Like many conservatives, I was relieved to learn this morning that Harriet Miers had withdrawn her nomination to the Supreme Court of the United States. While I was initially disappointed with her nomination, I believed that, as the president’s nominee, she deserved the benefit of the doubt. But, the more I heard about her, the more I began to lean against her confirmation.
As I said before, I believe the president blundered badly in picking her. He did not adequately consult with Republican Senators and his conservative supporters and was thus not prepared for their strong opposition to his choice. Many were not convinced that she would be a conservative jurist while others were troubled by her lack of judicial experience. Still others (including yours truly) were troubled that her writings did not show much understanding of constitutional issues and that her answers to questions from Senators (both in her questionnaire and in her meeting with them) were inadequate or mealy-mouthed.
Her failure to convince Senators she was up to the job of a Supreme Court Justice led to her decision to withdraw. While Senate Minority Leader Harry Reid — and other Democrats — claim that “The radical right wing of the Republican Party killed the Harriet Miers nomination,” even some of his Democratic colleagues, notably Charles Schumer, questioned her qualifications. Had she demonstrated an understanding of constitutional law to Senators, I believe that most Republicans would have supported her confirmation — despite her lack of any conservative record on judicial issues.
As it was Senators’ concerns which led to her withdrawal, we see once again the genius of our Constitution which, in Article 2, Section 2, gave the President the power to appoint “Judges of the supreme Court,” conditioning that appointment on the “Advice and Consent of the Senate.” More than two centuries ago, in a piece for the New York Packet, preserved for us as Federalist No. 76, Alexander Hamilton saw the Senate’s “co-operation” in such appointments as “an excellent check upon a spirit of favoritism in the President:”
It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing.
In making this appointment, the president took his base for granted and did not fully anticipate this “possibility of rejection.” As Senators held discussions with Ms. Miers, they determined that she lacked the qualities they expected from a Supreme Court Justice.
Impressed by her skills as White House Counsel, the president likely thought she would do an equally good job on the Supreme Court. When members of the Senate, this “different and independent body,” disagreed, he likely realized that, in tapping her, he had shown favoritism for this trusted aide, an accomplished attorney, but someone better suited for administrative than judicial responsibilities.
Her withdrawal thus represents a victory for the Constitution. By providing a check on the favoritism of the president, our founding charter prevents a capable, but otherwise unqualified individual from sitting on the Supreme Court. With this experience behind him, the president is in a better position to do as he did a few months ago and appoint a jurist of the caliber of Chief Justice Roberts to the highest court in the land.
-Dan (AKA GayPatriotWest): GayPatriotWest@aol.com