In all fairness...at the time the Trailblazers made that pick, I think most teams would have agreed with the choices they made.

First and foremost, they already had a shooting guard in Clyde Drexler. They had a fairly good team as it was, but they were missing a solid big man. And while Jordan was clearly a good player, at the time, few would have predicted he would turn into the best player in NBA History. Hell, the Rockets took Hakeem before Jordan as well.

The Sam Bowie pick is bad in hindsight, given how good Jordan turned out to be. But at the time, the logic made sense.

Balta-

Yeah, I know all that. I was gonna use Charlie Villanueva instead, but didn't figure most people would understand the reference.

Then perhaps a comparison to the critics who said Indiana should have picked Steve Alford over Reggie Miller.

Kudos to anyone who refuses to blindly drink the Flavor-Aid concerning this candidate. Sorry Dubya, but the last time a President said "trust me" regarding an appointee, it was H-Dubya, and he landed us with Souter. While Bush "knows" Miers, it would be must easier to vet the qualifications of Maura Corrigan, Alice Batchelder, Edith Jones, Priscilla Owen, Janice Rogers Brown, Michael Luttig, Michael McConnell, or Samuel Alito.

This nominee is damaging for two reasons. First, it sends the message to young conservative lawyers and judges that adherence to originalist/textualist philosophy is the surest ticket to the cutting-room floor in the selection process. Second, it institutionalizes the dicotomy between Republican and Democrat nominees. That is, Republican must submit lesser qualified, moderate candidates with obscure paper trails, while Dems pack the court with Miss ACLU's.

One argument that surfaces in these discussions is that other justices have had little or no judicial experience. Does that argument not seem misplaced these days? We currently have 875 federal judgeships, with 49 vacant. In other words, there must be at least 826 individuals with federal judicial experience in the land. Is the current nominee truly more qualified than all of them? That seems, well, unlikely. And this does not even touch on all those state supreme court judges. It is true that we've had justices in the past with no federal judicial experience. But it is well to remember that the ratio of federal judges to Supreme Court judges is much higher these days than in the past. To illustrate, we've had nine Supreme Courts seats to fill since 1837, while other categories of federal judgeships have increased steadily. By 2000 we had 179 appellate judgeships and 651 district seats. Counting just those federal judgeships, that's a ratio of federal judges to supreme court seats of 92:1. The equivalent ratio in 1975 was 55:1, in 1950 it was 31:1, in 1925 it was 17:1, and in 1900 it was only 11:1. Looking at appellate judges alone, the ratio rose from 3:1 in 1900 to 20:1 in 2000. In other words, the preference that a Supreme Court justice have federal judicial experience seems much more practical now than it did in the past. Put more stridently, the justification for nominating individuals without such experience seems to have diminished.

You touched on this in another post. I am getting the impression that she was selected for one issue, her pro-life stance.

Lee,
Incorrect - Harriet Miers was chosen because she gives great backrubs.

I agree with Terry - the point in choosing a new justice to the Supreme Court is to choose someone who will interpret the Constitution as it was written and leave legislation to Congress. (Oh wait, Congress doesn't know how to legislate....)

Lee wrote:

You touched on this in another post. I am getting the impression that she was selected for one issue, her pro-life stance.

But he could have had a top notch legal mind like Michael McConnell, who is also anti-abortion and also quite confirmable. She was selected because solely because of Bush's personality and his regard for her. I guarantee you that this was not the idea of his advisers.

Ahh, poppycock. That's nothing but the rambling of an elitist who is dissapointed that Bushie didn't pick someone from the Halls of the Elite. I suppose Justice Robert Jackson, a graduate of a less prestigious law school than SMU, and a crony of FDR's, would have been a "Sam Bowie" pick. Or John Adams's inexperienced buddy John Marshall? Or Justice Rehnquist, who graduated from law school at a time when getting into Stanford Law School was more likely than being rejected?

I am always amused by diatribes against elitism, as though accomplishment and ability were things to be avoided. What on earth is wrong with elitism? The entire notion of education is based upon elitism, upon the notion that it is better to be educated than ignorant, that to know more is better than to know less, that to excel at what you do is better than to achieve only mediocrity. For the reasons Prof. Barnett spells out, a person is better prepared for the court if they have thought deeply about constitutional interpretation and if their views have been forged by the intellectual work of serious scholarship than if they have spent a career as a shill or a paper pusher. Calling someone an elitist just may be the single dumbest argument one can use.

Miers was chosen for her immense skill in posterior osculation. Even if the desire was to choose someone from outside the federal judiciary he couldn't have found someone better qualified? I'm not a conservative but I could respect the Roberts nomination. Not this one.

This is a nomination of which Senator Hruska would approve. As Senator Hruska said of Nixon nominee Harold Carswell

"Even if he was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there."

This is cronyism pure and simple. "You're doing a heckuva job, Brownie."

Doug-

Wow, if that isn't a perfect expression of the ever present anti-intellectualism in American culture.

Oh yeah, that Hruska quote just gives and gives.

