Friday, October 21, 2005
I really want to drop the subject of Harriet Miers, so I'm going to do so after this post. David Limbaugh spends most of a piece arguing that conservatives should not urge rejection by the Senate because this would (according to traditional conservative interpretation of the clause) exceed the Constitutions mandate to the President to seek the Senate's "advice and consent." But he then asks, rhetorically, whether this interpretation doesn't put conservatives at a structural disadvantage given that liberals don't have a problem rejecting nominees for ideological reasons, while conservatives do. Implicitly, he's asking whether perhaps the Senate *should* reject Miers, precisely *because* this would mean abandoning traditional Senatorial deference to the President on the judiciary.
I don't have a strong opinion on the original intent of the ratifiers of the Constitution in this matter. In any event, I am far more comfortable with the idea of elected legislatures "evolving" their interpretation of such phrases over time than I am with the judiciary doing so, precisely because the legislature is directly accountable to "the people" who are the source of the Constitution in the first place. (Thus, for example, I think the Supreme Court was wrong to rebuke Congress for enacting a broader interpretation of the Free Exercise Clause of the First Amendment.) So whether or not the original understanding of "advice and consent" was deferential or provided for robust sharing of authority in staffing the judiciary, Congress can plausibly lean in either direction based on the political needs of the moment.
I disagree with Limbaugh about the political situation, though. The GOP made real gains in the legislature because of anger at Democratic filibustering of judicial nominees. If the GOP starts doing the same thing, then the debate becomes not about abuse of the process and obstruction but about dueling judicial philosophies. And while some conservatives think the country is on their side in that debate, in reality most of the country doesn't care, and most of those who do care focus on results rather than the details of a judge's philosophy. Thus, a majority of Americans favor some restrictions on abortion that the Court has prohibited, and a majority of Americans favor retaining Roe v. Wade, which is the basis on which the Court has prohibited those restrictions that Americans favor. On balance, I think abandoning the deferential position on nominations to the court hurts conservatives and the GOP politically more than retaining that position.
But, more to the point, I think it's the right position for the independence of the judiciary, which is a value in and of itself. The solution to judicial over-reaching is to change the judiciary and/or rebuke it by reining in its powers. The solution is not to make the judiciary more directly accountable to the legislature, because that undermines the judiciary's independence. Which independence is kind of critical to the rule of law in the first place.
I don't want to overstate my point. The sky will not fall in if the Senate rejects Miers because she's not the kind of judge the Senate would prefer. I just think it will be a bad precedent for conservatives to set. Hopefully the President will withdraw the nomination before the Senate is forced to decide to reject her for being unqualified (which would be embarrassing to everyone) or because her selection and promotion raises ethical problems (which could do real and lasting damage to the White House).