The brouhaha over the Harriet Miers Supreme Court nomination has breathed new life into the Mediocrities Deserve a Chance defense, first offered by Sen. Roman Hruska (R-Nebraska) in defense of Nixon Supreme Court nominee G. Harrold Carswell, a judge who was widely described as mediocre. “Even if he is mediocre,” Hruska told (in)famously told reporters, “there are a lot of mediocre judges and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Cardozos, and Frankfurters, and stuff like that there.” (By the way, Carswell was voted down.)
Today, defenders of the Miers nomination aren’t exactly championing mediocrity, but they’re deriding “elitism” and “snobbery.” See, for instance, Instapunk, who has a rather hilarious retort to Miers-basher George Will — ” Don’t ever take seriously any sermon delivered by an adult male who is wearing a bowtie” — and Varifrank, who writes:
This idea that has developed as of late that Supreme Court Justices are or should be “super human smart guys” is just crap and frankly I think its dangerous for the Republic. I think that fundamentally, the nomination of Mrs. Miers is an antidote for that poisonous idea. We’ve had our quota on the Supreme Court for women and minorities, now we have a slot for the “average American”. Yes, she is a lawyer, but she’s the least lawyer to be on the court in quiet (sic) some time and frankly I find that really refreshing and not a handicap at all.
Majikthise derides Varifrank’s argument as latter-day Hruskaism, and indeed his post is not a great advertisement for anti-elitism: he consistently spells the name of Justice Stephen Breyer as “Breyers,” and apparently thinks that the argument should be resolved with, “Do we or do we not trust the President?” Yet, to be fair, he’s not exactly making a defense of stupidity. For instance, explaining why he doesn’t care that Miers went to Southern Methodist University rather than Harvard, Varifrank writes:
Frankly, I would have loved it if she would have received her degree from night school, I could have judged her desire for the law very clearly with that. Someone who goes to Law school at night out of passion for the law and the attainment of justice is a bigger hero in my book than someone who’s mommy and daddy paid for “young junior” to go to 8 years of Harvard to follow in the family business at a white shoe law firm.
Well, so far, so good, though I don’t know if there’s a “night school” version of law school. [Update: A commenter informs me that some law schools do offer night classes.] But then Varifrank has to go and add that the best thing of all would be to have “someone with out (sic) a law degree at all” on the high court, because, you see, “Ill (sic) take the common sense of average folks any day over the well thought out judgment of the elite.” Yes, how elitist to argue that some expert knowledge of the law is required for interpreting the Constitution. In fact, a non-lawyer armed with “common sense” could have “liberal” rather than “conservative” instincts and follow the “common-sense” assumption that if something is good, it ought to be constitutional (and vice versa). To some extent, the conservative intellectuals who are now wringing their hands about Miers’ lack of credentials as a constitutional scholar are being bitten in the derriere by their flirtation with populism.
However, leaving aside the hypothetical Supreme Court justice without a law degree, could there be some validity to Varifrank’s more moderate statement: “I’m not sure I want another ‘Legal God’ on the Supreme Court; I just want someone who can think for themselves who is reasonably adept at the law”? Maybe that’s not so absurd. A similar suggestion, actually, was made more than two years ago by the left-of-center blogger Matthew Yglesias; the original post seems to no longer exist but it is excerpted at Balkinization:
Why should we want brilliant judges? Why not bland mediocrities? It seems to me that the lower federal courts, in particular, positively call for bland mediocrities who will adjudicate cases according to statute and precedent without doing much of anything that’s remotely brilliant. Even at the Supreme Court level why should I want a judge who, like Posner and other brilliant legal theorists, has put forward revolutionary new understandings of the law?
Certainly I wouldn’t want stupid judges, but you can be a lot less brilliant than Judge Posner before you become stupid. I think a nice, ordinarily smart guy who got good grades in college and law school but who hasn’t demonstrated much intellectual creativity or daring or cutting brilliance is exactly what we’re looking for. Leave brilliant reconceptualizations to politicians and writers and professors and let the judges just judge away boringly.
Balkinization’s Jack Bakin disagrees; but it seems to me that Yglesias’ argument is, at the very least, not self-evidently ridiculous or wrong. And I do think there is a peculiar kind of snobbery in some of the criticism directed at Miers. At Slate.com, for instance, Emily Bazelon believes that the new nominees comes up woefully short compared not only to the “legal gods” but even to Clarence Thomas and Sandra Day O’Connor, because the latter both had careers in government while Miers “stuck to the more comfortable private sector, becoming president of her 400-lawyer firm” and then president of the Texas Bar Association. Can we really automatically presume that public service requires more intellectual and legal acumen than private legal practice?
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