I see no evidence that the “well-qualified” are more apt to make wise decisions. Roe v. Wade resulted from brilliant, well qualified jurists. She is smart and an evangelical Christian. I’ll take her in a heartbeat.

It's simple arithmetic. Fitzgerald + Rove/Libby/Cheney/Bush = Miers

The grand union of anti-intellectualism and incompetent reasoning instantiated in David's last comment pretty much sums up the world-view of those still in the Bush camp on this one, in which faith is somehow more important than, well, anything, even in epistemic matters. David's main statement itself -- that being an evangelical Christian will makes someone ever-so-much-more likely to make better decisions than highly trained experts, in areas outside of the religious sphere -- is silly on its face. (Does one expect an evangelical physician with mediocre credentials & no interest in staying current with the literature, to perform surgery better than a nonbeliever who has trained at all the top programs & published on ground-breaking new techniques?)

And, even granting him his one cited datum (Roe v. Wade), we may well ask how many contrary data might be rather easily adduced. This president himself offers a great many examples of how being an evangelical Christian may very well fail to lead one to making very good decisions. And if Sen. Frist counts as an evangelical Christian, well, then the data just keep rolling in, don't they?

(Just to be clear, I'm not arguing for the opposite of David's claim, but only for its negation. I suspect that, if one controlled for intelligence, training, and so on, that evangelical decision-making competence is indistinguishable from non-evangelical decision-making competence.)

David Heddle wrote:

She is smart and an evangelical Christian. I'll take her in a heartbeat.

Boy if that isn't a perfect expression of what is wrong with our political system...

Perfection? I have achieved perfection? Oh if only mom were alive to see it, she'd be so proud.

It is not anti-intellectual, it is in fact quite analytical.

1) Deciding whether a law is constitutional is not deterministic, otherwise we'd have a computer algorithm and no need for a Supreme Court.
2) That said, justices will naturally be influenced by their own ideology.
3) Any reasonably intelligent person can read and understand the constitution. That ain't rocket science or medicine.
4) Given 1, 2, and 3, it's crystal clear that an ideal justice (for me) is an intelligent person whose views and values are most closely aligned with my own.

So, yes, I would rather have an intelligent Christian justice than a brilliant atheist. I'll go out on a limb and speculate that many atheists would rather have an intelligent atheist than a brilliant Christian.

Bring her on!

David, I doubt you'd apply this same type of reasoning to your own field of nuclear physics, nor should you. But you apparently think that nuclear physics, because it is "deterministic", requires real expertise, whereas constitutional law, being non-deterministic, only requires that someone be reasonably bright. Well I'm sorry, but that's nonsense. Constitutional interpretation is far more complicated than you think it is and the set of skills required to do it well is not something the average reasonably bright person has.

The distinction is one of training and applied effort, just as it is in your field. A reasonably intelligent person can learn those skills, just as they can learn to be a nuclear physicist, but only if they put in the time and effort to develop those skills. Michael McConnell is better qualified and better prepared to be a Supreme Court justice than the attorney who prepared your will, for example. Yes, they're both attorneys, but one has spent 3 decades immersed in constitutional issues, engaging in scholarly debate with others of the same rank, and practicing those skills that make one a good judge; the other has been a paper pusher doing the legal equivalent of working an assembly line.

I'm just baffled by this notion that study, effort and accomplishment is unnecessary in this field because any reasonably bright person could do it. I'm doubly baffled by it coming from someone who is allegedly a conservative. I thought that one of the principles of conservatism was a rejection of this kind of fake egalitarianism of ability and an insistence that individuals can distinguish themselves by the hard work, discipline and effort that leads to professional achievement.

This whole thing is a poison that is pervasive throughout our culture, this notion that we want a leader who is a "man of the people". Nonsense. We should want leaders who are a damn sight smarter and better educated than the people, who as a group are stupid and easily led. We have this pervasive distrust of experts because we've got this silly idea that all you need is "common sense" - something undefined and apparently non-existent - and you'll know all you need to know. It's the same mentality that leads to the empty charge of "elitism", as seen above in the comments. It simply isn't true that you can pull someone off the streets and as long as they're intelligent they can do that job, any more than that would be true of your job.

Ed,

I am not sure what the nuclear physics comment was for. My point was since interpreting the constitution is not deterministic, we do need some clever folks on the court. On the other hand, it is not the most intellectually demanding job in the world, either. And there of times when, in my opinion, the resident brianiacs really screw it up.

So, why not hope for someone who is smart enough (I have no doubt she is) but who shares my values? Am I alone in this view? And the man-of-the-people thing is a stretch. I'm not saying she could be big-haired trailer park trash so long as she loves Jesus.

Do I think she'll embarrass me? Nope. Do I think she is up to the task? Yes. Do I think she'll make decisions that I'll agree with? I do. So, from my perspective, what's not to like? Of course everything could turn out bad and she could be Souter v2.0. But for now, I'm delighted.

Earl Warren was mostly a politician but led a court that gave us some of the best and greatest decisions the country has ever known, such as New York Times vs. Sullivan, Brown vs. Board of Education, Gideon vs. Wainwright, and Miranda vs. Arizona.

