Since the initial backlash to the announcement that the distinctly undistinguished Harriet Miers was the president's pick for the Supreme Court, I'd been waiting for the populist, anti-intellectual conservative counternarrative to pop up, and lo and behold, it's emerged full force over the last 24 hours.
I first spotted it over at Volokh Conspiracy yesterday morning in a missive from attorney Reginald Brown, who writes:
[George Will] suggests Miers shouldn't be approved because she hasn't shown a "talent" for "constitutional reasoning" honed through years of "intense interest" and practice. Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution's text, structure and history and who call balls and strikes[….]
Will's final argument is that Miers is an affirmative action quota pick. Underlying this theme is a subtle snobbery that conservatives should dismiss out of hand. One need not go to Harvard or Yale Law or be a member of the right Inn of Court to serve with distinction. Miers' career suggests she is plenty smart and obviously hard working.
Now, as an NYU alum in an Ivy-choked city, I've as little incentive as anyone to lend support to an exaggerated emphasis on pedigree. But there's a weird tension between conservatives' meritocratic tendencies—their just annoyance at the gold-stars-for-everyone-aren't-we-all-special mindset that elevates self-esteem over achievement—and this kind of "What, you think yer better'n me?" that takes umbrage at the suggestion that making law review at Harvard might indicate a higher level of qualification than doing the same at Southern Methodist.
Obviously, though, nobody thinks where Harriet Miers or John Roberts picked up their JDs is remotely as important as what they've been up to since—this law school business is just being used as an emotionally resonant synecdoche for two very different levels of career achievement well beyond law school. We can call the idea that we needn't focus on the kinds of credentials conservatives gushed up when Roberts' resume was on the table the Hruska argument: Mediocrities deserve a shot at serving on the highest court in the land too.
There is a certain logic to this, from a libertarian or conservative perspective: We like to think that the Constitution is intelligible to ordinary people, and if intellectual candlepower is mainly going to be used to find some tortuous justification for regarding it as a public use when the state gives Pfizer your house, so much the better for dumb literalism. On the other hand, to the extent that this argument is rooted in some sort of salt-of-the-earth argument about being in touch with the real-world consequences of law, of sympathizing with the property owner in that situation, that seems to describe precisely how we don't want judges deciding cases: It reeks of the approach conservatives justly mocked when Sen. Diane Feinstein (D-Calif.) kept insisting on knowing how John Roberts felt as a person about various issues.
Moreover, much as cases like Kelo might make us wish for judges more inclined to stick to a straightforward reading of the Constitution's text and eyeball the big picture rather than getting mired in the details of precedent, the Court is typically dealing with genuinely hard cases—cases where, for example, differenty appelate courts (presumably staffed by relatively qualified people themselves) have been come to different conclusions about what the Constituion or rules of statutory construction require. Navigating between the Establishment Clause Scylla and the Free Exercise Clause Charybdis is a tricky endeavor, and for all the flak it catches, the three-pronged Lemon Test is as good a rubric as I've seen for doing that. If the argument against brainy judges is that they come up with stuff like that, well, I can't count it as that big a strike.
Perhaps more important than any of that, though, is the idea of legitimacy. The court has no armies: Its power as a check on legislative authority is utterly dependent on general respect for its rulings to prevent executives from saying, Andrew Jackson style, "they have made their decision, now let them enforce it." Presidents surely have ample discretion in their appointements, but that vital perception of legitimacy is dealt a serious blow if it becomes widely assumed that the court is no more than a collection of minimally-qualified stooges selected for their expected obsequiousness. If the only filter on nominees is a willingness to let the president lock people up by fiat, how can we expect people to regard Supreme Court rulings as anything more than a cheap rubber stamp on executive whims?