limited value in explaining or predicting the court’s behavior.

Oops. Sorry. That was Will’s May 22, 2005 column.

Here’s Will’s column:

In Monday’s decision, which of the justices were liberal, which were conservative? Which exemplified judicial activism, which exemplified restraint? Such judgments are not as easy as many suppose.

Oops. Sorry again. That was later in May. Try this excerpt:

Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises “judicial restraint” and deference to — it sometimes seems — almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary’s indispensable role in limiting government.

Let’s try one more:

In the last decade alone, the Rehnquist court, in an unprecedented flurry of activism, has struck down more than three-dozen enactments by the people’s representatives in Congress. Are you for such judicial activism or are you for helping us go to Hell? Or is this the fallacy of the false alternatives?

George Will has been writing a lot lately about SCOTUS, including Sunday’s column about the Miers nomination that opens with the assertion that the nomination “discredits, and even degrades, all who toil at justifying it.” But the keys to putting this broadside into context are Will’s preference for Judge Harvey Wilkinson, a distinguished jurist who did not impress the president, and, crucially, Will’s assertion that “Supreme Court Justice Lewis Powell [was] the embodiment of mainstream conservative jurisprudence.” (Emphasis added.)

George Will has a lot of opinions about the SCOTUS, and he expresses them well. He makes sense. George Will is certainly no ConLaw scholar, nor even a professor of a different branch of the law, or even a lawyer. He is, rather, a bright, hard-working, indeed superb craftsman of language.

George Will could serve ably on SCOTUS.

But so too can and will Harriett Miers, and all the aspersions in Will’s deep well of such things won’t change that fundamental fact. Nor can he erase his instant rejection of Miers or the insult he delivered the president when he did so: Bush, wrote Will on October 4, has “neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution.” Will’s hero, and mine, Ronald Reagan, made what conservatives might consider two giant mistakes in nominating Sandra Day O’Conor and Anthony Kennedy, but both were better on the use of race in conferring rewards or penalties than Will’s model, Justice Powell, who it should be remembered gave us Bakke which led to Bollinger.

(Aside: I see many on the web are exercised about Harriet Miers’ support for affirmative action in the private setting of support for resolutions of the Texas Bar urging quotas in hiring at private law firms. It is not a policy with which I would agree either, but it also not a matter of constitutional law, unless under Brentwood the action of the Texas Bar in urging private firms to set strict goals has converted into a state action. Don’t know what Brentwood is? Or the state action doctrine? Not many people do. But those that don’t ought not to be confusing ConLaw with the private decisions of private firms while arguing that this policy makes Miers suspect on Bollinger. Now, if she supported a soft line on the Bollinger cases, that would be a legitimate area of concern, but not the Texas Bar resolutions.)

How many conservative critics of Miers agree with George Will that Justice Powell was the “embodiment of mainstream conservative jurisprudence?” If not, don’t cite Will’s column as an argument for dismissing Miers. Powell’s ABA credentials, btw, were quite stellar. Here’s the brief bio of Justice Powell:

A Virginian by birth, Lewis Powell spent most of his life in the Tidewater State. He rose to the top of his profession when he was elected president of the American Bar Association in 1964.

Powell was a moderate before he joined the Court. He served on local and state boards of education at a time when there were strong demands to resist racial desegregation. With a Supreme Court in balance ideologically, Powell was cast in the middle of several important issues during his tenure. His vote decided the Court’s first confrontation with abortion and affirmative action.

Not just wrong on Bakke, but also wrong on Roe. Just like George Will was wrong on the first President Bush, whom will tagged a “lap dog,” part of the conservative critique that helped bring us Bill Clinton.

And especially, in this column, wrong on faith. Study this paragraph from Sunday closely:

Miers’s advocates tried the incense defense: Miers is pious. But that is irrelevant to her aptitude for constitutional reasoning. The crude people who crudely invoked it probably were sending a crude signal to conservatives who, the invokers evidently believe, are so crudely obsessed with abortion that they have an anti-constitutional willingness to overturn Roe v. Wade with an unreasoned act of judicial willfulness as raw as the 1973 decision itself.

First, I have to note that Will allowed his love of language to cripple his argument. “Incense defense” sounds wonderful, but is so bizarre in the context of an evangelical nominee as to raise the question of whether Will intentionally set out to offend.

But so do his missiles about “crude” people. Who are they? James Dobson, Chuck Colson, Jay Sekulow, Lino Graglia, Ken Starr? Four out of five are evangelicals. Does Will equate evangelical faith with crudeness?

And what, exactly, does “crudely obsessed with abortion” mean? Rod Dreher of NationalReview.com’s The Corner thought this Will column quite devastating to Miers’ nomination supporters. Does Rod agree that seriousness about abortion is “crude?” Does K-Lo? Does William F. Buckley?

It is disappointing to see both Judge Bork and George Will run off the cliff in the same week, and to do so with such intemperate rhetoric. (What does Judge Bork think of
think of Justice Powell, I wonder?)

But I am certain that Ronald Reagan –who asked George Will to prep him for debates and who nominated Robert Bork– would have nothing of the assault on Harriet Miers. Nothing. At. All.

A final note. I joke with Dennis Prager a week ago that George Will’s instant rejection of Miers was part of “baseball envy” on Will’s part. I am not sure who knows more –really knows– about the
game, Bush or Will?

But I don’t think W ever second guessed his manager when, in the top of the sixth, the manager made a decision the owner found inscrutable.

That’s the difference between an owner and a sportswriter. One lives to win. The other lives to write good copy.

See also President Aristotle, a young conservative trained at Oxford, just like George Will.

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