Persuasive tools and Judicial Nominations

The recurring argument for the nomination of Judge Roberts was his exemplary legal background. This is primarily a logos based argument of this form: Judge Roberts has performed to a high standard in the past, and therefore can be expected to perform to a high standard in the future. There is also an ethos component of that argument in that his qualifications build him up as more of an authority than the senators who might be judging him, and where they differ on opinions, Robert's views have more weight.

The arguments for Miers on the other hand, primarily target pathos. Miers is a nice person. Does that tug at your heartstrings? Pathos. Miers is a good evangelical. Since most people equate religion with benevolence, this is probably an appeal to ethos. The flip argument: "Democrats are opposed to an evangelical on the bench" is definitely an appeal to pathos. The painting of conservative opposition as mysoginists: definitely pathos. Accusations that Miers is a "crony": also pathos. Accusations that she is insuficently trained: logos.

And this brings us to the crux of the intellectual/populist conservative disagreement. The intellectuals aren't going to be swayed by anything other than logos, and right now logos is pointing to other, better candidates. But that isn't going to be the determining factor in the end, because the bulk of the country doesn't require much logos.

That is not to say the intellectual argument is hopeless. Attacks on Miers qualifications (as well as the cronyism charge) also impair the value of any ethos based arguments she might have while going toe-to-toe with the Senators. When Roberts said he didn't feel it was appropriate to answer a question he was making an ethos argument (I, as a knowlegeable judge, feel it would be irresponsible to answer that question). Miers will try to do the same thing, and everything rests on whether or not she will be able to pull it off.