Hard of Hearings


Along with the conservative critics making full-throated calls for the withdrawal of Harriet Miers' nomination seem to be no small number who're dubious, but keeping an open mind until the hearings. If their concern is just whether she'll vote the way they want on a few hot-button issues, that might make sense, at least if Miers' testimony represents a departure from her longstanding reputation as an utter cipher. On this question, hearings can act as a (poor) substitute for a paper trail. But for those concerned about her qualifications, this seems bizarre. Hearings—even multi-day hearings—cannot reasonably be expected to act as some kind of massive, high-stakes ConLaw exam. Even with some well trained lawyers posing the questions, I very much doubt the sort of answers that emerge from these kind of Q&A sessions would reveal the difference between, say, a bright law student and a deep jurisprudential thinker suited to deliver the final word on complex questions that have left lower courts conflicted. For that, you need the paper trail—not soundbites, but lengthy examples of a nominee's constitutional reasoning as applied to actual fact patterns, either in published opinions or scholarly articles or something. That we should be in the position of trying to use a few days of questioning as a proxy for all that speaks volumes about the cavalierness of this choice.