October 23, 2005
Defending The Indefensible
-- Such is the perfect perversity of the nomination of Harriet
Miers, it discredits, and even degrades, all who toil at justifying
it. Many of their justifications cannot be dignified as arguments.
Of those that can be, some reveal a deficit of constitutional
understanding commensurate with that which it is, unfortunately,
reasonable to impute to Miers. Other arguments betray a gross
misunderstanding of conservatism on the part of persons masquerading
as its defenders.
sensing the poverty of other possibilities, began by cynically
calling her critics sexist snobs who disdain women with less than
Ivy League degrees. Her advocates certainly know that her critics
revere Margaret Thatcher almost as much as they revere the memory
of the president who was educated at Eureka College.
advocates managed, remarkably, to organize injurious testimonials.
Sensible people cringed when one of the former Texas Supreme Court
justices summoned to the White House offered this reason for putting
her on the nation's highest tribunal: ``I can vouch for her ability
to analyze and to strategize.'' Another said: ``When we were on
the lottery commission together, a lot of the problems that we
had there were legal in nature. And she was just very, very insistent
that we always get all the facts together.''
tried the incense defense: Miers is pious. But that is irrelevant
to her aptitude for constitutional reasoning. The crude people
who crudely invoked it probably were sending a crude signal to
conservatives who, the invokers evidently believe, are so crudely
obsessed with abortion that they have an anti-constitutional willingness
to overturn Roe v. Wade with an unreasoned act of judicial
willfulness as raw as the 1973 decision itself.
unseemly eagerness to assure Miers' conservative detractors that
she will reach the ``right'' results, her advocates betray complete
incomprehension of this: Thoughtful conservatives' highest aim
is not to achieve this or that particular outcome concerning this
or that controversy. Rather, their aim for the Supreme Court is
to replace semi-legislative reasoning with genuine constitutional
reasoning about the Constitution's meaning as derived from close
consideration of its text and structure. Such conservatives understand
that how you get to a result is as important as the result. Indeed,
in an important sense, the path the Supreme Court takes to the
result often is the result.
confirmation hearings draw near, her advocates will make an argument
that is always false but that they, especially, must make, considering
the unusual nature of their nominee. The argument is that it is
somehow inappropriate for senators to ask a nominee -- a nominee
for a lifetime position making unappealable decisions of enormous
social impact -- searching questions about specific Supreme Court
decisions and the principles of constitutional law that these
decisions have propelled into America's present, and future.
To that argument,
the obvious and sufficient refutation is: Why, then, have hearings?
What, then, remains of the Senate's constitutional role in consenting
It is not
merely permissible, it is imperative that senators give Miers
ample opportunity to refute skeptics by demonstrating her analytic
powers and jurisprudential inclinations by discussing recent cases
concerning, for example, the scope of federal power under the
commerce clause, the compatibility of the First Amendment with
campaign regulations, and privacy -- including Roe v. Wade.
confirmation be blocked? It is easy to get a senatorial majority
to take a stand in defense of this or that concrete interest,
but it is surpassingly difficult to get a majority anywhere to
rise in defense of mere excellence.
must begin with 22 Democratic votes against her. Surely
no Democrat can retain a shred of self-respect if, having voted
against John Roberts, he or she then declares Miers fit for the
court. All Democrats who so declare will forfeit a right and an
issue -- their right to criticize the administration's cronyism.
with their zest for gender politics, need this reminder: To give
a woman a seat on a crowded bus because she is a woman is gallantry.
To give a woman a seat on the Supreme Court because she is a woman
is a dereliction of senatorial duty. It also is an affront to
mature feminism, which may bridle at gallantry but should recoil
As for Republicans,
any who vote for Miers will thereafter be ineligible to argue
that it is important to elect Republicans because they are conscientious
conservers of the judicial branch's invaluable dignity. Finally,
any Republican senator who supinely acquiesces in President Bush's
reckless abuse of presidential discretion -- or who does not recognize
the Miers nomination as such -- can never be considered presidential
2005, Washington Post Writers Group