Harriet Miers as the human Rorschach test.

Harriet Miers as the human Rorschach test.

Harriet Miers as the human Rorschach test.

The law, lawyers, and the court.
Oct. 7 2005 1:13 PM

Miers, Miers on the Wall

Harriet Miers as the human Rorschach test.

Over the last week it has been said that Harriet Miers is an "inkblot." That's supposed to mean she has no visible horns, no discernible politics, and no paper trail; that she's a huge national mystery. But what it should really mean is that she has become a huge national Rorschach test: We look at her and can see nothing beyond our own fears and anxieties.

What we actually know about Miers is virtually negligible: We know her notable successes as a Texas attorney; we know she's a serious born-again Christian; we know she is universally hailed as loyal and discreet. And we know she has been serving the president in various personal and professional capacities for a decade. But what we don't know could easily fill the 80,000 pages of John Roberts' documents we scrutinized so carefully before his confirmation: We don't know her politics, we don't know her judicial philosophy (or where she may have developed one), we don't know if she's even thought about the Constitution since law school, and we don't know how she would begin to approach a constitutional question.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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So, why is it that conservatives feel so free to loathe her outright, and why are Senate Democrats smiling placidly? Do they know something that we don't know?

It's true that conservatives feel betrayed in general and that Democrats are pleasantly surprised not to be contending with a Gorgon—but that doesn't fully explain their willingness to pass judgment so quickly. My own suspicion is that this is just the newest iteration of the game we just finished playing at the Roberts hearings: The They-Must-Know-Something-I-Don't-Know game in which each side concocts a fully developed sense of the nominee based on nothing more than paranoid readings of the other side's sense of the nominee.

Before the Roberts hearings, Democrats—faced with his stellar credentials, temperate professional reputation, and the lack of a smoking gun—reverted to this trope of deep suspicion: Republicans were too eager to support him. Although nothing was actually known about his views on abortion, gay rights, or other key issues, liberals began to murmur, louder and louder, that "they must know something we don't." This escalated when it became clear that the same man who helped the gay-rights appellants in Romer v. Evans was nevertheless embraced by the same right-wingers who call Anthony Kennedy the "most dangerous man in America" for his votes in Romer and Lawrence v. Texas, the subsequent gay sodomy case. How could they accept Roberts' softness on gay rights? Clearly they knew something we didn't.

Well, maybe the conservative base really knew something. Or maybe they just figured that if the liberal interest groups were so hysterically opposed to Roberts, he must be pretty darned awesome. Not much about the hearings really mattered after that. Both sides reacted back and forth to each other—actually, they mostly reacted to the advocacy groups on either side—and essentially talked right over Roberts' head.

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Enter Harriet Miers stage right. No one really knows anything about her, yet the folks on the right talk about her like she's Satan in Size 6 shoes, and the folks on the left figure that if the right hates her so much, she must obviously be Bill Brennan in Size 6 shoes. Or at least David Souter in purple suede pumps. Once the Manuel Mirandas and George Wills made up their minds that she was both a dim bulb and a Bush crony, liberals were content to accept her as the best of a truly awful field of alternatives; she must be a dim bulb if Will says so. But better a dim bulb than a charismatic original thinker.

The Bush administration is now feeding this dynamic of half-truths and suspicion directly. Having elected to hold, over recent days, a series of closed-door meetings and conversations with its disgruntled supporters in the base, the Bushies have raced to assure them that Miers will indeed be the Scalia-Thomas clone they were promised before the election. Rush Limbaugh and James Dobson are getting calls from Karl Rove on their little red bat phones offering up the goods on Miers that suggest she'll be the pro-life crusader to which they feel so entitled.

I don't know how you get one of them bat phones, but I want one, too.

Soon, then, Senate Republicans and key members of the base really will know something the rest of us don't know. They will then have to choose whether they believe it enough to support Miers. And if they do decide to get behind her, you can bet that liberal advocacy groups and Democrats in the Senate will change their views to accommodate that shift. Once they know that Republicans know something they don't know, the paranoia and superstition we saw during the Roberts hearings will kick in times a thousand. They will have no new information on Miers. But they will fully believe that the other side is keeping her awful secrets.

What's the result of a system in which everyone scrutinizes the nominee, finds nothing, then projects their own paranoia and anxiety onto the entire confirmation process? Well, for one thing we have abandoned the responsibility to scrutinize the actual candidate. Each side lets the other side set the agenda. Everyone waits to see what the other team thinks, and when that can't be ascertained for certain, we invent crazy scripts for what they likely think.

Members of the Senate have a duty to figure out who Harriet Miers really is. That duty ought to transcend the shallow current task of determining that we only like her if they don't. Granted, it's almost an impossible task to figure out who the nominee really is since confirmation hearings produce virtually no substantive information, and this nominee has no known views. The White House won't let us see any of her work product from her stint as White House counsel. And the class of questions nominees choose to avoid expands with every nomination. But what we cannot continue to do is react reflexively to one another; respond to invisible secret files we imagine the other team is chuckling over late at night over a cigar and a brandy.

Rorschach tests work, to the extent they do, because they reveal that the viewer is crazy without ever confronting him with that fact directly. That unacknowledged craziness is exactly what both sides of the judicial confirmation wars are now betraying: Faced with the impossibility of really knowing someone, much less predicting their behavior into the far distant future, we gaze at a meaningless drawing and see only our worst selves.