- The Washington Times - Wednesday, October 19, 2005

Conservatives have asked about Harriet Miers’ judicial philosophy. Perhaps they also should focus on the Senate’s confirmation philosophy.

I have argued critics of the Miers’ nomination should make clear their criticism’s applicability. It is one thing to criticize President Bush on the appointment (as I have), even to the point of urging its withdrawal. But if their urging fails, they better think twice before they lobby the Senate to reject her.

I have contended the Constitution’s Advice and Consent clause gives not the Senate coequal power over judicial and other appointments. Some people I respect have taken issue with my assertion these nominations are the president’s prerogative, that the Senate must confirm unless the nominee is unqualified or of unfit character.

University of California-Los Angeles Law Professor Stephen Bainbridge notes: “In government, prerogative powers refer to those powers vested solely in the executive,” like the pardon power, recess appointments and a few others.

Fair enough. “Prerogative” may well overstate the matter. I didn’t mean to suggest the Senate was meant to provide a mere rubber stamp: I clearly said the Senate’s role is to assure the nominee has the requisite qualifications and character.

But Mr. Bainbridge’s disagreement with me goes beyond semantics. He rejects my contention the Senate role should be limited to vetting qualifications and character. He cites a few constitutional scholars, like John McGinnis, who have argued the Constitution empowers the Senate to confirm or reject nominees for any reason at all. “Nothing in the text of the clause appears to limit the kind of considerations the Senate can take up.” Mr. Bainbridge writes, “To be sure, as McGinnis notes, Alexander Hamilton thought the Senate could only reject a nominee for ‘special and strong reasons,’ but that qualification is nowhere in the Constitution.”

But doesn’t an “originalist” approach to constitutional interpretation oblige us to inquire how the Framers understood “Advice and Consent”? Surely Hamilton’s Federalist 76 cannot be dismissed so casually if it offers insight into the Framers’ original understanding.

Hamilton wrote: “To what purpose then require the cooperation of the Senate? I answer, that the necessity of their concurrence would have a powerful though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”

That section and others tend to support my — and Mr. McGinnis’ — contention Hamilton, at least, thought the Senate could only reject nominees for “special and strong reasons.” Hamilton definitely was concerned about so-called “cronyism,” but I think precisely because he believed cronyism, absent a check in the Senate, might lead to appointment of an unqualified or unsavory character.

Mr. Bainbridge also said that, “in effect,” I urged Miss Miers’ critics “ought to shut up because said nomination was a matter of ‘presidential prerogative.’ ” Just for the record, I most emphatically did not urge Miss Miers’ critics to shut up. Again, I merely urged them to consider the difference in criticizing the president’s nomination and urging the Senate to reject her.

If conservatives press the Senate to reject her, they better do so on grounds consistent with those they’ve used before to urge rejection of judicial nominees and those they would like to see used again. Whether my relatively narrow view of “Advice and Consent” is correct or not, I believe I can safely say conservatives in practice have given it de facto credence.

If Republicans thought they could properly reject the president’s judicial nominees for political reasons alone, or for judicial philosophy, they’ve done their best to prove otherwise. How else do you explain their overwhelming affirmation of the radically liberal and activist Ruth Bader Ginsburg?

By contrast, since Judge Robert Bork’s nomination, Democrats have often — though not always — rejected qualified nominees purely because of politics and judicial philosophy.

If Republicans continue construing “Advice and Consent” more narrowly than Democrats, they’ll continue losing because Republicans will confirm otherwise qualified but liberal activist nominees, and Democrats will reject qualified constitutionalists.

Indeed, if the Bainbridge-McGinnis formulation is correct, as it may be, shouldn’t someone get word to Senate Republicans? Isn’t it time they developed a coherent “confirmation philosophy”? Otherwise, they’ll guarantee themselves a perpetual disadvantage on judicial confirmation, among the most important areas for our republic’s future.

David Limbaugh is a nationally syndicated columnist.

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