Wednesday, October 05, 2005

BURDEN OF PROOF Forty-eight hours in, this is where the Harriet Miers nomination stands: Conservatives are conflicted. Liberal interest groups are skeptical. Senate Republicans are respectful but wary and Senate Democrats are...wary but respectful.

A prominent strand of commentary in the elite media interprets this range of reactions as evidence that Miers is a "safe" choice. Consider this wire story by AP scribe Ron Fournier:

Some liberals call it cronyism. Some conservatives call it a betrayal. President Bush is gambling that it will prove smart and safe--choosing a little-known loyalist with no judicial experience to fill a second Supreme Court vacancy.

Harriet Miers seems destined for confirmation. Despite howls from the fringes of both parties, Democratic and Republican strategists expect her to take a seat alongside newly minted Chief Justice John Roberts barring a surprise development.
But if Miers is on the fast-track toward confirmation, she shouldn't be. George Will makes all the obvious points:
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.


It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

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.
The burden is indeed on Miers. Will is right: She should have to work aggressively to prove that she's up to the job--that she has the requisite intellectual firepower, a sound and sophisticated approach to constitutional reasoning and a working knowledge of the court's history and precedents.

Accomplishing all that in a few days of hearings is a tall (though not insurmountable) order. But it's a standard she must be held to given her lack of relevant experience and the lack of a relevant paper trail on the basis of which to assess her qualifications.

Senators voting to confirm her without such proof will have fallen down on the job.

CONTRAPOSITIVE is edited by Dan Aibel. Dan's a playwright. He lives in New York City.