Oh the Shame of It All

I have a friend, J.J., who is by his own admission a pretty good basketball player. A few years ago he was watching a pickup game in Venice, Calif., that featured players who were vastly better than he.

“These guys were so good that it was hard to believe they weren’t getting paid to play basketball somewhere,” he says.

Then an interesting thing happened: Toby Bailey joined the game. Hardcore basketball fans will recognize the name, as Bailey was the freshman star of the UCLA team that won the national championship ten years ago. That turned out to be the highlight of Bailey’s career, as he failed to make it in the NBA, and ended up going to Greece to play minor league professional basketball.

“Bailey,” says J.J., “just destroyed everyone on that court. He was throwing down reverse slam dunks, firing perfect no-look passes, and blocking shots left and right. He was so much better than everyone else that it was almost a joke.”

As the arguments about the nomination of Harriet Miers to the Supreme Court have grown more fractious, I’ve been thinking about Toby Bailey. Is Bailey a “good” basketball player? The answer is, it depends. If the point of comparison is, say, my friend J.J., Bailey is a fantastic player. If Bailey and J.J. played a game of one on one, Bailey would probably score 97 percent of the points. If the relevant comparison is the average NBA player then no, Bailey isn’t a good player, because he isn’t good enough to stay with an NBA team, let alone start or star.

Is Harriet Miers a “good” Supreme Court nominee? There are about one million lawyers in the United States, and there’s no question that, in comparison to this group, she’s had a very successful career. But is she one of the leading lawyers of her generation _ the legal equivalent of an NBA player? Only one person appears to believe she is: President Bush.

At this point, the real question is whether she’s more like Toby Bailey or my friend J.J. (who, I repeat, is a pretty good basketball player). In terms of some of the most important qualifications for being a Supreme Court justice _ knowing constitutional law well and having some coherent notion of what judges ought to do with it _ what evidence there is suggests the latter.

One sign of how weak Miers’ qualifications are is that her supporters are putting forth all of the most hackneyed affirmative action arguments with a breathtaking chutzpah no Democratic administration would dare match. For example, when it’s said that Miers’ record provides little evidence that she should be a Justice, they respond by pointing out that her record doesn’t prove definitively that she shouldn’t _ and that because she meets this purely negative standard she is therefore “qualified.” Similarly, they’re insisting that complaints about the nomination reflect “elitism” (imagine someone arguing that limiting NBA roster spots to the world’s best basketball players would be elitist).

The most shameless argument of all is that Miers’ qualifications don’t really matter, as long as she votes the “right” way — meaning in a way that produces good political results from the perspective of those making this argument. These are the same people who have complained endlessly about result-oriented judging. A more sophisticated argument is that she will have the right judicial philosophy, and that by a delightful coincidence the right judicial philosophy almost always produces what her supporters consider good political results (of course this is exactly the same argument that defenders of liberal judicial activism have always made).

As Mae West once observed in a slightly different context, in the end goodness has nothing to do with it.

(Paul Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)