[Mb-civic] Can This Nomination Be Justified? - George Will - Washington Post

[William Swiggard]

Can This Nomination Be Justified?

By George F. Will
Wednesday, October 5, 2005; Page A23

Senators beginning what ought to be a protracted and exacting scrutiny 
of Harriet Miers should be guided by three rules. First, it is not 
important that she be confirmed. Second, it might be very important that 
she not be. Third, the presumption -- perhaps rebuttable but certainly 
in need of rebutting -- should be that her nomination is not a 
defensible exercise of presidential discretion to which senatorial 
deference is due.

It is not important that she be confirmed because there is no evidence 
that she is among the leading lights of American jurisprudence, or that 
she possesses talents commensurate with the Supreme Court's tasks. The 
president's "argument" for her amounts to: Trust me. There is no reason 
to, for several reasons.

He has neither the inclination nor the ability to make sophisticated 
judgments about competing approaches to construing the Constitution. Few 
presidents acquire such abilities in the course of their 
pre-presidential careers, and this president particularly is not 
disposed to such reflections.

Furthermore, there is no reason to believe that Miers's nomination 
resulted from the president's careful consultation with people capable 
of such judgments. If 100 such people had been asked to list 100 
individuals who have given evidence of the reflectiveness and excellence 
requisite in a justice, Miers's name probably would not have appeared in 
any of the 10,000 places on those lists.

In addition, the president has forfeited his right to be trusted as a 
custodian of the Constitution. The forfeiture occurred March 27, 2002, 
when, in a private act betokening an uneasy conscience, he signed the 
McCain-Feingold law expanding government regulation of the timing, 
quantity and content of political speech. The day before the 2000 Iowa 
caucuses he was asked -- to ensure a considered response from him, he 
had been told in advance that he would be asked -- whether 
McCain-Feingold's core purposes are unconstitutional. He unhesitatingly 
said, "I agree." Asked if he thought presidents have a duty, pursuant to 
their oath to defend the Constitution, to make an independent judgment 
about the constitutionality of bills and to veto those he thinks 
unconstitutional, he briskly said, "I do."

It is important that Miers not be confirmed unless, in her 61st year, 
she suddenly and unexpectedly is found to have hitherto undisclosed 
interests and talents pertinent to the court's role. Otherwise the sound 
principle of substantial deference to a president's choice of judicial 
nominees will dissolve into a rationalization for senatorial abdication 
of the duty to hold presidents to some standards of seriousness that 
will prevent them from reducing the Supreme Court to a private plaything 
useful for fulfilling whims on behalf of friends.

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/04/AR2005100400954.html?nav=hcmodule
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