Friday, July 15, 2005

Make me a match

David Brooks' column yesterday makes a modest request for O'Connor's replacement: "Mr. Bush, Pick a Genius". He disparages calls for a "diversity" selection and other criteria like personal loyalty or political convenience and champions Michael McConnell, a favorite of the soft-spoken brainy conservative clique and law professoriate.

As so many times before, I wonder how Brooks keeps his job given the weak, threadbare material he offers as columns.

On its face, this column suffers from leaving untapped the obvious reference to the "Matchmaker" song from "Fiddler on the Roof." "Make him a scholar," Brooks could implore, "a philosophical powerhouse." Bush's appointment of Alberto Gonzalez would be the equivalent to his socially conservative base of Tzeitel's answer: "(Y)ou're a girl from a poor family / So whatever Yenta brings, you'll take."

Having the right positions is important as well, which (literally) goes without saying. I doubt Brooks would think Larry Tribe or Stephen Reinhardt a good selection, regardless of their intellectual force or accomplishments.

As usual, persuasion by anecdote ends up conveniently excluding a lot of important details. The high school story he recounts, for instance, is based on Settle v Dickson County School and neglects to mention that the student didn't even raise a free exercise or establishment claim in her suit and failed to follow the instructions of the assignment in several regards. Under ordinary circumstances, failure to follow the instructions of an assignment merits a bad grade, but if the student writes about Jesus Christ this is all supposed to be ignored.

This and the other example come from McConnell's 1995 testimony, so Brooks' mischaracterization of the case derives from McConnell's. What that point obscures, however, is Brooks' unsupported (and dubious) claim that McConnell's advocacy of neutrality has had any effect on the development of the law absent the presence of other advocates on the Court already. McConnell does put a reasonable face on many of the favorite positions of contemporary legal conservatism, but that shouldn't obscure that an ideological pick is an ideological pick.

I'm putting aside the overall poverty of the neutralist position, which asks for parity between "secular" and "religious" viewpoints in the public sphere without ever defining a secular viewpoint. OK, except for that snipe.

I hate to pick on Brooks, since columnists produce a lot of weak product all the time, but the thoughtlessness of his pieces, calculated to appear as reasonable and worthy of respect as possible, just irks me. It's a fault.


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