Posted on 10/13/2005 8:51:32 PM PDT by lancer256
I hate it when I am sympathetic to arguments on both sides of an issue as it threatens my image as a benevolently close-minded, dogmatic, doctrinaire ideologue. But I do think conservatives are talking past one another on the Miers nomination and that a rift is growing between some conservatives and the White House. So here are a few more observations concerning the ongoing Miers saga.
Conservative critics of the nomination might need to be clearer about the applicability of their objections. There is a difference between criticizing the president's pick and actually advocating Senate rejection of Miers' nomination.
(Excerpt) Read more at davidlimbaugh.com ...
Oh my God, an honest appraisal.
An OPEN mind? What a brilliant concept!
The core issues are conflicts of interest, and a missed opportunity of great magnitude.
You will get your fight eventually. Maybe sooner than you think.
"Accordingly, conservatives, unless they truly believe Miers to be unqualified, should specify that their objections are directed at the president and not the Senate, lest they run the risk of lending legitimacy to the liberal practice of rejecting nominees for extra-constitutional (including political) reasons."
This appears to be the new spin and it's nonsense. There is absolutely no Constitutional requirement for the Senate to approve a nominee, qualified or not. To vote on one, yes. But approval is not required, even of a supremely (no pun intended) qualified nominee. If the majority of the Senators dislike the nominee for any reason, including politics or the color of their hair (just read up on Alexander Hamilton spiking of John Rutledge for Chief Justice), they are empowered to vote him or her down. There are no Constitutional limits specified on the reasons for rejection.
A Republican (or Democrat) Senate voting down a qualified nominee that does not espouse a view of judicial interpretation that they agree with is perfectly valid and Constitutional. This type of reasoning, that as long as the nominee is qualified he or she must be approved, is on a par with saying that election campaiging needs to be civil and that bringing up an incumbent's record to use against him is somehow negative campaigning and to be avoided at all costs. Rather, it's what the election process is supposed to do. Or at least it was until the passage of the McCain/Feingold Incumbent Protection Act, which was subsequently signed into law by President Bush, even after publicly stating in the election campaign that he believed it to be unConstitutional and that a President violated his oath of office when he knowingly signed unConstitutional legislation.)
That is why elections matter. That's also one of the built-in checks and balances of the Constitution. No President gets carte blanche to nominate whomever they please. If the citizens vote in a President and a Senate majority from the same party (of course, in the original document Senators were chosen by the state legislatures which resulted in states having influence on SCOTUS appointees), it is perfectly valid for them to confirm a nominee whose method of Constitutional interpretation most closely agrees with their own and to reject one who is not. It is presumed that that is one of the reasons that the people voted to ensure just that capability. And if the President and Senate majority are of different parties, the Senate is perfectly justified in using political judgements when considering confirmation. Again, that's one of the reasons we have elections. It would have been perfectly permissible for Republicans to vote against Ruth Bader Ginsburg regardless of whether or not she was qualified as a judge - her method of judicial interpretation disagreed with the stated method of the Republican majority.
The nomination of Harriet Miers should be withdrawn. There were multiple actually qualified candidates available for nomination. Harriet Miers was not one of them. Indeed, the White House has even acknowledged this in the way they have responded to the assertion. First, in response to the charge they say that those making it are guilty of "elitism". What that says is that the claim is true but that we aren't very nice for bringing it up. It in no way addresses the validity of the claim. The second tactic was to make the assertion that the actually qualified nominees had removed their names from contention and that poor Harriet was all that was left. Again, this tacitly admits the assertion and makes the claim that they didn't have any other choice to make. That they haven't by this time responded in a way to disprove the assertion indicates they can't.
The more serious claim against her is the complete lack of a record of her judicial philosophy. The best the White House can do to counteract that is to assure us that, her own statements to the contrary, she is a conservative and (wink, wink) an evangelical Christian who used to run a state lottery. Conservatism is a political philosophy, not a judicial interpretation. A conservative judge implies an activist, i.e. one who will decide cases based on a political basis. An originalist judicial philosophy can be found in liberals as well as conservatives. (For example, you will find liberals who find Roe v. Wade to be poor law and who would vote for it's rescinding - not easy to find, but they are out there.)
