Elitism Against Miers: Misunderstanding the Charge

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I'm becoming more and more convinced that many of those who are opposing Harriet Miers' nomination to the Supreme Court are indeed elitist. Indeed, I think it's a kind of elitism that blinds them to what those calling them elitist are really saying. Dennis Coyle expresses his frustration at the elitism charge, claiming that Bush simply confuses intellectual qualifications with a liberal approach to jurisprudence. Ultimately, his defense of his elitism is that those claiming it's elitism are simply anti-intellectual. I think this is a fundamental misunderstanding of what those calling it elitism really mean. It's not anti-intellectualism by any means, and it's certainly not confusing intellectual qualifications with liberalism. It's not claiming that intellectualism is bad. It's not claiming that intellectual standards should be thrown out. It's not claiming that we should abandon principles for practicality. It's not claiming that intellectualism is responsible for liberalism. What it's claiming is that the intellectual standards we need should be much broader than the elite Constitutional Law specialists think they should be.

The work of the Supreme Court often involves ConLaw, and it involves difficult and crucial questions about ConLaw. Someone appointed to the Supreme Court ought to be competent in such matters. There's no evidence that Miers isn't, however, and all claims to the contrary are impatient and premature. She has some experience in ConLaw, contrary to the misinformation being spread about her. It's unclear how extensive this background is, but she has argued cases in that area, and at least one of them made it to the Supreme Court, who upheld her side of the case without needing to take it to oral arguments. This doesn't tell the senators all they need to know about her competency in that area, but there's a process for figuring that out. If she is incompetent about ConLaw, that will come out at the hearings. It will be obvious. We may not be able to tell where she stands within the realm of competency, but that's fine. If she's competent, she can do the job. That's all senators are supposed to be deciding anyway, according to the usual conservative view, especially given that ConLaw isn't the be all and end all of Supreme Court jurisprudence, despite those who have elitistly declared it to be such.

The main point of the elitism charge is that ConLaw specialists are arbitrarily selecting ConLaw as the only important part of what SCOTUS does and expecting any nominee to be a cream of the crop expert on that one area. She should have intellectual excellence, but it doesn't need to be top expertise in that one area of law. She clearly has expertise in law in general. There's no question about that. She clearly has top intellectual ability. All the information we have suggests that she could easily have gotten into an Ivy League school (or equivalent) but chose to remain in Dallas for family reasons, choosing the best law school there, which is a subordinate point in the elitism charge. Some have indeed selected her law school as a lack of qualifications, where all evidence suggests that where she went to law school does not indicate her inability to go to a better school (not that SMU is all that bad anyway). Neither did her SMU degree hamper her ability to do incredibly well for herself career-wise, which is the primary purpose of getting a degree from a good school. That she could utilize what some have treated as a lesser degree to get so far reveals something about her intellectual and other abilities. Ignoring such factors and thinking of the mere fact of where she went to school and how it is ranked is indeed a sort of elitism, though as I've been saying this is not the main impetus behind the elitism charge. That is primarily about the ConLaw elitism.

All the information we have suggests that she's mastered the kinds of law she has handled almost all her adult life. What's elitist about the opposition to her is that it assumes ConLaw is the most important, and really the only, kind of law to evaluate her by. She ought to be competent in it, but it really is elitist to expect that being qualified requires being anywhere near as good as any of the current specialists in ConLaw who make up the current SCOTUS. Somehow we've gotten away from wanting people expert in the law in general on SCOTUS, and we've moved to a point where we expect just this one small but important subfield of law is the only important consideration for SCOTUS nominations. That is indeed elitism, and making that claim does not amount to anti-intellectualism. I write this as a Ivy League graduate who very much enjoyed and appreciated my time at an Ivy institution. I write this as a Ph.D. student in philosophy, arguably the most intellectualized of all disciplines.

2 Comments

What's elitist about the opposition to her is that it assumes ConLaw is the most important, and really the only, kind of law to evaluate her by.

