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Eric Posner on SCOTUS

Eric Posner has an interesting post on “the popular wisdom about the role of the [supreme] court in American politics”

… the court’s legal function is minimal, perhaps zero; it is really a council of elders who evaluate legislation on policy grounds, or a third house of Congress that retains a right to veto legislation enacted by the other two. It is more important for justices to be able to horse-trade than to engage in legal reasoning (one’s experience as a judge is “inconsequential"). The Warren Court’s greatness is due to the political skills of its leader, an ex-governor rather than a person distinguished by his legal talents.

Not exactly what I think the Founders had in mind, but perhaps a fair characterization of where we find ourselves.

Unless he’s being facetious, however, Posner then goes right smack off the rails:

If so, it makes sense to evaluate potential appointees on purely political grounds—what are their policy preferences, how strong are their political skills, do they reflect the interests of an important constituency? If the choice for Obama is obvious, then so is the choice for McCain.  Although President Bush does not have high approval ratings at the moment, and his decision to invade Iraq was questionable, he undeniably has significant political skills, and his policy preferences are well-known and appealing to the Republican base. True, Bush has no legal experience, but, if Miller is right, this is at best a minor consideration, and there is no rule that Supreme Court justices must be lawyers, anyway.

It almost takes one breath away.

Bush has demonstrated very little political savvy in his tenure as President and, in particular, has given no evidence of being able to manage small groups of people with very large egos. His mismanagement of the former GOP majorities in Congress is now legendary, to take but the most prominent example. Second, on domestic issues, Bush’s policy preferences are either obscure or unappealing to the base. Nobody in the base is jumping up and down for joy over No Child Left Behind or the prescription drug entitlement, to cite but two prominent examples.