Justices O'Connor and Kennedy are two justices who decide cases without an underlying judicial philosophy, and as we have seen, they have "grown" during their tenures. Judicial decisions based upon political beliefs are much more likely to grow and evolve than those rooted in a sound judicial philosophy. And currently reported items already attest to the evolution of Ms. Miers' political beliefs. They seem rooted more in expediency than any deeply held positions.
If her nomination is not withdrawn and Republican Senators can not establish that she knows how to interpret the Constitution in an originalist manner and do not feel confident that she would do so if confirmed, they are perfectly within their rights to reject her for that reason alone, either in committee or on the floor. To do otherwise would betray those people who have labored for decades to transform the Court from one of political activism to judicial restraint based on originalist interpretation of the Constitution, as the President has done by violating his campaign promises to appoint justices in the mold of Thomas and Scalia. To reject the Miers nomination would also serve notice to this President and to future Presidents that he/they cannot arbitrarily appoint unqualified or minimally qualified nominees to such a lifetime appointment and also that the practice of sending stealth nominees is not now and will not in the future be acceptable.
In order for the Senate to properly fulfill their advise and consent role (and remain true to their oaths to uphold the Constitution) they need to be able to accurately judge the judicial philosophy of nominees. The hearings are now structured in such a way that it is considered unethical for nominees to answer questions on how they would interpret specific provision that might come before them. (This wasn't always the case, by the way...this too is a fairly recent development.) So, it would become incumbent on the President to select nominees with established records of Constitutional interpretation (either of actual decisions made or writings on the philosophy of judicial interpretation.) Yes, this would result in rejection of originalist nominees should the Senate not be in Republican hands at some point in the future. But again, that's why elections are important. If you want to avoid that possibility then it forces the electorate to make sure that the party in charge of nominating and approving judges is the one that agrees most closely with their own views on the matter.
Actually, the reason to reject her nomination is not just due to her lack of qualifications. It's about respecting the separation of powers.
The insufficient information regarding Harriet Miers makes it impossible for the Senate to independently evaluate her fitness for the bench. The Founders gave the Senate confirmation power to ensure that the President's most important nominees had an extra layer of scrutiny. To pressure the Senate to accept any nomination out of "trust" for the President defeats this particular check-and-balance.
Suppose the Senate accepts Miers' nomination simply on basis of the President's assurances, and not from an independent knowledge of her fitness. That would destroy the principle of separate powers. We might as well give the President sole power to confirm nominees, since it is his judgment alone that determined the fitness of the appointment.
That is the opposite of what the Founders had in mind.
The second reason to oppose the nomination is to avoid setting the precedent of stealth appointees. Imagine, after she is confirmed, that Harriet Miers met or surpassed our best hopes. In the future, all Republican Presidents would then be expected to choose stealth, "trust-me" candidates for the Supreme Court. Even if she turns into a terrible justice, the precedent set would not likely be broken in the future.
Recent history tells us we need more scrutiny of nominees, not less.
* bump *
I agree with that, and have been expressing the same notion more tersely for a couple years, it seems. Ever since the filibuster got popular.
The process needs to be transparent to the public too. THis "principles avoidance" gig is troublesome, and indefensible.
As it is, the Senators and the President are conspiring to produce a show, satisfied with being uncertain, because certainty or convicion would erupt into a fight over principle.
Both parties advocate this system - and there is a risk that this cloudy system is our future.
Just listened to Hannity question Bill Bennett on H&C on what Miers should do. He hemmed and hawed, but finally said she should consider stepping down.
I think there are legitimate grounds to oppose Miers that aren't ideological. The necessity of her having to recuse herself in matters brought by or against the administration where she either had a direct involvement in the matter or had responsibility for it is a significant issue. She may have to recuse herself in other cases merely because of "an appearance" of impropriety. I've put it simply as what happens when Miers cannot protect us because of her prior work protecting us? It would ironic, to say the least, that Bush's nominee couldn't decide any cases involving recent WOT efforts. What good is she then, especially for all those Security Moms cited as making the difference for Bush in the last election?
