ConfirmThem

By Feddie Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

So sayeth Charles Krauthammer:

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.

. . . .

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 ?

. . . .

By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to himself, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a presidency marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.

Spot on.