Jewish World Review Oct. 7, 2005/ 4 Tishrei 5766

Charles Krauthammer

Ch. Krauthammer
JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
David Limbaugh
Michelle Malkin
Chris Matthews
Michael Medved
MUGGER
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

Withdraw this nominee

http://www.JewishWorldReview.com | When in 1962 Edward Moore Kennedy ran for his brother's seat in the Senate, his opponent famously said that if Kennedy's name had been Edward Moore, his candidacy would have been a joke. If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her.


We've had quite enough dynastic politics over the past decades. (Considering the trouble I have had with Benjamin and William Henry Harrison, I pity the schoolchildren of the future who will have to remember who was who in the Bush-Clinton-Bush-Clinton presidential alternations from 1989 to 2017.) But nominating a constitutional tabula rasa to sit on what is America's constitutional court is an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom. The only advance we've made since then is that Supreme Court dukedoms are not hereditary.


It is particularly dismaying that this act should have been perpetrated by the conservative party. For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions — school prayer, abortion, busing, the death penalty — that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.


There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.


It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence.


Moreover, the Supreme Court is an elite institution. It is not one of the "popular" branches of government. That is the reason Sen. Roman Hruska achieved such unsought immortality when he declared, in support of an undistinguished Nixon nominee to the court, that, yes, G. Harrold Carswell is a mediocrity but mediocre Americans deserve representation on the court as well.


To serve in Congress, or even as president, there is no requirement for scholarship and brilliance. For good reason. It is not needed. It can even be a hindrance, as we learned from our experience with Woodrow Wilson, the most intellectually accomplished president of the 20th century and also the worst. But constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship. Otherwise it is nothing but raw politics. And is it not the conservative complaint that liberals have abused the courts by having them exercise raw super-legislative power, the most egregious example of which is the court's most intellectually bankrupt ruling, Roe v. Wade ?


Miers will surely shine in her Judiciary Committee hearings, but that is because expectations have been set so low. If she can give a fairly good facsimile of John Roberts's testimony, she'll be considered a surprisingly good witness. But what does she bring to the bench?


This, say her advocates: We are now at war, and therefore the great issue of our time is the powers of the president, under Article II, to wage war. For four years Miers has been immersed in war-and-peace decisions and therefore will have a deep familiarity with the tough constitutional issues regarding detention, prisoner treatment and war powers.


Perhaps. We have no idea what her role in these decisions was. But to the extent that there was any role, it becomes a liability. For years — crucial years in the war on terrorism — she will have to recuse herself from judging the constitutionality of these decisions because she will have been a party to having made them in the first place. The Supreme Court will be left with an absent chair on precisely the laws-of-war issues to which she is supposed to bring so much.


By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to himself, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a presidency marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.

Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here.



Comment on Charles Krauthammer's column by clicking here.

Up

Archives

© 2002, WPWG