There is also the cronyism angle. If I was a dem intent on either making the President look bad or just fishing for leads on more dirt, I'd want to ask Miers about all sorts of things that have happened in the administration since she's been involved in it. If she cannot answer those questions, there may be sufficient room for a pubbie Senator to take a principled stand against her, particularly when combined with the recusal issue and other non-ideological issues, and especially if that rejection is accompanied by a call to nominate someone who will provide the meat that conservatives want.
It can be pulled off. The sad reality is that there are a bunch of complainers all with their self-interests at heart around who just want to vent but don't want to actually commit to doing anything else that would be more productive. ----------------
The most productive thing conservatives can do right now is convince democrats that their leaders made a mistake by putting Miers on a list of candidates designed to avert an unconstitutional filibuster. If Miers is rejected after debating and voting, then their filibuster and concomitant notion that the Senate should be consulted in the nomination process falls apart because they voted against someone on their own list.
That's what I'd like to see instead of having her withdrawn.
Ditto. This is a public process. The nominee must have a public record.
You're right that the reason for the timidity comes down to the principles that neither side want to debate. The Democrats cannot really defend Roe V. Wade except superficially. The Republicans who should have the upper hand shrink from debate, for whatever reason. Perhaps the constitutional rationale for their positions are not clear to their full understanding.
Interesting, since that is the very fear many of us have about Miers: she may be politically conservative, yet may lack the ability to defend her viewpoint when it matters. That is not far from the description of O'Connor, who was ever-evolving with the latest liberal argument she could not refute.
The rationale is politics over principle. The GOP and DEM are united as a ruling class to some degree, to the detriment of the people. A fight over a balance of powers issue might educate the people as to how their government is supposed to function.
I am amazed that here at FR, less than 2% of the posters have a clear understanding of balance of powers. The "system" envisioned by the constitution is subjected to sophistry and shallow "analysis," but never connected with what the ruling class is pulling over on the public.
So, I think the timidity is simple conflict avoidance. It has no basis in Constitutional principle - if it did, it would be discussed in those terms.
And as for defending Roe, that is the name of the case, but the rational in the case is the true power center - the unjustified adoption of the court opf issues that belong in the legislature. Again, all go along. The politician avoids being held to account for public policy, and the court is (relatively) immune to public criticism.
With regard to the reasons President Bush nominated Ms. Miers, I do believe that in addition to the belief by all that she would preserve status quo, no rocking the boat, but a play dispute so the people would feel good that there had been some fight, I am not convinced that the nomination (especially given the benefit that agreed stealth provides to the nominee) is based more on giving a favor than on qualifications.
Another very legitimate concern--one that deserves more attention. In how many cases would she be forced to recuse herself, as a person involved so closely with presidential matters before the Court? The possibility that it could be many or few should give us pause.
The cronyism aspect of the nomination is also troubling to me, since that was singled out by the Founders as a reason for granting the Senate confirmation power.
By now, we've all see this quote from Hamilton in the Federalist Papers (76), worth repeating:
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
Very true. Far from being a vehicle of change, most Republican leaders aspire to being no more than a speed bump in the road Democrats have paved for us since FDR.
Good article.
The problem with most who are asking for a track record is that a track record has not been available for many who were and are on the court.
Now it is a requirement, according to the dems and her critics.
So if she can be set aside because she has no track record on Constitutional law, then Thomas should never have been appointed, since he did not. But we have enshrined Thomas... with no track record on Constitutional Law until after he got on the bench.
We are on dangerous ground. We have not yet heard her but are willing to be led by rumor and innuendo and no regard to fairness. We are "Borking" a Republican candidate, but before she has even testified. At least the dems allowed Bork to testify.
Limbaugh is right- let's wait and hear what she has to say. Roberts surprised many detractors here on FR.
Limbaugh is absolutely right here. The 'experts' on Constitutional law must yield to it, and they for some strange reason, object to doing so.
Disapproval is one thing, but rejecting her (i.e "Borking" her) is repugnant.
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