Towards A Good Samaritan World

Thursday, October 27, 2005


The debate about Harriet Miers is not over because all parties have a stake in defining just what precedent was set by the withdrawal.

Michelle Malkin writes that:

Exit strategy hinged on refusal to release privileged White House documents... Whatever. We know the real reasons.

Do we? What is it then? Did the White House cave in to conservatives? Did the Miers nomination fail because it didn't have any constituency of firm supporters, as Josh Marshall argues? Was it that the "wingnuts won," as Kos and Harry Reid claim? Or was Miers just under-qualified?

Republican commentators have typically argued that 1) ideological tests cannot be asked during confirmation hearings, which implies that 2) for better or worse, stealth nominees are a good strategy.

The Roberts nomination followed this script: Roberts was a stealth nominee, with mysterious views but excellent credentials; and he refused to answer questions about his ideology, got confirmed anyway, and in effect won a round of the debate against the Senate's right to test a judge's ideology. If the Miers nomination was shot down because Miers was too unknown and didn't meet conservatives' ideological standards, then the principle of no-ideological-test is shattered.

On the other hand, if the Miers withdrawal was forced by her lack of qualifications, then the Roberts precedent is intact.

To me, it seems that the issue of whether senators should be able to ask judges ideological questions is a process issue. Of course a judge shouldn't judge a case before he hears the facts. But some cases, such as Roe v. Wade, are so famous and important that any judge should already know the facts and-- if they're fit for the Supreme Court-- should pretty well know how he/she would rule. If they do, I don't see why they shouldn't tell the American people. In this case, I'm with the Democrats on the process issues.

Anyway, the next Miers debate is: was the withdrawal of the Miers nomination (1) the shooting down of a stealth nominee qua stealth nominee, that is, for being too obscure or unknown, (2) a successful purge of a nominee for ideological reasons by the conservative right, (3) the rejection of a candidate for a lack of qualifications, (4) the rejection of a candidate for being too close to the president and a potential "obsequious instrument of his pleasure" (to quote the Federalist Papers), (5) the separation-of-powers difficulty that the White House stated as the reason for the withdrawal, namely that the executive's own confidentiality needs prevented them from releasing papers that the Senate needed to see to perform their "advice and consent" role, or (6) something else.

If the Democrats can make the case that the Miers withdrawal was case (1) or case (2), they can claim that the Miers precedent forces a change in the dynamics of the whole confirmation process. For if conservatives can vet nominees ideologically, can't Democrats? And if even conservatives are not comfortable with stealth nominees, by their own president, then surely Democrats have a right to know a nominee's views! I wouldn't mind seeing the Democrats win this argument, but I don't think they can, because conservatives can argue for (4) and (5), or, in a pinch, (3).

If Bush nominates Michael McConnell next (here's hoping) then Democrats will try to blast him on ideological grounds, and we'll have a salutary national debate on judicial philosophy. Like Bork. Maybe we can win it this time. To block McConnell, Democrats could filibuster, and if they do, I hope Republicans will capitulate-- after a few weeks. (What would be really cool is if the Democrats, gambling that moderate Republicans would block the nomination, allow an up-or-down vote, and lose.) If Democrats filibustered McConnell, they'd have to justify why the minority in a democracy should be able to block the will of the majority. Or they'd have to claim that they did represent the majority. Maybe the polls, those slicky-tricky polls that show Bush losing to a nameless Democrat, would come to their aid. Anyway, it would be interesting, and it would serve to democratize the judiciary a bit, which would be a step in the right direction.


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