Theory vs. practical experience

Marvin Olasky
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Posted: Oct 20, 2005 12:05 AM

We now have trench warfare on the Miers nomination between two opposing armies, both conservative.

 In one set of trenches, machine guns blazing away, are National Review, The Wall Street Journal, The Weekly Standard, conservative columnists led by Michelle Malkin, anonymous Judiciary Committee staff members and many constitutional law theorists.

 In the opposite trenches sit evangelical leaders such as Chuck Colson, James Dobson and Jay Sekulow, bloggers led by Hugh Hewitt, White House staff members, law professors Ken Starr and Lino Graglia, and many lawyers in private practice.

 From each side comes an occasional sortie, yet barring sensational developments we should expect little movement until next month's Judiciary Committee hearings. Meanwhile, liberals are smiling as conservatives attack each other.

 Here are two key questions in the dispute: Should a Supreme Court justice be a constitutional law theorist, or is practical experience as a lawyer equally important? Since the conservative goal is to reduce Supreme Court imperialism, is the most trustworthy person for a life appointment someone who has written in favor of judicial humility or someone whose humility President Bush and others have observed firsthand over the years?

 Another key question involves religion. Some say any questions about a nominee's religion create a "religious test" for office, which is forbidden by a clause in Article VI of the Constitution. (The Founders included that clause to forbid an equivalent of the British practice of requiring all monarchs to receive Anglican communion.)

 Since justices taking office do swear or affirm that they will faithfully perform their duties "so help me God," it seems appropriate to ask nominees whether their beliefs will help or hinder them in fulfilling that oath. (Biblical religion certainly helps by teaching believers to side with neither rich nor poor, to pay no heed to flattery and to obey authority -- in this case the Constitution -- placed over us.)

 Here's where I stand: As a professor, I've learned to be skeptical about theorists and to value practical experience. I don't know Harriet Miers, but I've heard very positive things about her from trustworthy people. Her character seems exemplary, and I'm not worried that her degrees are "only" from SMU. I've studied and taught at Yale and Princeton, so I'm unimpressed by ivy and concerned more with arrogance: Intelligence without humility is a big part of the Supreme Court's problem.

 I'm still open to counter-evidence concerning Miers. The tidbits she wrote while heading the Texas Bar are unimpressive, but newsletter material of that sort is almost always fluffy. I'd like to see more of her writing. I read her deposition while she served on the Dallas City Council and didn't see any creeping liberalism there, but I'll intently watch the judiciary committee hearings.

 Her pro-life record is good, and in 1989 (when running for the city council), she said she favored a Human Life Amendment to the U.S. Constitution. But no pre-appointment record guarantees Supreme Court votes -- and conservatives are making the same mistake as liberals if our primary question about a justice is, will she vote our way?

 I've asked anyone with negative impressions of her to come forward and either speak on the record or provide evidence to substantiate concerns. The magazine I edit, World, is stricter on that accord than some other publications are. For example, we tell our reporters not to give interviewees off-the-record status merely because they ask for it and proffer gossip. So far, we have received no negatives admissible in the magazine's pages.

 Let's reason together about this nomination, instead of calling each other names. It's not surprising to see bitterness emerge, since great expectations concerning Anthony Kennedy and David Souter quickly were dashed. But let's hope that conservatives will come out of the trenches by Thanksgiving and be thankful that we have Republican nominees to discuss. The alternative is the beginning of a long war among GOP factions that will decimate all of them and give Democrats the nomination power.