Supreme Court Judges Should be Elites

Reading the NRO Corner (as well as Hugh Hewitt and others – actually almost everyone in the Conservative blogosphere), I was a little taken aback by the discussion of ‘elites’ and how to recogniz e them. This is part of the ongoing dialog/tribe regarding Harriet Miers. First, I was puzzled by the notion that elite status is self defined – as in you can tell someone is an elite if they drink bottled water or drive a Volvo (with Kerry/Edwards or, even better, Gore/Lieberman bumper stickers) or read the Nation. As one of the people in the discussion noted, this is a way of increasing the probability of correctly identifying a liberal (an idea with which I agree), but, to me, it is an utterly useless way to find a member of any elite – it is a much better way of finding a part time check out person at a local coffee shop/book store.

Part of this seems to be an admission (perhaps grudging) that we on the Right have accepted that we are not in the elite and our battle is not with flesh and blood but with powers and principalities (the New York Times); or to use to words of a respected public philosopher ‘the people versus the powerful’.

There may be some utility in defining elites to mean entrenched interests and persons with power. But it is not a good definition of an elite in my view. Rather, we should use elite in the sense that we generally think it ought to be used and which some on the Right consider to be one outcome of a properly ordered society – an elite is a person at the upper end of a meritocracy in which ability, energy and accomplishment bring recognition and success. This is a value neutral definition in that there can be elite criminals, pornographers and left wing writers as well as philosophers, historians, artists (performance and otherwise) and right wing writers or even, just writers per se. Obviously, I would not place the various elites as equally worthy of consideration, but that is a value judgment and I am not afraid of those. In any event, an elite ought to be one who demonstrates ‘excellence’ - arête in the classical Greek sense. Moreover, this is not a question of where someone is from – academically or financially or culturally; but what they have done in life. It is for the Daniel Patrick Moynihans of our nation. I might add that Andrew Fastow – a true elite in the world of advanced financial chicanery – went to a very modest school as did an other acknowledged elite – Jonah Goldberg – alumnus of Grenier (?) Collge. I am sure many of those we legitimately call elites – people of true attainment came from modest or humble backgrounds and went to other than Ivy League schools; while the list of failures who have the advantages of wealth and privilege is legion – the whole Kennedy clan is certainly an example of the capacity of wealth and privilege to produce mediocrities in terms of substantive achievement.

So, elites are really not hard to find and they occur anywhere on the political dial. Buckley, Krauthammer, Robert Samuelson, Will, Goldberg, Blankley, Malkin, Reynolds, the Powerline people, JPod, Kristol, Himmelfarb, Barone, and many others all should be called elites – demonstrating the arête of the Right. And it is proper that they should be the first considered to speak for us – as they are. I am on the Right and am a writer of a blog (I use Captain Hook to track my hits on his fingers). I am not read nor has anyone asked me to speak for the Right. I would love to do so, but I have not yet, and may never (smart money) demonstrate the excellence that would make me a suitable spokesperson or perhaps just the sort of spokesperson the Left would want – a sort of cut rate Jerry Falwell.

What does the preceding have to do with Harriet Miers? Well, it seems to me that anyone appointed to the Supreme Court – like anything that carries with it both great responsibility and lifetime tenure, should be an elite – a person of demonstrated excellence in the field to which that person is appointed. It is the idea of tenure that makes elitism so important. We can rid ourselves of poseurs and pretty boys (persons) in electoral office if we have a mind to every two to four years. It would be nice if our elected officials demonstrated excellence (which, in my view, Bush does – he has a form of moral arête that is his most striking feature) but should they fall below the standards acceptable to the American electorate – in some cases a long perhaps bottomless fall – they can be dispensed with. Their fitness for the job is manifested in the job and should they fail, they can be fired.

Not so the Supreme Court. The job is intellectually demanding and is not (despite perhaps some people’s wishes) the sort of thing that would permit just picking up the document and trying to apply ‘plain hobbit sense’ to it. It has a history and a body of scholarship and decisions that cannot be ignored. One does not have to agree with something to know one cannot ignore it. For instance, I am still puzzled how the 2^nd Amendment’s clear linkage of a militia and the right to bear arms leads to my right to have a 12 gauge under the bed. I am glad that it did, but the path that decoupled the militia idea and the right to bear arms for reasons completely unrelated to militia service is not self evident. Nor is the pernicious evolution of the establishment clause one that ‘plain sense’ can unravel.

Thus, the supremely important business of protecting our most basic rights and properly adapting our fundamental law to a rapidly changing world is not one that seems to a proper place for just good lawyers or decent people or even ‘evangelical Christians’ (note: I am one) but for people of demonstrated excellence in a demanding and vitally important area in which a mistake cannot be retrieved or only with difficulty and enormous cost (30 million babies and counting)

Moreover, the requirement for an elite in the job is not just so that they might render intellectually sound and defensible decisions. Rather you need constitutional elites on the court because they do more than just vote – they define, refine, revise or defend particular philosophical ideas that shape how the law is seen. Their words have lasting value and form the basis on which a body of constitutional theory can either be advanced, protected or even restored. Because of the intellectual importance of this task of articulating a view of the rule of law and the proper role of various branches of government and of preserving the fundamental meanings and protections of the Constitution, it seems to me that only the very best minds who have demonstrated during a lifetime of accomplishment that they have the attributes to equal to the task of not just rendering a proper judgment but articulating persuasively the intellectual and philosophical basis of that decision. Moreover, they have to persuasively demonstrate the dangers that lie in attempting to apply alternative visions of Constitutional interpretation that result from the frenzied dreams of progressive possibility that lie in the belief that the rule of law lies helpless at your feet to do with as you will.

Perhaps the saddest thing in this whole Miers affair is the suggestion that a woman of enormous accomplishment and the highest character and rectitude – a person admirable in every way as a lawyer and a human being – is being portrayed as a mediocrity. Nevertheless, I cannot support her because, while she is clearly among the elite of corporate lawyers and perhaps, of Christian saints, she is not even in the running for consideration in a line of work which she chose not to pursue – conservative constitutional scholarship. To do the work of a conservative on the Supreme Court and to leave the enduring mark and to shift the direction of constitutional thought in America requires a member of a rather small elite - the very best Constitutional thinkers we can find. And Harriet Miers is not among them.