Why SMU Matters (a little)

If I seemed to be harping a little bit yesterday on Harriet Miers's educational pedigree, I would remind readers that it was Beldar who brought up her second-rate schooling as an argument for her. Beldar suggested that going to the "second best law school in Texas" was a mark in Miers's favor. To my mind that seems like a fairly desperate claim. If one is forced to argue that attending SMU is a reason to confirm Ms. Miers, then one must be woefully short on other supporting arguments.

But why should it matter where Ms. Miers went to school? If Miers had a long list of serious intellectual achievements or had created a long trail of serious public thought in the course of her career, then where she went to school would be moot. But absent any public evidence of intellectual horsepower (and faced with anecdotal evidence of the opposite) the fact that Ms. Miers went to a second-rate school does seem at least a little bit telling, if not overly important.

David Frum makes this point well:

The problem with Harriet Miers is not that she lacks formal credentials, although she does lack them. Had the president chosen former Solicitor General Theodore Olson, or Securities and Exchange Commission chair Christopher Cox, or former Interior Department secretary Gail Norton, nobody would complain that they were not federal appeals court judges.

Or had the president named Senator Jon Kyl (LLB, University of Arizona) or Senator Mitch McConnell (LLB, University of Kentucky) or Edith Jones Clement (LLB, Tulane), nobody would be carping at the absence of an Ivy League law degree.

Those who object to the Miers nomination do not object to her lack of credentials. They object to her lack of what the credentials represent: some indication of outstanding ability.

The objection to Miers is not that she is not experienced enough or not expensively enough educated for the job. It is that she is not good enough for the job.

Why is being smart important? Again, Frum:

All Americans are entitled to know that those judges who exercise the power of judicial review have thought hard and deeply about the immense power entrusted to them. If the courts were just about getting the votes, then the president should have chosen Dennis Hastert for the Supreme Court. But to change American law, it's not enough to win the vote count. You have to win the argument.

I would note here two things:

(1) It is absurd that Miers supporters are using, as the bulk of their argument for her qualifications, her time as head of the Texas Bar Association and her time running a law firm. If heading a Bar Association is such good preparation for the Supreme Court, why not nominate Martha W. Barnett, who was the first woman president of the entire American Bar Association? Or, if the size of the Bar Association doesn't matter, then why not nominate Gary D. Stott, who was president of the Central Utah Bar Association (and, as a bonus, went the very best law school in Utah and, as a double-bonus, is an actual judge; if you care about that sort of thing).

And second, if the skills of running a fair-sized regional company are so important, why not nominate Steve Jobs or Martha Stewart or Jack Welch or Rupert Murdoch, all of whom have run much larger companies much more successfully.

The reason Miers's supporters are using these patently ridiculous claims to support her are, of course, obvious. As George Will notes:

[T]here is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.

If John Kerry had produced a nominee with a comparable résumé, the Republicans now going to the ramparts for Miers would be--rightly--assailing that nominee for being completely unqualified for the High Court.

(2) Even if Miers would "vote right" as a Supreme Court justice--and I assume she would--that isn't the point. Even if Miers was the mythical fifth vote to overturn Roe--something I dearly want to see in my lifetime--conservatives should be concerned with bigger things, which is to say the legal culture itself.

To turn away from that now--at a moment when the conservative party ostensibly controls both the White House and the Senate--is to abandon principle for rank politics. If we were concerned with simply getting someone on the Court who would "vote right," then Bush should have nominated Gary Bauer or Rick Santorum.

A final note: While this is a disastrous moment for the Republican party, it strikes me as a pretty good moment for conservatism. It's nice to see that most conservatives are still willing to buck their political party on what they see as a violation of principle. (Again, even if you used a time-travel machine to assure conservatives that Miers would "vote right" for the next 20 years, I don't think they'd change their opposition.) I don't know that, in a similar situation, liberalism would muster the same fight within the Democratic party.