November 24, 2024
Editorial

HIGH COURT IDEALS

Members of the Senate Judiciary Committee have a straightforward task in reviewing Harriet Miers’ fitness for the Supreme Court. Because expertise in constitutional law is high among the qualifications to serve on the nation’s highest court, Ms. Miers must demonstrate long-standing thought and experience in dealing with the U.S. Constitution and its interpretation. Failing such a demonstration, her nomination should be rejected.

Some will get distracted with Ms. Miers’ stance on abortion, torture and other important issues that are likely to come before the court. Certainly these are important questions, but Ms. Miers, so as not prejudice future rulings in the event she is named to the court, won’t answer them. Beyond that, however, her personal philosophy is much less important than her apparent lack of judicial pondering.

An abiding interest in the law is more important than whether a nominee has prior experience as a judge. There is no indication that Ms. Miers has devoted much time to reading, writing or thinking about jurisprudence on the grand scale.

As conservative columnist George Will recently wrote: “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.”

The court, as Charles Krauthammer, another conservative columnist wrote, is meant to be elite. It is a place reserved for the best legal minds in the country. “Constitutional jurisprudence is … by definition, an exercise of intellect steeped in scholarship,” he wrote.

Ms. Miers has done much in her life. She was the first female partner at a large Dallas law firm and the first female president of the Texas Bar Association. These are real accomplishments, but they do nothing to suggest that Ms. Miers should be one of nine arbiters of constitutional disagreements.

Aware of the criticism from conservatives, the administration has begun to stress Ms. Miers’ work on constitutional questions, such as detaining enemy combatants and the legal parameters for the war on terrorism, during her time at the White House. These are important issues that are likely to reach the high court. Because of her work on the administration’s behalf, however, Ms. Miers would have to recuse herself from such cases, so even this limited constitutional experience would not be a benefit to the court.

While Democrats, moderate Republicans and GOPers concerned about Ms. Miers’ lack of credentials, both judicial and conservative, can likely muster enough votes to reject her nomination, there is a real fear that a replacement nominee could be worse, especially in terms of right-wing activism. To ensure this doesn’t happen, those who oppose Ms. Miers should begin working together to send a strong message to the White House as to what type of nominee is acceptable.

The administration, which likes to go it alone, should cooperate with the Senate on this one. A possible filibuster, ended with the nuclear option, is not what the White House wants with mid-term elections around the corner.


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