K-Lo's fuzzy logic on Miers

I've never met nor spoken with National Review Online editor Kathryn Jean Lopez — K-Lo — and I'm sure she must have the highest ambient email noise of everyone at NRO, which in turn makes it awfully hard to make even her constructive acquaintance that way. I admire her wit (not infrequently self-depricating), her values, and her output. But one of the downsides of blogging generally, and in particular writing a lot of short posts that may not have been the product of careful reflection (even by blogospheric standares of "carefulness") is that one's more inclined to stray off into logical errors.

I think K-Lo fell victim to that a couple of times today with respect to the Miers nomination, on which she's expressed strong and almost uniformly very negative (if sometimes snarky-funny) opinions. I reprint here (slightly revised) my emails to her, which have not yet drawn any response, nor do I think them particularly likely to do so (see above, re ambient email noise):

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Changing one's mind vs. changing the law

K-Lo, you wrote:

President Bush has said that he knows Harriet Miers "well enough to be able to say that she's not going to change; that 20 years from now she'll be the same person with the same philosophy that she has today." But when considering the case presumably more personal and important to her than any individual case before the Supreme Court will be — whether to serve on the Court — she changed her mind over the course of months.

Surely, however, even intelligent non-lawyers can readily understand the difference between the sort of "case" involving one's personal goals or preferences, and the sort of "case" referenced in Article III of the Constitution.

If I am asked about my interest in a new job that will require me to go through an extremely unpleasant and intrusive application process (ending my personal privacy, subjecting me to ridicule from the ill-informed and the spiteful), I might quite reasonably conclude that the benefits anticipated don't justify the costs — a personal balancing that leads me to turn the job down. However, if someone whom I trust and admire on a personal basis, as part of his own very important job, asks me to reassess the benefits of my taking the job — and in particular, to re-weigh the public good to be served, as that trusted person views the public good — then I might certainly come to a different conclusion. As it happens, the President hasn't asked me, nor told me he thinks the Nation would be better off with me on the Supreme Court. But he has asked that of, and told that to, Harriet Miers. Are you suggesting that a direct request from, and the considered opinion of, the President of the United States are entitled to no weight?

The process of making even the most profound personal decisions is intrinsically different than the process of judging a "case" or "controversy" within the meaning of Article III of the Constitution.  Equating these two processes is very misleading. And many of us — I presume you, too — think that the future of our Nation, and the integrity of its Constitution and rule of law, are indeed very much more important than our individual lives and fortunes.

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Ethics: Not sufficient, but necessary

K-Lo, you wrote:

And do you really expect people to be convinced she's a SCOTUS fit because: "Throughout her career in local, state and Federal governments, Harriet Miers has held herself to the highest ethical standards"?

But you surely understand the difference between the necessary and the sufficient. Do not fault the White House for assuring the public that Ms. Miers is and has always been ethical. Making that assurance is particularly appropriate when a nominee has been accused of being a "crony," as this one has, and by you. "Crony" has connotations that include corruption. That this nominee is not corrupt — that she's no Abe Fortas — is a point worth making, and perhaps a qualification that you would agree ought to be necessary for any Supreme Court Justice.

Nor suggest, please, that by making that assurance, the White House has argued that being ethical is sufficient all by itself. If it were, it would have been a much shorter set of talking points.