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.