The nomination of a nobody like Harriet Miers has now vaulted the process of naming a Supreme Court justice onto the Feydeau plateau of farce. Does Miers, who has never judged anything, not even the liposuctioned rumps of Arabian horses, deserve the appointment? No one really believe she does, including the president, who had to screw on his patented hardworkin' mask when he recited her achievements, which include volunteering for “Meals on Wheels.” By the Harriet Miers standard, that sweaty guy with the comb-over at H&R Block who once did a pretty fair job on my taxes should be secretary of the Treasury.
Putting forward the name of a Supreme Court nomination is now a series of feints and maneuvers so intricate that no imperial court has seen anything like it since the time when Tudor kings got sick. It begins with a president trying to pick someone the other side won't anticipate (to keep the media positive that first day out) but who also has a paper trail skimpy enough that any look-see into the nominee's positions will come up short. In the case of Miers, she's a twofer: no paper trail and no career as a judge. No doubt about it: The opposition won't find a thing.
Now with Miers named, we have the hearings and the vote to come, what the president is fond of calling the “process.” Few executives are as enamored with the tedium of process as George W. Bush. He's forever counseling patience from us to “let the process play out,” whether it's nation building in Iraq or any ongoing investigation of Karl Rove. In the case of a Supreme Court justice, playing along with the process -- the sophistry of hearings followed by the noble Senate engaged in a roll-call vote on CNN -- is precisely what is desired.
The whole confirmation process will endow Miers with a gravitas her pallid achievements can't bestow. So what to do?
Democrats have, most people think, two options: vote against her or filibuster. Each of these will look hostile and partisan, and are destined to fail because the Republicans have a simple majority. In the end, either option makes her look a lot more like the contender she isn't. The truth is, Miers is like Clarence Thomas: nowhere close to the best candidate. Instead she is a person absolutely lacking every possible qualification for the job except that she let it get around that she thought Bush was “the most brilliant man she had ever met.”
Can he be that easy?
So the Democrats should use this entire process to register a much bigger complaint and expose this entire circus. They should abstain from the vote, en masse. Roberts was voted in 78 to 22; Ruth Bader Ginsburg 97 to 3. If the Democrats do this, Miers elevation to the Court will look embarrassing: 55 to 0, with 45 abstentions.
During the hearings, Democrats can use their time to express what a shame it is that the Supreme Court has become a patronage machine, and how much they miss having presidents nominate seasoned judges for a job that involves, well, a lot of judging.
Instead, the “process” now nominates stealth candidates whose extremist ideology is well disguised and who are not older and wise but younger and loyal. The hope is not that they will grow and mature on the court like Republican nominee William Brennan, who moved toward more liberal positions, or Democratic nominee Byron White, who moved toward more conservative positions. Rather, the new model for a Supreme Court justice is Clarence Thomas, the most visible affirmative-action hire in all the land, a token black nominee whose lack of qualifications was so painfully outed during his confirmation hearings that his humiliation guarantees a lifetime of rigid knee-jerk thinking. Seeing a lively oral argument at the Supreme Court is a worthy thing to do if only to watch the preternaturally silent Clarence Thomas, who sits there like a freak-show Warhol movie, motionless, still smoldering 15 years later with unslaked ideological fury.
A solid bloc of abstentions will not keep Miers off the Court. Nothing the Democrats do can stop it, but a sea of abstentions would subvert a process meant to ennoble her. Instead, she will ascend to the high court shrouded in a black robe and the profound national embarrassment that half the nation's legislators refused to have anything to do with her. Her confirmation should be a protest against elevating painfully underqualified people to the Court, regardless of whether it's an affirmative-action hire or cronyism, and that in the future, the president should try to use what he claims he's looking for: good judgment.
Jack Hitt is a contributing writer to the New York Times Magazine, Harper's and the public radio program, This American Life.
