More on Miers

[groovychk]

Senators beginning what ought to be a protracted and exacting
scrutiny of Harriet Miers should be guided by three rules. First, it is not
important that she be confirmed. Second, it might be very important that she not
be. Third, the presumption — perhaps rebuttable but certainly in need of
rebutting — should be that her nomination is not a defensible exercise of
presidential deference to which senatorial discretion is due. It is not
important that she be confirmed because there is no evidence that she is among
the leading lights of American jurisprudence, or that she possesses talents
commensurate with the Supreme Court’s tasks. The president’s ‘‘argument’’ for
her amounts to: Trust me. There is no reason to, for several
reasons.

He has neither the inclination nor the ability to make
sophisticated judgments about competing approaches to construing the
Constitution. Few presidents acquire such abilities in the course of their
prepresidential careers, and this president, particularly, is not disposed to
such reflections.

Furthermore, there is no reason to believe that Miers’ nomination resulted
from the president’s careful consultation with people capable of such judgments.
If 100 such people had been asked to list 100 individuals who have given
evidence of the reflectiveness and excellence requisite in a justice, Miers’
name probably would not have appeared in any of the 10,000 places on those
lists.

In addition, the president has forfeited his right to be trusted
as a custodian of the Constitution. The forfeiture occurred March 27, 2002,
when, in a private act betokening an uneasy conscience, he signed the
McCain-Feingold law expanding government regulation of the timing, quantity and
content of political speech. The day before the 2000 Iowa caucuses
he was asked in advance — to insure a considered response from him — whether
McCain-Feingold’s core purposes are unconstitutional. He unhesitatingly said,
‘‘I agree.’’ Asked if he thought presidents have a duty, pursuant to their oath
to defend the Constitution, to make an independent judgment about the
constitutionality of bills and to veto those he thinks unconstitutional, he
briskly said, ‘‘I do.’’

It is important that Miers not be confirmed unless, in her 61st
year, she suddenly and unexpectedly is found to have hitherto undisclosed
interests and talents pertinent to the court’s role. Otherwise the sound
principle of substantial deference to a president’s choice of judicial nominees
will dissolve into a rationalization for senatorial abdication of the duty to
hold presidents to some standards of seriousness that will prevent them from
reducing the Supreme Court to a private plaything useful for fulfilling whims on
behalf of friends.

The wisdom of presumptive opposition to Miers’ confirmation flows
from the fact that constitutional reasoning is a talent — a skill acquired, as
intellectual skills are, by years of practice sustained by intense interest. It
is not usually acquired in the normal course of even a fine lawyer’s
career. The burden is on Miers to demonstrate such talents, and on
senators to compel such a demonstration or reject the nomination.

Under the rubric of ‘‘diversity’’ — nowadays, the first refuge of
intellectually disreputable impulses — the president announced, surely without
fathoming the implications, his belief in identity politics and its tawdry
corollary, the idea of categorical representation. Identity politics holds that
one’s essential attributes are genetic, biological, ethnic or chromosomal — that
one’s nature and understanding are decisively shaped by race, ethnicity or
gender. Categorical representation holds that the interests of a group can only
be understood, empathized with and represented by a member of that group.

The crowning absurdity of the president’s wallowing in such nonsense is the
obvious assumption that the Supreme Court is, like a legislature, an institution
of representation. This from a president who, introducing
Miers, deplored
judges who ‘‘legislate from the bench.’’ Minutes after the president announced
the nomination of his friend from Texas, another Texas friend, Robert Jordan,
former ambassador to Saudi Arabia, was on Fox News proclaiming what he and, no
doubt, the White House that probably enlisted him for advocacy, considered glad
and relevant tidings: Miers, said Jordan, has been a victim. She has been, he
said contentedly, ‘‘discriminated against’’ because of her gender. Her
victimization was not so severe that it prevented her from becoming the first
female president of a Texas law firm as large as hers, president of the State
Bar of Texas and a senior White House official. Still, playing the victim card
clarified, as much as anything has so far done, her credentials, which are her
chromosomes and their supposedly painful consequences. For this we need a
conservative president?