October
7, 2005
For Bush, A Retreat Into Smallness
By Charles
Krauthammer
WASHINGTON
-- 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.
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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, death penalty --
that properly belong to the elected branches of government. Conservatives
have opposed this arrogation of the legislative role and called
for the 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 U.S. 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' 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 the presidency, 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' 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 Article II powers of the president 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 terror -- 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 on which she is supposed to
bring so much.
By choosing a nominee
suggested by Senate Democratic leader Harry Reid and well known
only to George Bush, 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 man whose presidency is marked by a courageous willingness
to think and do big things, this nomination is a sorry retreat
into smallness.
©
2005, Washington Post Writers Group
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