Thursday
When was the last time I posted an actual argument?
I've recently seen the contrarian argument being batted around that having very few qualifications/ being an intellectual light-weight is not an important problem for a Supreme Court Justice (and correspondingly not an objection to a Supreme Court nominee), presumably because being a good Supreme Court Justice doesn't require being particularly intellectual. You can find it being argued in comments to this post or in the first two and last paragraphs of this one This is a bad thing to be contrarian about, as I'll now try to demonstrate.
Yglesias's argument in that second linked post requires two false premises, one explicit and one implicit. The one he actually says is, "But far and away the most important thing about a Supreme Court justice is the way he or she votes. This doesn't simply reduce to the justice's political preferences, but it's basically about his theory of judging, not his intelligence." I don't want to dispute that the vote is the most important thing, but far and away is off. Actually writing opinions, and how they're written, is also really important. This is because lower courts have to apply the opinion as written, and how they'll distinguish from it or extend it as dependent upon the reasoning used. And Miers will have to write quite a number of opinions, and bad opinions lead to bad results even if the case is decided properly.
Furthermore, the voting by Supreme Court justices isn't, in a great many cases, between binary options. So Justices who are trying to maintain a majority or turn a dissent into one have to construct their opinion very carefully to appeal to different justices predilections, and this is how it should be. If Miers is a lightweight who is going approach everything bluntly, that will lead to less good opinions even when she isn't writing them.
The implicit incorrect premise is the disconnect between a theory of judging and intelligence. Presumably, one develops a theory of judging by thinking about judicial issues a lot, probably reading many different people's arguments about how judging should be done, and weighing those arguments. Since legal intelligence is in large part about how to weigh arguments, why should we think of a theory of judging as being a different thing from being intelligent? Anyways, there's no evidence that Miers has done any of this, making it pretty reasonable criticism that she (based on the evidence we've seen) an intellectual lightweight.
On the rest of Matt's post, he's been noting the total lack of or reduced versions of judicial review in other countries for a long time, but the important point isn't how liberal democracies that grew up without judicial review do operate, but how the modern United States would operate if it suddenly vanished. And I don't know why I'd imagine that would be good.
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Yglesias's argument in that second linked post requires two false premises, one explicit and one implicit. The one he actually says is, "But far and away the most important thing about a Supreme Court justice is the way he or she votes. This doesn't simply reduce to the justice's political preferences, but it's basically about his theory of judging, not his intelligence." I don't want to dispute that the vote is the most important thing, but far and away is off. Actually writing opinions, and how they're written, is also really important. This is because lower courts have to apply the opinion as written, and how they'll distinguish from it or extend it as dependent upon the reasoning used. And Miers will have to write quite a number of opinions, and bad opinions lead to bad results even if the case is decided properly.
Furthermore, the voting by Supreme Court justices isn't, in a great many cases, between binary options. So Justices who are trying to maintain a majority or turn a dissent into one have to construct their opinion very carefully to appeal to different justices predilections, and this is how it should be. If Miers is a lightweight who is going approach everything bluntly, that will lead to less good opinions even when she isn't writing them.
The implicit incorrect premise is the disconnect between a theory of judging and intelligence. Presumably, one develops a theory of judging by thinking about judicial issues a lot, probably reading many different people's arguments about how judging should be done, and weighing those arguments. Since legal intelligence is in large part about how to weigh arguments, why should we think of a theory of judging as being a different thing from being intelligent? Anyways, there's no evidence that Miers has done any of this, making it pretty reasonable criticism that she (based on the evidence we've seen) an intellectual lightweight.
On the rest of Matt's post, he's been noting the total lack of or reduced versions of judicial review in other countries for a long time, but the important point isn't how liberal democracies that grew up without judicial review do operate, but how the modern United States would operate if it suddenly vanished. And I don't know why I'd imagine that would be good.
