Elitism and Cronyism

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One element I didn't really get into in my criticism of attacks on the Harriet Miers nomination was the cronyism charge. It seemed rather elitist to me to suggest that she was unqualified simply because she didn't have academic or judicial experience, but I didn't have any carefully formulated thoughts. Beldar has more explicitly connected elitism and the cronyism charge. I pretty much agree with everything he says, except maybe the part about metaphysics being bad. I can't very well say something like that about my own line of work. I was going to write up a long post saying some of the things Beldar says, but Beldar says it better. I'm becoming more and more convinced that anyone criticizing this nomination on the grounds of cronyism has no argument or is simply making some sort of error either in what constitues cronyism or in the facts about Miers.

I suggest Eugene Volokh's much healthier (I mean healthier than the elitist ones Beldar criticizes) list of qualifications for a Supreme Court Justice, and I think President Bush is in a better position to judge whether Harriet Myers has many of those qualities than anyone else.


It seemed rather elitist to me to suggest that she was unqualified simply because she didn't have academic or judicial experience.

The more careful critics have not been saying that she is "unqualified simply because she didn't have academic or judicial experience", but rather they have been saying that there is no evidence that she is qualified--in no small part because she has no academic or judical experience.

The key to refuting the cronyism charge is for Miers to be truly qualified for the position. The problem is that if Miers--based on her resume and what is known about her publically--is qualified, then thousands of people are qualified since they have similar, comparable, or better resumes and public records.

Now that is fine for some positions. But while I am no expert on the US Judicial system, I have the feeling that there should not be more than, say, 100 people truly qualified for serving on the SCOTUS at any given time. (If more than 100 are qualified, then at that point we ought to raise our standards.)

If we go by Volokh's qualifications, tens, or possibly hundreds of thousands of people are qualified. Heck, both you and I meet all of the qualifications on his list. But I hardly think that either of us is really qualified to serve on the Supreme Court. (Admittedly, Volokh's list is not exhaustive, but I do find it extraordinarily odd that the qualifications don't include any sort of expertise or mastery of the law and the Constitution.)

I have no problem with a lawyer who has no academic or judicial experience being nominated to the SCOTUS. And I don't doubt that Miers meets the quailifications of Volokh's list. However, I do expect that any nominee be truly distinguished in their field, whether that field be law, academia, or the judiciary. So the question for me is: "Does Miers reach that level of distinction?"

As I was lying awake dealing with three waking kids in the middle of the night, I was just thinking that I might supplement this argument by pointing out that I think a whole lot of people could be pretty good justices on the Supreme Court, and different ones could bring different strengths to the position. I do as a matter of fact think you and I are qualified for the position. The sort of weaknesses we have could be compensated for by the fact that it's the responsibility of the lawyers to come up with the arguments for their own position. The justices are just supposed to decide which case is stronger after having heard the arguments, and they can give each other arguments as well. Writing up opinions can be assisted by law clerks who know the format and can check references well. Apparently Justice Blackmun didn't write his opinions but had his clerks do it, and he simply edited them thoroughly. There are plenty of people who could do a better job of some aspects of the job, but I think anyone who could read a Supreme Court opinion and critique it could be a pretty good justice with a little bit of on-the-job training, and isn't all that it takes to be barely qualified? Surely she's got more than that after having been a successful and even influential lawyer for so long.

I also think she's met a certain level of distinction, which the first post I linked to tries to argue for. That was one of the things I wanted to see what people had to say about first, and it seems the only arguments against it are relying on things I consider elitist.

I also think she's met a certain level of distinction, which the first post I linked to tries to argue for.

Since I don't know anything about what is considered good and bad in the law field, I'm not able to judge well if Miers is truly distinguished. But from other people's analysis (including the post you linked to), it seems that she is "pretty good". But notably, no one (except Bush) considers her the "cream of the crop" or "best" or "top notch" or anything like that. So, yes, she seems to reach a certain level of distinction, but not the top level of distinction, which is what I'd be looking for in a nominee.

For example, you'll note that I never complained about the Roberts nomination. That is because, based on everyone else's analysis (since I'm not qualified to make my own judgement), he was top notch. That's the kind of person I want serving in the highest court.

Now, it is no wonder that you think Miers is qualified if you think that you and I are also qualified. In my opinion, she is certainly more qualified than I. However, I really don't think that I am really qualified to be a Supreme Court Justice given that there are considerably more qualified candidates out there. In my opinion, only the best of the best ought to be serving on the highest court.

