[Dialogue] George Will: Defending the Indefensible

[Ruth Landmann]

  Personal Message:
  George Will column

  Defending The Indefensible

  By George F. Will

   Such is the perfect perversity of the 
nomination of Harriet Miers that 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.

  Miers's advocates, 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.

  Next, Miers's 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."

  Miers's advocates 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.

  In their unseemly eagerness to assure Miers's 
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 that the Supreme 
Court takes to the result often is the result.

  As Miers's 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 to nominees?

  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 .

  Can Miers's 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.

  Still, Miers 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.

  And Democrats, 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 from condescension.

  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 
material.

  georgewill at washpost.com


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