A Chequer-Board of Nights and Days

Ever since the nomination of Harriet Miers, I have promised myself that no matter how pessimistic and depressed I got over her selection--and that is quite pessimistic and depressed, in the event that you are wondering--I would reserve judgment and give her a fair chance to prove herself in the hearings before the Senate Judiciary Committee. This means that I refused to commit against Ms. Miers even after the "I like Earl Warren/No, I like Warren Burger" fiasco, after the "proportional representation is part and parcel of the Equal Protection Clause" debacle and . . . well . . . a whole host of other revelations that made me want to throw things at random around whatever room I found myself in. I figured that if Harriet Miers could impress in the Judiciary Committee hearings, I might have a reason to vote in her favor and since I like to think the best of people, I welcomed the possibility.

But the more I have thought about it, the more I have realized that this is, at best, a forlorn hope. Let us suppose that Harriet Miers does well at the hearings. It is not out of the question that she would--she is an intelligent lawyer who is a fanatical worker and likely will do whatever is necessary to give a passable performance in front of the members of the Senate Judiciary Committee. Moreover, expectations are quite low so she really shouldn't have any trouble clearing them.

Should this impress us? Should we be dazzled that Harriet Miers might do well in Senate Judiciary Committee hearings? Let us remember that the Senators who would question her are not exactly Olympian thinkers. Let us remember that the hearings will be less an academic or intellectual exercise and more a political one.

And let us remember that Harriet Miers was not nominated in order to pass muster at Senate Judiciary Committee hearings with flying colors. She was nominated to serve a life tenure at the United States Supreme Court. Hearings before the Senate Judiciary Committee are designed to inform us how good a Justice a nominee may be. They are but a prelude to the ultimate test that is being a Supreme Court Justice. They are not the test proper.

So even if Harriet Miers passes through the prelude, what do we have? We have a very smart litigator who would be--and was--a very good managing partner at a large law firm who has not thought seriously about Constitutional law, issues of statutory jurisprudence or an overarching theory of jurisprudence. She will cram for her immediate hurdle before the Senate Judiciary Committee. But that is not enough to prepare her for a lifetime on the Court. For John Roberts, the Senate hearings were an occasion to show clearly to the very few who remained foolish enough to doubt him his absolute and awe-inspiring mastery of Constitutional law. For Harriet Miers, they would be an occasion to merely attain some semblance of respectability after an underwhelming rollout--underwhelming in large part because of her failure to impress even those whose own legal training is shallow at best.

And this is where I get off the bus. I don't want a Justice who is merely better than the mediocre. I want excellence. I want someone who lives and breathes the issues the Court grapples with and while Harriet Miers is an excellent lawyer, she does not fit the bill on this score.

Guys, sign me up as a fellow traveler. Mighty Bear, take note. I oppose the Miers nomination. Harriet Miers's nomination should be withdrawn by the President and an excellent nominee should be sent up in her stead. Failing that, Democrats and Republicans should stand together and vote Harriet Miers down.

(Cross posted--with suitable disclaimer--over at Red State.)