While I think that Volokh's qualifications list is fine for, say, county judge positions, I think that it is wholly inadequate for such an important, lifetime position as the SCOTUS. I'm not even sure that I've read the entire Constitution from beginning to end. I shouldn't be qualified for that position.

Now consider if Bush had nominated me. You think that I'm qualified. However, I have no history of being interested in the law and have no history of working with the law. I am not a lawyer, judge or professor. I'm not even a paralegal. No one has ever heard of me by reputation; if people know my name, it is because they've met me. Given that, do you think that if Bush nominated me it would be unreasonable for people to say that there is no evidence that I'm qualified?

Just because they don't have evidence doesn't mean you're not qualified. People aren't just saying that there's no evidence that she's qualified. They're not even just saying that she's less qualified than other people whose names have been floated around. They're saying that she's unqualified, pure and simple. So even if it would be reasonable to say that they have no evidence that you're qualified, that doesn't mean they could say that you're not qualified.

This seems to me to be a confusion of metaphysics with epistemology. The fact that I'm not in a certain state of knowledge about someone's qualifications has little bearing on whether the person is actually qualified unless I have reason to think I would have some sort of an inkling about whether that particular person is qualified. I don't think I should in this case. I think we all did with Roberts. That's clearly a difference, but that doesn't mean I should go around saying she's unqualified. I don't know that, and people who don't know her well don't either. Those who do know her well are saying she is qualified, and that includes the Chief Justice of the Texas Supreme Court, who is certainly no slouch.

Sorry it's taken so long to respond to this one. I've been rather busy...

People aren't just saying that there's no evidence that she's qualified. They're not even just saying that she's less qualified than other people whose names have been floated around. They're saying that she's unqualified, pure and simple.

OK. But some conservative critics have merely been saying that there is no evidence of her being qualified. In an effort to be charitable, I've taken them to be representative of what most conservatives have been thinking, even if it is not what most conservative bloggers have been writing.

Moving on...

There seem to be two issues that I can see. First, we disagree as to what counts as qualified. At the one end, there are those who think that only the 9 best legal minds are qualified to be on the Supreme court (and 8 of them are already filling their positions). At the other end, there are those like you who think that many thousands of people are qualified. For those whoe are close to the first camp, it is probably not unreasonable to say that Miers is unqualified.

Second point. There also may be a difference in how the word "qualified" is being used here. You are using it to mean "capable and suited". Some people use it to mean something along the lines of "certified as capable and suited". The latter implies the former, but not vice versa. If people are using "qualified" with the latter meaning, then Miers has difficulty as her resume as little to "certify" her. Especially so now as executive priviledge prevents her work for the white house from being released.

Oh, and just so you know who I'm reading:

Krauthammer calls Miers a "constitutional tabula rasa", but never outright calls her "unqualified" depite his scathing attack.

George Will says of Miers "there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks." in a similarly scathing attack. Again, he never calls her "unqualified".

Andrew Sullivan says that there is "no evidence" that she is qualified, but concedes that she may make a good justice and that he will wait until the hearings to decide if she is qualified.

Glenn Reynolds says that he is "underwhelmed", but does not call her "disqualified". Like Sullivan, Reynolds thinks that it is possible that Miers could make a good judge and will wait until the hearings to decide if she is qualified.

So while each critic may have various inaccuracies in their posts/essays, each of the ones I've noted all refrain from calling Miers "unqualified".

I don't have time to find links, but Pat Buchanan used the term 'unqualified', and I believe Ann Coulter did also. Randy Barnett at the Volokh Conspiracy has more than once called her unqualified. Posts and numerous comments at Confirm Them and RedState.org have used the term. Those were the first places I saw it. Kieran Healy at Crooked Timber also called her unqualified.

You're wrong about Andrew Sullivan. He doesn't just think she's unqualified. He thinks she's obviously unqualified. Maybe he's also open to being disproved, but he says it so clearly that it's hard to think of him as saying he's truly open to thinking of her as possibly qualified given that he calls her "obviously unqualified".

Krauthammer also makes a stronger claim than you repeat. He lists what he thinks is the most important requirement, and he says it's nonexistent in her. He starts out calling the nomination a joke, and the reason seems to be that he doesn't think she passes the bare minimum. He doesn't use the word, but it's clear from what he says that he thinks she's unqualified. Why else would he call the president to withdraw the nomination?

George Will says she doesn't have the abilities required for what Supreme Court has to do. Isn't that saying she's unqualified? I don't know how else to read it.

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