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Can This Nomination Be
Justified?
The Washington Post
By George F. Will
Wednesday, October 5, 2005; Page A23
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.
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.
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 -- to
ensure a considered response from him, he had been told in advance that he
would be asked -- 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'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.
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 be
understood, empathized with and represented only 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, Jordan said, 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?
georgewill@washpost.com
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