What's indispensable

According to Professor Charles Fried,

What is indispensable is that [Harriet Miers] be able to think lucidly and deeply about legal questions and express her thoughts in clear, pointed, understandable prose.

What does that mean? I suspect it means she should be a law professor. He cites a number of close questions faced by the courts, but never seems to recognize that they were made this difficult in the first place by judges who thought they were more capable of "thinking lucidly and deeply" than those who were elected to make decisions, so much so that the people shouldn't be allowed to weigh in anymore. The people may not be as brilliant as Professor Fried, but they are the ones who have to live in the world created by judges. Why shouldn't they be empowered to decide issues that impinge drastically on what kind of world that is?

How's this for clear, pointed, understandable prose: "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." I'll go with Orrin Kerr and Learned Hand, who made this point:

What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes.*

How much writing is enough, and who decides what is "lucidly and deeply thought?" I Googled "French fry case John Roberts". It returned 615,000 hits. Most of them took Justice Roberts to task (this column is typical.) for not intervening to strike down the stupid zero tolerance rule forbidding eating on the Washington subway. He wrote simply that "The question before us . . . is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not . . .."

Of course, he backed it up with cases and commented on the arguments against his ruling, but there seems to have been a firestorm of criticism calling him hard-hearted, cruel, etc. Where's the lucidity and depth of thought? I'd say that it was in the simplicity of his opinion. He followed a simple and basic rule. He considered the cases and arguments against the ruling, and disposed of them one after another. All in all it took 19 pages in the type and margins used by the courts, about 5 pages of in the type and pagination normal for a law book, absolutely terse for most federal courts these days.

I suppose conservative critics of Miers want a judge who will not only rule correctly but will dispose of all the arguments that have led earlier courts astray and smite them down with an exquisitely honed sword of rhetoric.

Not I. I just want someone who understands the principle of judicial restraint and apply it liberally. I already understand what's wrong with those cases where judicial sympathy and self-righteousness has created bad law. I'm not worried about her being another Souter. I think that her views on the role of the judiciary are pretty well shown. What hasn't been is her rhetorical skill. Why that is desirable is plain, but why it's indispensable is not.

* Read the whole thing, and note that, only 60 years ago, a great judge could openly speak of Christian values without being hounded out of office.