perfidy

While I don't feel as Johno does that the recent appointment of Harriet Miers is some sort of presumptive ass covering, I am beginning to feel more strongly that this nomination should be stiff armed by the Senate. While Miers is no doubt a bright, pleasant and even (let us grant) deeply conservative person; I am not prepared to take on trust Bush's assertion that she is the best qualified candidate for one of the more important jobs in our republic.

A common refrain among Bush supporters, and one that I have on occasion used myself, is that Bush is right about the big things even if he occasionally commits some egregious pooch-screwing on the little things. This, however, is a big thing. One of the bigger things. Possibly the biggest, short of the war on terror itself. My stepmom voted for Bush second time around despite her deep opposition to the war for this reason alone. She wanted conservatives appointed to the big bench, and as we have seen Bush is having many opportunities to do so, and might have yet more.

Roberts was a suitable candidate. He is widely respected in the legal profession, adn is clearly as conservative as Rehnquist, who he is now replacing. But this nomination is the real big one, because we are replacing O'Connor - a swing vote.

George Will hits several very good points in his most recent essay. First is this:

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 prepresidential careers, and this president, particularly, is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers' 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' name probably would not have appeared in any of the 10,000 places on those lists.

This gets back to the argument against cronyism from Federalist 76. Were I president and nominating a candidate for the Supreme Court, I could select my cousin Chris for the job. I can be certain that Chris would be reliably conservative for the next several decades and ensure that the court goes in a way that I want. That doesn't make Chris a bad person, but neither would it convince anyone that he was the best candidate for the position.

There are so many talented, respected conservative candidates that it is almost insulting that Bush should pick Meirs.

Will moves on and brings out the big, spikey bat:

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 insure a considered response from him, he had been told in advance 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.''

This gets to the heart of the matter. Bush clearly either lacks comprehension or conviction on the issue of constitutional responsibility. The Congress has been lacking this for most of a century, and large parts of the Supreme Court for decades. If we had a President who got it, we might redress some of the damage that has been done. The Constitution is the contract we all live by, and you can't go violating the terms of it without storing up some bad karma. The Constitution includes means for amendment, and that should be exercised rather than bending the Constitution out of all recognition.

Will continues:

The wisdom of presumptive opposition to Miers' 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 only be understood, empathized with and represented 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.''

I can't really add to that.

This nomination is not an abomination that should be resisted to the last breath. But it is a bitchslap to the face of the body politic. I disagree with ideologues using the Senate to enforce litmus tests on candidates for the courts, or indeed for other positions of responsibility. But the Senate does have a responsibility - detailed in Federalist 76 and elsewhere - to weed out the sick, the weak and the incompetant. A sort of Darwinian control on Presidential appointments. John Tower was a drunk, and was rightly bounced for secdef. Abe Fortas was righteously bounced for being a crony of LBJ. Bork was wrongly bounced for ideological reasons when everyone knew that he was more qualified in terms of constitutional acumen than anyone then on the bench.

There are plenty of good candidates. Alito, McConnell and Luttig right off the top of my head. Maybe we should wait and see if we can do better.