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 discretion to which senatorial deference is due.Who seriously believes the evidence exists to make this demonstration? If Will is right up to this point and this is the test, the nomination should be doomed.
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 pre-presidential careers, and this president particularly is not disposed to such reflections.
Furthermore, there is no reason to believe that Miers's 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's name probably would not have appeared in any of the 10,000 places on those lists....
The wisdom of presumptive opposition to Miers's 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.
You know, I really felt my willingness to trust the President's choice evaporating as I wrote this post earlier this morning. Someone in the comments to that post wrote:
How many sixty year old women have better credentials for the Supreme Court than Harriet Miers?I responded:
Law Review Articles Editor while one of the few women in law school.
Clerkship in the Federal District Court as a prelude to becoming a trial lawyer.
Became Managing Partner of a premier Texas Law Firm the hard way (she earned it).
President of the state bar of the second largest state in the country.
General Counsel to the President of the United States.
Look at Beldar's several posts if you think I exaggerate.
This attorney has practiced law in more of its many manifestations than all but a few attorneys in the United States.
She not only broke but shattered the glass ceiling with performance at all levels of the practice of law.
Why is that not truly stellar, considering that in 1970, when she entered the legal profession at age 25, fewer that five percent of practicing lawyers were women?
"How many sixty year old women have better credentials for the Supreme Court than Harriet Miers?" But 60 was considered too old to be a candidate until just now and apparently still is for the males. And what male candidate who is considered Supreme Court material takes a mid-career job doing something like the Texas Lottery Commission? Can you picture Roberts doing something like that even early in his career? Even if she was in the limited set of women who were law grads in 1970, huge numbers of women flowed into the profession very shortly later. Go to women in the 50 to 55 age range, the same target range used for the male candidates, at there are plenty of individuals with superior credentials. My problem isn't with her lack of judicial experience, it's that there are no elite credentials of the sort that say this is a superior intellect -- a mind that should decide the most important issues for us over a period of decades! If you think about it that way, her nomination is an absurd imposition on us by the President.