Last month, I posted some thoughts on The Matter of Experts. With the President's nomination of Harriet Miers to the Supreme Court, the subject has now become a matter of national debate. Last week, in the Washington Post, George Will wrote a column in which he declared that "constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career."
Says who? The United States Constitution, as I have had cause recently to point out, happens to be written in plain English. Its authors, for instance, would never have been so sloppy as to call something a talent in one phrase and a skill in the next.
Having spent more than 40 years reviewing books (to say nothing of editing them and much else besides), I think I know something about texts. One thing I know is that you should hold off on trying to figure out what something means until you're pretty certain you know what it says. In that idiosyncratic masterpiece, The Memoirs of a Superfluous Man, Albert Jay Nock records an anecdote that has some bearing on this:
The ex-president of one of our colleges tells me that for a dozen years he carried on experiments in the value of literacy, using freshman as his guinea-pigs; that is to say, he experimented on persons who were not only literate, but who had gone so far as to pass their entrance-examinations. Selecting a paragraph of very simple but non-sensational prose, he asked his students, taking them one by one, to read it carefully; then to read it carefully again; then to read it aloud to him; then to write down the gist of it in their own words. Hardly any one could do it; hardly any one was able to bring anything like an adequate power of reflective thought to bear upon the substance of a simple paragraph. In other words, they could not read.
"While the ability to read must presuppose literacy," Nock observes, "literacy is no guarantee whatever of the ability to read." When you have Harry Blackmun writing about penumbras and the shadows thereof you have a literate person either unable or unwilling to read what the text under consideration says -- or does not say. Only an expert, a man with years of experience on the bench, could come to such a pass.
As it happens, the document that Mr. Will thinks only those with the requisite talent or skill (whichever) can comprehend serves up only two qualifications for Supreme Court justice: nomination by the President and confirmation by the Senate. Now Mr. Will is not the only conservative -- and not the only advocate of "original intent" interpretation of the Constitution -- who has objected to Miers's nomination. What exactly do they think the original intent of the framers was in this instance? Of course, there were no law schools then, so they obviously wouldn't have thought that the best people for the court would be law professors. Maybe they thought that honest people who could read would be able to figure out what a given statute meant and decide a case that way.
I should think that the court would benefit greatly from the perspective of a highly successful practicing lawyer (see Beldar for excellent and comprehensive arguments and evidence in support of this viewpoint). Moreover, confining court membership to scholars or jurists unnecessarily -- and counterproductively -- narrows the focus on the cases before the court. It is also unwarranted by the Constitution itself. If membership on the court ought to be restricted to law professors and other jurists, then let's get to work drafting a Constitutional amendment to that effect.