Miers/Bush Apologism: Two Coming Techniques

I see a couple strategies for defending Bush’s cronyism have already emerged. Jonathan Adler tries to suggest that Roberts was so incredibly well-qualified that Bush had nowhere to go but down :”Does her record match that of Chief Justice Roberts? Of course not– but whose does? (Answer: No one.)” (This was also was a big theme among conservertarians who claimed that Senators who voted against Roberts were violating the Constitution or opposed to judicial independence or some other nonsense.) Uh, let’s calm down, please. Roberts is an able lawyer and judge, but he’s not Louis Brandeis. Bush could have chosen a number of judges with more impressive credentials (McConnell, Garza, Luttig, etc.) His performance at the committee was skillful–but the skill was in giving answers that had no content.

Adler also suggests another agrument we’ll hear a lot of: the fact that Miers hasn’t served as a judge shouldn’t be disqualifying. And on that he’s right (even if it’s becoming much less common, perhaps for good reason.) But his claim that her credentials are “arguably greater than other non-judges picked for the Court in the past several decades” is highly problematic, although I guess it depends what you mean by “several.” Yes, many great justices of the 20th century had no judicial experience. But they had some of the other kinds of credentials that would provide evidence that they could be good justices. Hugo Black was was a United States Senator. William Douglas was an innovative academic theorist and head of the SEC. Felix Frankfurter was one of the country’s most distinguished legal academics, and also had extensive experience with the nuts-and-bolts of legislation. Earl Warren was a proesecutor, attorney general, and then was the Governor of California who was so widely respected he ran on both parties’ tickets. This is a long way from running the Texas Lottery Commission. That doesn’t mean that Miers couldn’t be a good Supreme Court justice, but she doesn’t have a lot of experience in jobs that would be most relevant, so if she turned out to be good it would be sheer luck.

…Cass Sunstein makes a useful distinction.