When We Get to the Hearings, It Will Be Too Late

As I've said to friends and associates many times since the announcement of the Miers nomination, I hope her name is withdrawn before we get to the hearings. Everyone says that we will know what she believes when we get her in front of the Judiciary Committee -- as if that should be some sort of comfort.

What if, in the hearings, she somehow reveals that she will be the next Sandra Day? Judiciary committee Republicans will be in a tough spot. They’ve been clamoring for years that nominees deserve an up-or-down vote and should not be “held languishing” or killed in committee. So, the committee will be forced to send her nomination to the floor.

Well, GOPers who don’t like her won’t be numerous enough to kill the nomination, considering that 23 Democrats were willing to vote for Roberts. If they were willing to give a “thumbs-up” to him, surely they will do so for a nominee that the true conservatives in the Senate don’t like -- especially if they think she could be the "swing" vote for the Left that O'Connor was. The New York Times published a similar thought in their lead editorial yesterday:

If Ms. Miers's nomination has caused Republicans to suddenly acquire standards, it may be causing Democrats to forget theirs. Many appear to have calculated that Ms. Miers would be a more moderate justice than anyone the Bush administration would nominate if she were defeated. Perhaps as a result, Senate Democrats have been remarkably restrained about criticizing Ms. Miers's close ties to the president and the thinness of her resume.

And surely Republicans won’t allow themselves to be held solely responsible for killing her nomination on the floor -- there will need to be enough Dems to team up.

And we know the Republicans won’t filibuster her, they say they don’t believe in it.

The only way, in my view, to prevent her elevation to the Supreme Court is to keep her from getting to the “hearings” stage. I hope I’m wrong, but fear I’m not.

I can suggest a much more likely scenario than "What if, in the hearings, she somehow reveals that she will be the next Sandra Day?" Much more likely, she will reveal nothing. She has spent a whole lifetime doing that, while she pursued her career as an ambitious business lawyer.

Anyone who thinks that the Circus in the Senate, where Senators from both sides pose for the cameras and ask idiot questions that she will refuse to answer, will make her qualifications clearer, is nuts. The only definitive evidence one might expect is if a scandal erupts, by favor of the Democrats and their dirt-digging detectives and sleazy pornographers. But we should not count on it.

No, this whole business of "Don't criticize the appointment until after the confirmation process" makes about as much sense as "Don't criticize the appointment because it's elitist and sexist, and mean to Bush too!"

"It will be too late. . . ."

This argument avoids a larger question for thoughtful Americans who claim conservatism as their banner.

Do we really believe in strictly interpreting the Constitution and abiding by its provisions, as intended and explained by the Framers, or do we not trust its wisdom if it conflicts with our opinion? (Is this not the criticism we've had for "liberal activist judges" for years now?)

This presents a real dilemma for those who are now attempting to insert themselves into the process before the President's nominee proceeds to the next step in what is a Constitutionally-prescribed process.

They claim a genuine label of "conservatism," which, generally is understood to include a devotion to preserving the principles of the Constitution.

But, if we have a devotion to the Constitution, then we must recognize that it is the Constitution itself which prescribes both the sole authority for nominating, as well as the actual process for nominations to the Court.

On the one hand, we claim this great dedication to it and to what we describee as "the most highly-qualified" new justice--one who will interpret and abide by its provisions. On the other hand, many of us ignore its own prescribed prescription and process for selection of justices, preferring to pretend that the Constitution (which we may not understand) does not give citizens a role in assisting the Executive (President) in the actual naming of nominees to be considered by the Senate.

Federalist No. 76 explained very carefully for ordinary citizens the Framers' reasoning when it came to making the President the sole authority for appointing justices, with approval of the Senate. They understood human nature, and they understood politics, and they deliberately chose not to include us in the process. To the contrary, they explained very carefully why persons with special party interests should not be able to exert their pressures in the process.

It is the President who is putting his role in history on the line, and Federalist 76's explanations really "stick it to" Presidents on this point. Like America's Founders, his concern must be with how future generations will judge his decision--not with how a fickle 'base' regards him now. Posterity will either judge of him that he furthered the cause of liberty with this nomination or that he did not. The burden is his.

If today's "conservatives" (whatever we may interpret that term to mean) truly want our Constitution to be honored and preserved, then we should be willing to live by its prescribed processes ourselves.

Else, we destroy our own credibility!

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