A Chequer-Board of Nights and Days

I was informed earlier this week that George Will was planning a column dedicated to annihilating the Harriet Miers nomination. I see his column did not fall below expectations:

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.

Quite annihilatory indeed. And I loved this:

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.

I remain dedicated to giving Miers a chance in front of the Senate Judiciary Committee. But she has an extremely high bar to overcome. And I don't think she can overcome it.