Can't Help Myself

I have no problem with those who argue that Harriet Miers' beliefs are unknown and therefore they aren't comfortable with her nomination. Completely fair and reasonable. But --precisely because she doesn't have a paper trail-- on what possible ground can anyone suggest she is a mediocrity? By their own argument, they have no idea how she thinks, and her resumé is objectively impressive. Bruce Fein makes the right point in his column this morning, but reaches the wrong conclusion.
Mediocre minds resist challenges to prevailing orthodoxies. . .
Precisely. And a dangerous prevailing orthodoxy is that only experts can understand the Constitution, and it takes a lifetime of concentrating solely on constitutional questions to be fit for the Court. It takes bold thinking to realize it would be good to challenge that notion. The people charging "mediocrity" are revealing themselves to be part of the herd. Eugene Volokh posts a great response to George Will's column from Reginald Brown, who's worked with Miers.
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.

And to those who keep freaking out about Bush's use of the term "diversity." Miers wasn't picked because she was a woman, but because she's outside the constitutional lockstep that Will & others apparently support. That's the kind of diversity Conservatives claim they want, but when they get it --horrors!

OK, now that really is all I have to say on the matter until the woman opens her mouth and speaks.