[Mb-civic] Withdraw This Nominee - Charles Krauthammer - Washington Post

[William Swiggard]

Withdraw This Nominee

By Charles Krauthammer
Friday, October 7, 2005; Page A23

When in 1962 Edward Moore Kennedy ran for his brother's seat in the 
Senate, his opponent famously said that if Kennedy's name had been 
Edward Moore, his candidacy would have been a joke. If Harriet Miers 
were not a crony of the president of the United States, her nomination 
to the Supreme Court would be a joke, as it would have occurred to no 
one else to nominate her.

We've had quite enough dynastic politics over the past decades. 
(Considering the trouble I have had with Benjamin and William Henry 
Harrison, I pity the schoolchildren of the future who will have to 
remember who was who in the Bush-Clinton-Bush-Clinton presidential 
alternations from 1989 to 2017.) But nominating a constitutional tabula 
rasa to sit on what is America's constitutional court is an exercise of 
regal authority with the arbitrariness of a king giving his favorite 
general a particularly plush dukedom. The only advance we've made since 
then is that Supreme Court dukedoms are not hereditary.

It is particularly dismaying that this act should have been perpetrated 
by the conservative party. For half a century, liberals have corrupted 
the courts by turning them into an instrument of radical social change 
on questions -- school prayer, abortion, busing, the death penalty -- 
that properly belong to the elected branches of government. 
Conservatives have opposed this arrogation of the legislative role and 
called for restoration of the purely interpretive role of the court. To 
nominate someone whose adult life reveals no record of even 
participation in debates about constitutional interpretation is an 
insult to the institution and to that vision of the institution.

There are 1,084,504 lawyers in the United States. What distinguishes 
Harriet Miers from any of them, other than her connection with the 
president? To have selected her, when conservative jurisprudence has J. 
Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen 
others on a bench deeper than that of the New York Yankees, is scandalous.

It will be argued that this criticism is elitist. But this is not about 
the Ivy League. The issue is not the venue of Miers's constitutional 
scholarship, experience and engagement. The issue is their nonexistence.

Moreover, the Supreme Court is an elite institution. It is not one of 
the "popular" branches of government. That is the reason Sen. Roman 
Hruska achieved such unsought immortality when he declared, in support 
of an undistinguished Nixon nominee to the court, that, yes, G. Harrold 
Carswell is a mediocrity but mediocre Americans deserve representation 
on the court as well.

To serve in Congress, or even as president, there is no requirement for 
scholarship and brilliance. For good reason. It is not needed. It can 
even be a hindrance, as we learned from our experience with Woodrow 
Wilson, the most intellectually accomplished president of the 20th 
century and also the worst.

But constitutional jurisprudence is different. It is, by definition, an 
exercise of intellect steeped in scholarship. Otherwise it is nothing 
but raw politics. And is it not the conservative complaint that liberals 
have abused the courts by having them exercise raw super-legislative 
power, the most egregious example of which is the court's most 
intellectually bankrupt ruling, Roe v. Wade ?

Miers will surely shine in her Judiciary Committee hearings, but that is 
because expectations have been set so low. If she can give a fairly good 
facsimile of John Roberts's testimony, she'll be considered a 
surprisingly good witness. But what does she bring to the bench?

This, say her advocates: We are now at war, and therefore the great 
issue of our time is the powers of the president, under Article II, to 
wage war. For four years Miers has been immersed in war-and-peace 
decisions and therefore will have a deep familiarity with the tough 
constitutional issues regarding detention, prisoner treatment and war 
powers.

Perhaps. We have no idea what her role in these decisions was. But to 
the extent that there was any role, it becomes a liability. For years -- 
crucial years in the war on terrorism -- she will have to recuse herself 
from judging the constitutionality of these decisions because she will 
have been a party to having made them in the first place. The Supreme 
Court will be left with an absent chair on precisely the laws-of-war 
issues to which she is supposed to bring so much.

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/06/AR2005100601468.html
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://www.islandlists.com/pipermail/mb-civic/attachments/20051007/5f0b3845/attachment.htm