Can This Judiciary Be Saved?

I have to admit this kind of story gives me pause. Last night in The Corner a White House source was denying it, but it's confirmed in the lead WaTi piece this morning that Miers' meetings with Senators are going poorly, so she's going to stop 'em and cram for the big final. The question is whether the meetings are going poorly because Miers is out of her league, or because Senators are misbehaving.
I continue to believe that Harriet Miers deserves her say in hearings, but it's beginning to seem that unless she absolutely wows everyone at the hearings, her nomination could be sunk. Maybe not --maybe she squeaks by, but it's increasingly clear that we are not to be allowed a jurist with a "plain reading" of the Constitution, because lawyer-class Conservatives are going to play Constitutional "gotcha." Consider this Bruce Fein editorial today, which is indicative of the generally negative response to Miers' Senate questionnaire in the blogosphere, and of the kind of thing we can expect from Senators at the hearings. Fein purports to eviscerate her answers and show her up as a lightweight; I think she can be defended.

On the first point, where Fein (agreeing with Michelle Malkin and others) thinks Miers made an embarrassing elementary mistake about the meaning of proportional representation under the equal protection clause, I'll let the Powerline boys speak. Too long to quote, but suffice it to say they conclude "people shouldn't be so quick to conclude Miers is an idiot."

Fein's second indictment of Miers gets at the heart of my gripe with Conservative legal scholars generally. He says correctly that "the Supreme Court is not the only institution entrusted with adherence to the Constitution," but like most lawyers, he understands "the Constitution" to be what the Supreme Court says it is, not understanding that Congress & The President also have power to interpret the Constitution. As co-equal (or even superior, as Ken Masugi would argue) branches of government, the Legislative and Executive branches have Constitutional means to challenge or limit the effects of poorly decided court decisions, as Congress did to get the Court finally to accept New Deal legislation, and as Lincoln did when he held that Dred Scot applied only to Dred Scott himself, refusing to enforce its holding generally.
Part of the big SCOTUS power grab of the past 30 years has been that Congress & the Executive, bowing to their robed masters, have abdicated their constitutional role as equal interpreters of the Constitution, and that is precisely the mistake that has brought us to the pass at which we find ourselves: unelected judges make things up out of the whole cloth, and the Conservative answer to this problem is: whine, stamp our little feet. . .and submit, accepting the tyranny of the judiciary. It's what caused Jeb Bush to bow to his own police officer -- a man in the employ of the executive branch, not the judiciary-- when the officer blocked the way into Terri Schiavo's room on orders of a judge. To put the question more simply, when a conflict arises between two branches of our government about how to interpret the Constitution, self-government requires that the conflict be solved politically, not by diktat of unelected judges.
As for Miers' judicial activism answer, it gets Fein hot under the collar, but I fail to see how it differs in substance from John Roberts' accurate answer: precedents deserve presumptive respect, yet there are times when they must be revisited. Moreover, as I said in a previous post, I am heartened by Miers' attention to the question of "standing," and as long as we're going to read her with a fine-tooth comb, we might read what she actually says, and not with an eye toward fitting her into our own conventional boxes.
With all the strange arguments coming from Conservatives, I have to keep reminding myself that I am not at this point a Harriet Miers booster, just someone who wants to hear what she has to say. But if Fein's column is indicative of what the hearings will be like, it's hard to be optimistic. What the Court needs is someone who can help restore "plain reading." Conservatives seem as determined as anyone that not be allowed to happen.
UPDATE: My crony reminds me of an important passage from McCullough v. MD, penned by Chief Justice Marshall.

A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.

...This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

The whole point of Marshall's opinion is, a la Justice Story, that it takes common sense more than technical terms to sit on the Court. The Conservative pundits want Miers to interpret a legal code, not a Constitution. Maybe she'll turn out to be illiterate or lacking in common sense, but she should not be DQ'd just for not having a conventional resumé. In fact, as my crony says, we should always squint a little harder at the people with the conventional resumés.