My surprise about conservative attacks on Miers is not that they exist, but how brutally personal some of them have been -- many questioning the sincerity of her faith, making snide comments about her having never married, etc., describing her as "dumb" -- which she is clearly not.

There are legitimate concerns about her. I don't know that it is best to name someone who has such an intimate relationship with the current executive branch.

On the other hand, what is a "strict" constructionist? The courts, liberal and conservative alike, have pretty much said that the President can wage war whe, how and where he likes such that the "war declaration" clause in the Constitution is now totally meaningless.

But it's nice to see conservatives going after each other for a while and letting the rest of us have time to heal from prior battles.

My surprise about conservative attacks on Miers is not that they exist, but how brutally personal some of them have been -- many questioning the sincerity of her faith, making snide comments about her having never married, etc., describing her as "dumb" -- which she is clearly not.

Gee whiz, I haven't seen anything like that. Have you been lurking in the FreeRepublic.com message boards?

I'm not familiar with FreeRepublic.com. I am aware that Operation Rescue doesn't care for the Miers nomination, but they are on the lunatic fringe.

No, I was looking over websites and saw that Mark Byron listed Miers having never married as a negative and Joe Carter of Evangelical Outpost making comments that I could only read as questioning the sincerity of her faith. I also saw that Manuel Miranda compared her to the corrupt Abe Fortas.

David Heddle wrote:

My point was since interpreting the constitution is not deterministic, we do need some clever folks on the court. On the other hand, it is not the most intellectually demanding job in the world, either.

I think that is not just wrong, but off the scale, into the outer atmosphere of lunacy wrong. I can scarcely imagine a more intellectually demanding job.

So, why not hope for someone who is smart enough (I have no doubt she is) but who shares my values? Am I alone in this view? And the man-of-the-people thing is a stretch. I'm not saying she could be big-haired trailer park trash so long as she loves Jesus.

But you are placing agreement with your religious views as the primary value, and that just seems crazy to me. Maybe it's because, as a deist, there are very few people who agree with me religiously and therefore I never even think about what religion a person is when evaluating their competence. Nor do I necessarily consider whether they agree with me, for that matter. The justice I disagree with the most on the court, Scalia, I also regard as the finest mind on the court (and I'm not sure there's a close second).

The discussion here has mostly been about how utterly indefensible David's premise 3. is, but it's worth noting a few of the other sillinesses in his 'analytic' approach.

First of all, the inference from 1. to 2. is fallacious: it presupposes that all non-algorithmic decision-making will of necessity be influenced by ideology. But that's an obviously false presupposition. There are a great many professions in which many decisions & actions are a matter of judgment, not just algorithm, but for which we do not think that ideology, creed, etc. will play much of a role. Just to list an obvious few off the top of my head: oncologist, car mechanic, math teacher, ASL interpreter, small business owner, accountant.... I take it as obvious that in all these arenas, we just don't care about the influence of ideology, and certainly not of religious belief. We care, rather, about their practitioners' overall qualifications & talents in their field.

So, in order for there to be any sort of legitimate inference from 1. to 2., we would have to add a further premise that there must be something especially challenging about Constitutional interpretation, such that ideology will be more influential than skill & training. Yet such a premise would be flatly inconsistent with that premise 3. that Ed has been skewering. Thus, the only way to make the first inference cogent is to render the whole argument incoherent.

It's also far from obvious that evangelical Christianity counts, in this context, as an appropriate ideology. In the context of the argument, ideology is supposed to be that which influences judgments about Constitutional law. Yet there isn't very much in the Bible of obvious application to such fundamental matters of jurisprudence. Even granting (wrongly, in my view) that the Bible offers a simple answer to questions about Roe v. Wade, there's just no obvious path from belief in the Bible to answers about, say, affirmative action; the scope of the Commerce clause; the limits (if there are any) on the 2nd amendment; to what extent political contributions ought be protected as speech; and so on. And the 'answers' the Bible would give to questions like, how to treat the mentally ill (i.e., get them exorcised) don't seem terribly applicable to today's justice system. So evangelical Christianity by itself cannot be of much help in addressing almost all of the central issues that will come before the court. So, even if ideology is a determining factor, we would have to look to other aspects of a person's commitments (e.g., their attitude towards the ABA and the Federalists, to take one potentially timely example) than their particular brand of religion, in order to determine what those ideological influences will be.

Overall, then, we have on our hands a really awful little argument, which has been put forward by an evangelical Christian who is well-credentialed in his field... why, it's almost enough to make one doubt whether someone's being a smart evangelical is sufficient evidence by itself that they will have good intellectual judgment!

Philosopher,

You are wrong. In that argument, you do not have to assume there is something especially challenging about Constitutional interpretation in order for 1 to 2 to be legitimate. You just need to assume that the job of interpreting the Constitution, and unlike the examples you cited, is extremely susceptible to influence arising from ideology. That is not a big stretch. The very fact that the recent court had a fairly (though not perfectly) predictable liberal-conservative split is proof. If the job wasn't sensitive to ideological influence, then we'd see more of a random mix in split decisions.