My closest crony and I had precisely the same reaction to George Will's column yesterday (see previous post). However, as I am on deadline and haven't time to put it in words, I'll yield him the floor.
On Sunday George Will threw more brickbats at Harriet Miers. One has to wonder whether he thinks Miers is even more incompetent about America's constitutional history than he is. Will writes:
As Miers's confirmation hearings draw near, her advocates will make an argument that is always false but that they, especially, must make, considering the unusual nature of their nominee. The argument is that it is somehow inappropriate for senators to ask a nominee -- a nominee for a lifetime position making unappealable decisions of enormous social impact -- searching questions about specific Supreme Court decisions and the principles of constitutional law that these decisions have propelled into America's present and future."Why, then, have hearings? What, then, remains of the Senate's constitutional role in consenting to nominees?
The claim that the Senate can't knowledgeably consent to nominees to the Supreme Court without their appearing as witnesses to be cross-examined by the Judiciary Committee is historically absurd. For the first 150 years under this Constitution --until 1939-- 80 Supreme Court nominees were confirmed but not a single one appeared before the Senate Judiciary Committee. In 1939, Felix Frankfurter appeared just to introduce himself -- no questions. In 1945, President Truman nominated Sen. Harold Burton, who was confirmed by the full Senate unanimously on the same day! As late as 1962, President Kennedy's nominee Byron White was asked a total of six questions.
The fact that the generation of the Framers of our Constitution did not envision potential Justices testifying to the Senate of course did not prevent furious debates about their qualifications; the Senate does not seem to have thought itself disabled and indeed rejected more than a few nominees they considered unqualified -- often for political rather than legal reasons.
For example, Roger B. Taney, Jackson's Attorney General, was defeated as Associate Justice by the full Senate, led by an unlikely alliance of Webster, Clay, and Calhoun, in March, 1835.
If Will wanted to be serious, he would think through the reasons why the Senate until not long ago thought it was unseemly and perhaps unconstitutional to subject potential Justices to cheap questioning and Senatorial demagoguery under the TV cameras.
He would ask what has happened to the quality of constitutional jurisprudence since a gaggle of partisan Senators have taken it upon themselves to compel future Justices to make political commitments ahead of time rather than simply deciding cases and elaborating their understanding the Constitution's meaning in their opinions.
He would even have to ask whether nominees questioned by the Committee are under any obligation to answer the questions of a legislative committee whose authority to ask such questions is doubtful and arguably harmful to the Constitution's design for an independent judicial branch. The Senate's own official publication, The Constitution: Analysis and Interpretation, points out that when the Senate confirms a Presidential nominee to any position, the confirmation cannot carry conditions with it, such as "confirmed under the condition that the nominee will do such and such..." Confirmation votes are absolute.
Thinking that through regarding Justices, it logically means that Justices are perfectly free to say whatever they wish to the Committee during hearings and then later on the Court, they are just as free to change their minds whether because warranted by the facts of a case, or because of maturing constitutional views, or because of dyspepsia. [I have a recurring fantasy in which a controversial Conservative nominee appears before the Court and sings the popular hymns to privacy and substantive due process before winking and concluding, "But Senator, I reserve the right to revise and extend my opinion when presented with the actual facts of a case." --Ed.]
In short, Will could provide us with a valuable service by re-examining the whole issue of Senatorial inquisitions of presidential nominees to the courts and why they were not subjected to questioning until recent times.
Me again. I don't care much about Harriet Miers, but wouldn't it be nice if our putatively Conservative observers could think outside the proverbial box provided by Liberal Law Schools when it comes to the Courts? Sigh.
