Some defenders of Harriet Miers--above all, the indefatigable Hugh Hewitt--argue that, in effect, constitutional lawyering is not all that difficult, so that her apparent or alleged shortcomings in this regard are not sufficient to disqualify her. On this matter, Im with Richard Brookhiser: in a different age, one not so shot through with highfalutin theory, sound and extensive legal learning, an inexhaustible capacity for hard work, humility, and common sense (along, perhaps, with a good or equitable heart)--all of which Harriet Miers arguably has--might be sufficient qualifications for being a Supreme Court Justice. But a return to the primacy of these qualities, however desirable it is, cannot depend simply upon the assertion of their primacy. Bad, or over-clever, theory requires a theoretical antidote; otherwise, the possessors of sober prudence and common sense might always be susceptible to the clever sophists in robes and suits.
This has been true since Aristotle wrote the Ethics and Politics and remains true to this day.
Heres an example. Consider Ronald Dworkin who here cleverly justifies creative theorizing about the spirit and intention of the Constitution and here offers an example of how that theorizing would operate in the "constitutional" relationship between religion and politics:
He said there are two models America can follow: religious tolerant and secular tolerant. A religious tolerant community is committed to the principle of religion but respects people who choose not to practice a religion. A secular tolerant community considers itself neutral about religion but tolerant of people’s freedom to practice any religion they choose.
A religious tolerant community treats religion as something special, and sees no reason to extend the freedom of religion to other freedoms, for example gay marriage; in fact, [it] encourages prohibitions on other freedoms based on religious concerns. The secular tolerant community does not treat religion as something special; it treats the freedom of religion as a general freedom, as a general right to other freedoms.
While the Constitution may contain some "abstract" principles that require more elaboration than the words themselves offer--hence the move from "textualism" to some version of "originalism," which provides some understanding of what those who approved the Constitution thought they were signing onto--Dworkins understanding of this fact licenses all manner of interpetive creativity. Indeed, the demand for "theory" is the only thing that purportedly limits the bare assertion of political will. In the instance cited above, the problem with Dworkins theory is that neither alternative is self-evidently rooted in the text and history of the Constitution. And his preferred theory (secular toleration) poses an obvious textual problem, inasmuch as religious freedom is singled out int he First Amendment.
Now, I suppose that a dogged mistrust of all manner of cleverness might for a time be proof against impressive theoretical and rhetorical edifaces. But in order to avoid being understood merely as an act of political will, rather than an exercise of modest and humble judgment, it needs to be able to defend itself in the court of public and legal opinion. It needs theory.
Im confident that Roberts, Scalia, and Thomas have the theoretical chops to defend humble and modest judicial common sense. And there are any number of other potential nominees (McConnell and Brown come most readily to mind) who also have those chops. Does Miers?