George Will has been one of Harriet Miers' most eloquent critics and his current essay on the matter is perhaps his best. The whole argument is elegantly written and tightly reasoned but perhaps the highlight is the second half of the essay:
As Miers' 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.
To that argument, the obvious and sufficient refutation is: Why, then, have hearings? What, then, remains of the Senate's constitutional role in consenting to nominees?
It is not merely permissible, it is imperative that senators give Miers ample opportunity to refute skeptics by demonstrating her analytic powers and jurisprudential inclinations by discussing recent cases concerning, for example, the scope of federal power under the commerce clause, the compatibility of the First Amendment with campaign regulations, and privacy -- including Roe v. Wade.
Can Miers' 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.
As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch's invaluable dignity. Finally, any Republican senator who supinely acquiesces in President Bush's reckless abuse of presidential discretion -- or who does not recognize the Miers nomination as such -- can never be considered presidential material.
The line about it being easy to cobble together a senate majority on behalf of a concrete interest but "surpassingly difficult to get a majority anywhere to rise in defense of mere excellence" is a classic.
Meanwhile, Peter Schramm at No Left Turns offers his reasons for believing that Miers will not go through with the hearings:
I now have an opinion on what will happen with Harriet Miers: She will withdraw her nomination before the start of the Judiciary Committee hearings. This opinion is not based on the latest George Will column that explains why she cannot be defended, nor is it based on my discovery of the tacky Harriet Miers's Blog. My opinion is based on overhearing private conversations (i.e., reading between the lines in press reports), getting a sense of her declining fortunes from Senators and staffers who have been inclined to support her, and my visit to the local watering hole last night.
Even overlooking the congenital anti-Bush bias in the MSM, press reports make clear that the more would-be-defenders of Miers get to know her (visits to their offices, reading responses to written questions, etc.), the less they like her. This is supported by private, off-the-record opinions I get a whiff of now and then indicating that almost everyone who has had dealings with her during the last few weeks has come to regret that she has been nominated. And, if she doesn't withdraw, this negative opinion will come to a peak during the Judiciary Committee hearings, to everyone's huge embarrassment. Since neither political interest nor honor will not allow this to happen, she will not make it to the scheduled hearings.
My second reason for thinking that she will withdraw is the sampling of the opinion of local citizens, culminating in last night's visit to the tavern....These are good, conservative, Republican folks, always giving Bush the benefit of the doubt; trusting Bush. Not this time. They have become convinced that this nomination is a huge mistake and their thoughtful conversation convinced me that they are right: the best thing Bush can do is to ask her to withdraw because she has no support. I was a bit surprised how deliberate and thoughtful their logic was; neither bitter nor vengeful, just the common sense of the subject. One man, a Marine, said this was like a bad love affair: the more you got to know Miers, the less you liked her. Very clarifying, I thought. It's over. Never mind the justice of the thing. It's over. Now the only thing left is for either Bush or Meirs to find a graceful way out.
Anecdotal, to be sure, but when staunch defenders of the President like No Left Turns, Michelle Malkin, and the Power Line guys are telling the Big Guy that he whiffed on this one the outcome looks very bleak indeed.
It's so unfortunate that this happened, particularly in light of the fact that it was so easily avoidable. The Miers nomination has done more to shake conservatives' confidence in the competence of the Bush administration than all their other putative misteps put together.
