George Will's Sunday column on the Miers nomination — hyped as a disapproval of Miers in the manner that Sitting Bull disapproved of Custer — is, of course, out a day early. Though Will scores a number of points, the column won't damage Miers as much as it will damage the debate on her. Though his points are compelling, they are stated before conclusions that are, in turn, petulant, condescending and threatening. And the solution Will proposes — though theoretically sound — is stated in terms that can be used by the Dems to destroy one of the most important limits on the confirmation process.
Will writes, "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." So far, so very good.
But Will, and other Miers critics, seem willing to give up too much to sink her. We won, in the Roberts confirmation, the ability to ensure future justices against the political pressure on specific issues that senators eagerly impose to mandate their own litmus tests. Will's solution is stated in sufficiently loose terms to knock down that barrier and enable Biden and Co. to drive through at high speed:
"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.(emphasis added)
Miers can, and should, be opposed on many grounds, not the least of which is her unproven and almost certainly malleable judicial philosophy. Thus her judicial philosophy — really her constitutional understanding — must be tested in the hearings without sacrificing the barrier to prejudged positions in the process. To demand her positions on "principles of constitutional law that these decisions have propelled into America's present and future" is to demand answers to questions such as: Do you agree with the result in Roe v. Wade?
Miers can — and must — be tested, but not that way. It can be done by pressing her firmly and repeatedly on her understanding of the reasoning in already-decided cases. If, as I expect, she fails to demonstrate a constitutional scholar's understanding of the reasoning of significant cases, that is reason enough to vote her nomination down. To demonstrate understanding of the reasoning one need not agree or disagree with the result. And that is where George Will should have stopped. But he didn't.
We, as conservatives, must not allow the Miers nomination to destroy the immunity court nominees must have against political litmus tests. At this point, her advocates and her opponents seem to have sunk to the same ad hominem level. A pox on both their houses.
Miers may yet, unfortunately, be confirmed. The president is adamantly in support, and none of her supporters are backing down. Will's conclusions — that Democrats must oppose Miers or forever surrender their arguments against cronyism, and that conservative Republicans must oppose her or forfeit their right to a presidential nomination — ring hollow. It is no use making threats no one will remember past tomorrow's nightly news.