On George Will's Column

Excerpts of George Will's latest column are posted and commented upon here, over at Confirm Them. And to some of these excerpts, I would just add a couple of notes.

Not all Miers supporters -- or anti-anti-Miers people -- have "cynically" called her opponents "sexist." Indeed, some of us have, in fact, defended opponents from that charge, and criticized those who made it.

Second, I agree with Will that constitutional reasoning can often be enormously important -- witness how Chief Justice Rehnquist and William Brennan, when both were in the minority, penned dissents that were enormously influential in drafting later majority opinions. And it is important to replace legislative reasoning with judicial reasoning.

But how is Will so sure that Miers is either unwilling or incapable of doing so? What does he know that he isn't telling us -- because I haven't heard any dispositive evidence, yet, that Miers either can't or won't live up to his standard. In addition, I can't go as far as believing, as some do that it's perhaps always better to have the "wrong" outcome with excellent reasoning than the "right" outcome even with some flawed reasoning. After all, is it really worse to have a "concurrence in the result" even with a little wacky stuff in it than a dissent in cases dealing with affirmative action and the like? (Yes, best to have brilliant reasoning with the "right" outcome, but that's not the hypothetical choice here).

Finally, Will writes this:

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.

And that's all very well, if we can be sure that this line of questioning can -- and be understood to -- differ from simply asking nominees what their views are on this or that case. Because once nominees can be asked about -- and voted up or down on -- their views on particular cases and their outcomes (including some that may come before them for review and reversal), then the nomination process has become inextricably and eternally intertwined with politics.