To serve in Congress or even the presidency, there is no requirement for scholarship and brilliance. For good reason. It is not needed. It can even be a hindrance, as we learned from our experience with Woodrow Wilson, the most intellectually accomplished president of the 20th century and also the worst.
But constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship. Otherwise it is nothing but raw politics. And is it not the conservative complaint that liberals have abused the courts by having them exercise raw super-legislative power, the most egregious example of which is the court's most intellectually bankrupt ruling, Roe v. Wade?
Miers will surely shine in her judiciary committee hearings, but that is because expectations have been set so low. If she can give a fairly good facsimile of John Roberts' testimony, she'll be considered a surprisingly good witness. But what does she bring to the bench?
This, say her advocates: We are now at war and therefore the great issue of our time is the Article II powers of the president to wage war. For four years, Miers has been immersed in war-and-peace decisions and therefore will have a deep familiarity with the tough constitutional issues regarding detention, prisoner treatment and war powers.
Perhaps. We have no idea what her role in these decisions was. But to the extent that there was any role, it becomes a liability. For years -- crucial years in the war on terror -- she will have to recuse herself from judging the constitutionality of these decisions because she will have been a party to having made them in the first place. The Supreme Court will be left with an absent chair on precisely the laws-of-war issues on which she is supposed to bring so much.
By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to George Bush, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a man whose presidency is marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.