Comments Elsewhere

“So I see three options when discussing appointments by the other team: a) brilliance is always more important than policy-moderation. b) Policy-moderation is always more important than brilliance c) It depends on the position.”

Can I freely substitute “correct positions on questions of policy” for “policy-moderation,” if I don’t think that the correct positions are usually “moderate” ones? If not, then I have to think that all of (a)-(c) seem to me to miss the point; after all, why should anyone care about moderation for moderation’s sake, and if there is no reason to care about it, then why should we worry about what sort of trade-offs to make between it and legal brilliance? If, on the other hand, I can substitute, then I’ll bite: the answer seems obviously to be either B or C. I’m inclined to think C, but for the moment I don’t intend to try to settle the issue between the universal (B) and the existential (C) claims.

“For C, I’m kinda curious what people think what positions we should value competence or moderation more?”

Here’s a couple of plausible candidates that have, in the past, come before the Court, and where clever men did a lot of harm through some audacious legal reasoning:

1. Slavery (cf. Dred Scott v. Sanford)
2. Genocide and ethnic cleansing (cf. Cherokee Nation v. Georgia et al.)

If you believe that abortion is murder or some other form of gross violation of human rights, you should probably add abortion and Roe v. Wade to the list. I don’t, so I won’t; but since I do regard banning abortion as a form of slavery, I would put any hypothetical reversal of Roe v. Wade, no matter how brilliantly argued, under (1).

(You could probably add torture and extra-judicial killing onto the list of issues where having the right position is more important for a judge than a brilliant legal argument on the topic.)

I think there’s a general principle here: human rights are more important than sharp legal argument, and there are at least some issues on which being on the wrong side of the line just has to be a defeater for being entrusted with any kind of power to enforce your legal reasoning.

In any case, from what I can gather, Miers is neither on the right side of most issues nor possessed of a brilliant legal mind, so what are we arguing about, anyway?