I don't really think that any of Mier's critics think that a decent nominee could be one who is an expert on ConLaw but ignorant of all other law.

It will be obvious. We may not be able to tell where she stands within the realm of competency, but that's fine. If she's competent, she can do the job.

[snip]

She ought to be competent in it, but it really is elitist to expect that being qualified requires being anywhere near as good as any of the current specialists in ConLaw who make up the current SCOTUS. Somehow we've gotten away from wanting people expert in the law in general on SCOTUS, and we've moved to a point where we expect just this one small but important subfield of law is the only important consideration for SCOTUS nominations.

Maybe I'm being elitist here, but I think that competence in this particular case (SCOTUS nominees) entails expertise in ConLaw in addition to expertise in law in general. While you consider ConLaw to be a "small but important" part of being a Supreme Court justice's job, I would call it a significant, and the most important part of the job. As the highest court in the land, the SCOTUS is the final authority on the interpretation of the Constitution. As such, you can make the claim that Consitutional issues are the special domain of the SCOTUS (though not the exclusive domain--nor that other courts have no say in Constitutional issues). So far as I have been keeping track of Supreme Court cases (admittedly not my major focus in life), the majority of them are centered on or decided by Consitutional issues. So far as I can see, ConLaw is not merely a "small but important" part, but rather a major, indeed essential, part of a SCOTUS justicie's duties. In light of this, I think that competence in ConLaw, in this case, means expertise--possibly meaning the highest level of expertise. Is it really elitism to require a candidate to be an expert in the most important aspect of their job?

All the information we have suggests that she's mastered the kinds of law she has handled almost all her adult life.

This seems like a bit of a dodge to me. Certainly she has mastered the areas of law she has already handled. But your assertion carries the implication that she will grow into the role, gaining the essential mastery as she needs it. But if this is something that she needs for the job, then wouldn't a better nominee be someone who already has that mastery? While there is certainly a place for hiring people based on potential, I don't really think that the SCOTUS is it. The SCOTUS is a place for people who have realized their potential. (That is not to say that thay can't grow even more while they are on the job, but rather that their expertise should already be present at the start of the job.)

I think that this whole thing goes back to our previous disagreement about Miers and nominees in general. I think that maybe only 100 people or so are qualified, while you think that tens of thousands are. Sure Miers can do the job, and indeed she may end up doing the job very well. But the same thing could be said about tens of thousands of other people. Why is she the best person for the job, especially when others have demonstrated levels of mastery that she hasn't?

You mentioned Ivy League shools, so I'll use that as an example here. The Ivys are elite. That is to say, they get far more applicants than they can accept. So they get to choose. When the admissions office looks at an applicant, they aren't saying "can this person handle being a student here?" or "is this applicant competant?". The answer for those questions for the majority of applicants is "yes". They question they are asking is "Is this one of the best N applicants in our pool?" where N is the number of open spots. For an elite institution (elite in the broad sense of "more applicants than spots"), that is the right question. The SCOTUS is elite too and the question isn't "Will she be able to handle it?" but "Is she the best for the spot?" You will undoubtedly answer "Is there any reason to think that she isn't?". My response will of course be, "Is there any reason to think that she is?".

I think you're misunderstanding my point. I'm not saying that I would use the same criteria Bush has used. I would probably make a decision more along the lines you're suggesting, choosing someone who is excellent in ConLaw and the other half of the cases the Supreme Court handles (actually, I think it's a little more than half from other kinds of cases). What I'm saying is that a president has no obligation to do that. It seems like the best thing to do, given a certain conception of what the Supreme Court is supposed to be. The Constitution itself does not specify that conception, however, and that conception has only come from conventions about how people have recently been choosing justices for the high court. If you go back 70 years, I would say, you had a very different set of expectations for presidents. I'm not sure the president has any obligation to go by what we now have come to expect a president to do in appointing justices, even if I myself would tend to go by those expectations.

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