19 Oct 2005 Dick Morris, Brainpower, and Harriet Miers
It will come as no surprise to anyone to hear that I am not a member of the Harriet Miers confirmation team. That said, I think the column critical of Miers Dick Morris wrote for today’s Hill newspaper, in which Morris claims Miers lacks the brainpower to be a Supreme Court justice, is wrongheaded and unjustifiably insulting to Miers.
Inadvertently, it is insulting to Morris as well, as it displays his ignorance.
Morris writes, in part:
My mother used to say: It’s not enough to be Hungarian. You still need a little talent, too. To paraphrase her, its not enough to be conservative, you still need to have the brainpower to be a Supreme Court justice. And, if Harriet Miers is confirmed, she likely won’t be in the same league with her colleagues in terms of gray matter.Fifty years ago, it was OK to name a Supreme Court justice who was a layman. Hugo Black was a senator from Alabama. William Douglas was head of the Securities and Exchange Commission. Earl Warren was governor of California. The court was still dealing with broad and basic issues such as school segregation, reapportionment, the broad outlines of defendant rights, the application of the 14th Amendment to the states and the right of privacy.
But today’s court is much more than a legislative body on which people whose heart is in the right place should be picked to serve. It is an assemblage of experts in constitutional law who dice, prune, shape and redefine previous doctrines and decisions to apply to the new matters at hand. A modern Supreme Court justice is not some legislator who decides to vote for the plaintiff or the defendant. He or she must be a scholar who can argue and articulate new variations on old doctrines and find four other justices who see things the same way.
Some question Miers’s conservative credentials. That is not my worry. I’m happy that she may not be a knee-jerk right-winger. My worry is that she is just not competent enough to serve on the court…
Talk-show host and former Supreme Court clerk Laura Ingraham (how low we all eventually fall in search of a living!) says it best. “How can you expect a general-practice lawyer like her to go head to head with a Stephen Breyer? “
This article is so comprehensively bad it would be a waste of time to criticize it fully, but a couple of points:Morris must be a devotee of the “living Constitution” school of thought (which, for those of you not familiar with it, holds that federal appellate justices are a kind of uber-citizen who has the right to amend the Constitution without resorting to the cumbersome formal amendment process other citizens must use). Otherwise, Morris would never think that interpreting the Constitution now is any harder than it was 50 years ago, or that the issues facing the Court today are any more complicated than they were in the past.
Does Morris think the Founding Fathers would be over their heads if they were resurrected to serve on the Court today?
I don’t know enough about Miers to judge her capabilities or her views (I suspect Morris is in the same position), but I also take exception to Morris’s view (and Laura Ingraham’s, if Laura was quoted accurately and in context) that a “general practice” lawyer couldn’t handle court duties. Some could; some couldn’t. Possibly the fact that it is fashionable to denigrate lawyers (and has been since Shakespeare’s time) has kept society from recognizing that, while all professions have their share of incompetents, lawyers practicing at the top of their profession have to be very, very smart indeed.
The White House claims that Harriet Miers has been practicing at the top of her profession. I don’t know if this is true, but I note that Morris didn’t even try to challenge it, which probably means he had no evidence for doing so.
I submit that, on an IQ basis, if the White House is right, she would have to be smart enough for the Supreme Court.
For heaven’s sake, we have had senile Supreme Court justices, and not all that long ago. It was scandalous, but most people didn’t even notice.
(Hmmm… perhaps that last point may have something to do with why the Court is resistant to permitting C-Span coverage of oral arguments.)
Bottom line: Being a good U.S. Supreme Court justice is about more than IQ. It also is about having the wisdom to know when decisions aren’t the Court’s to make, and the discipline to leave those decisions to the people.
The public face of Harriet Miers’s career hasn’t shown us if she has these latter qualities. The White House has yet to demonstrate it.
That’s the real issue.
Dick Morris just doesn’t get it.