Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

14 October 2005

Harriet Miers: Thinking Like Mush

For those of us too busy to do our own original research (which is most of us), New York Times Columnist David Brooks has done a great service. He’s collected samples of Harriet Miers’ writing when she was president of the Texas Bar Association. The results are appalling. Miers’ writing would quickly flunk her out of almost any self-respecting graduate or professional school. Yet she may be headed for the Supreme Court.

Brooks described Miers’ writing as a “relentless march of vapid abstractions.” That description is apt, but charitable. Most professionals would describe her writing more simply as the result of “thinking like mush.”

Thinking like mush does have its uses. Far too many lawyers and public servants do it, for it glosses over disputes and differences. Sometimes mush allows leaders to forge consensus or agreement when none appears possible. All can agree on comforting platitudes that say nothing but evoke a vague, general assent.

The President is a master at thinking and speaking mush. Throughout his public life, he has exploited that skill to attract popular support. Mush hides the hard edges of his intentions and the costs and sacrifice that his policies demand. You’re never quite sure what his vaguely comforting platitudes mean, but they all seem beneficent or at least harmless, whatever your position on the political spectrum. Until recently, his strategy of mouthing mush has been highly successful. The nation slept while Iraq burned.

Yet mush has three disadvantages. First, the consensus it forges is often illusory. Mushy thinking and mushy speaking do not resolve differences; they hide them. When the time comes to act, the mushy “consensus” falls apart. That’s exactly what’s happening in President Bush’s second term. It’s why nearly two-thirds of the American people now think our collective future is spinning out of control. They don’t like how the President has translated his vaguely comforting mushy platitudes into action.

The second disadvantage of thinking like mush appears in action itself. Folks who think mushily seldom act competently. Take Michael Brown, for example. He came on TV a couple of days before Katrina hit New Orleans. After listening to him for just two minutes, I concluded he could not do the job. Why? Because he thought and spoke like mush, just as Harriet Miers writes. Mouthing comforting PR platitudes is not the same skill as getting rescue, food, medicine and shelter quickly and efficiently into the hands of people who need it. The whole nation learned the difference, to its dismay, in Katrina’s aftermath. Now people are beginning to rethink the other comforting platitudes mouthed by the President and Don Rumsfeld.

The third disadvantage of mush is that mush is not clear. This point bears directly on Miers’ work. Some of the greatest legal minds in our nation’s history have insisted that the law be clear enough for ordinary people to understand it. When and if Harriet Miers becomes a justice on the Supreme Court, she will write opinions that will be “the law.” If she writes mush, as she has in the past, no one will know what the law is.

That result will have two consequences. First, the “hot button” issues of our day will not be resolved. They will be pushed down to the lower courts, where they will be decided only temporarily and on a regional basis. Maybe that would be a good thing. Maybe the only way we can reach any semblance of consensus on our “hot button” issues is to resolve them on a regional basis---one rule for San Francisco and New York City, another for Dallas and Dubuque. Then maybe we can get on with the real issues of our time, such as winning the War against Terrorists, averting the next terrorist attack (which could be nuclear), surviving the next flu pandemic, recovering from the exploding spate of natural disasters (some probably caused by global warming) and repairing our dysfunctional educational system so our children can compete with their counterparts in India, Japan, China and the “tigers” of East Asia.

A second consequence of mush in the Supreme Court, however, is not so promising. Mushy law gives the Executive free reign. When the rules are unclear, the advantage goes to the actor, who can do what he pleases and later justify his actions as consistent with mushy rules. Mushy law increases Executive power.

It is here that the Miers’ appointment deserves the hardest look. We know very little about Harriet Miers, but we do know three things. First, she is very close to President Bush. In fact, she thinks him one of the smartest men she ever met. Second, the “public service” part of her career has been almost entirely in the Executive branch. She has had no substantial reported experience in the legislative or judicial branches of government. (Miers did serve for less than two years on the Dallas City Council. In contrast, Justice O'Connor served nearly five years in the Arizona State Senate, attaining the position of majority leader.) Finally, her most recent career, with President Bush, has been an extended exercise in loyalty and secrecy for the benefit of an increasingly imperial presidency. These facts suggest that a Justice Harriet Miers would vote predictably and consistently to confirm and increase the power of the Executive, certainly while President Bush is in office, and probably thereafter as well.

Would that be a good thing? Our deeply divided, disciplineless, self-indulgent and increasingly ignorant and corrupt society is in trouble. In the next few years we can look forward to greater risks of terror, a flu pandemic, natural disasters, inflation and global economic instability. Maybe we need a strong leader to survive, let alone to prosper, through what may lie ahead.

But the Founders of our nation did not create checks and balances for nothing. When Ben Franklin left the Constitutional Convention, reporters asked him what kind of government it had proposed. “A Republic, if you can keep it,” he replied. There is no problem keeping our Republic in times of peace, quiet and prosperity. The crunch comes in times of crisis, like the present and our probable immediate future.

The Supreme Court has no army, no independent source of funds. In the end, the only bulwark of its power and our liberties is the strength of the words that it writes. In times of crises, those words must draw clear lines between Executive action that secures our future and action that subverts our liberties and our Republic. If anyone thinks Harriet Miers is up to that job, let her read the quotes from Miers’ writing in David Brooks’ column.

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