Every Supreme Court nomination poses a test of our common understanding of what the Constitution means -- and specifically our interpretation of the role assigned by that document to the U.S. Senate. This time, by sending up the name of a personal crony with few other qualifications -- and then suggesting that her fitness for the high court should be measured by her faith -- George W. Bush has publicly challenged the Senate to defend the Constitution and to fulfill the purpose assigned to them by the founders.
For senators who claim to uphold the framers' intentions, the president has left no choice but to reject Harriet Miers. Both her nomination and the covert campaign to win her confirmation are constitutional offenses that should be intolerable to the Senate.
When Bush first announced her selection, Miers was so little known outside the White House that the demurrals by conservative pundits sounded insular and ideologically extreme. Even when stated as objections to her scant record in constitutional law, the conservative complaints about Miers were initially suspect. Her sin seemed to be that she doesn't belong to the Federalist Society, she isn't a "movement conservative," and she may not prove to be a sufficiently predictable ally of Antonin Scalia and Clarence Thomas. In fact, the suspicions and bruised sensitivities of Washington's right-wing clique almost seemed like a positive recommendation.
As information about Miers emerged, however, the case against her took on greater substance, and the charge of unalloyed cronyism grew more convincing. Her fawning notes to Bush, her opaque and meaningless prose, her lack of judicial or scholarly qualifications, and her strange career in the White House, where she reportedly bungled her way up to the Office of Counsel -- all combined to create the impression of a woman chosen solely for her loyalty to the president.
Or perhaps that's just slightly unfair since -- in the estimation of Bush and his lieutenants -- the choice of Miers offered at least one other important advantage aside from personal fealty. At a time when the president is politically weakened, the easiest nominee to confirm might well be a female Republican with no paper trail and no known beliefs, opinions or prejudices. Even if the Democrats were inclined to resist her, how would they mount a filibuster against a cipher -- and especially a cipher who happens to be a woman?
Indeed, several prominent Senate Democrats have been tempted to embrace Miers as an acceptable alternative to the far right's favorite candidates for associate justice. Senate Minority Leader Harry Reid endorsed her publicly -- and a Democrat who sits on the Senate Judiciary Committee privately exulted last week about "how much worse [than Miers] we could have done."
In other words, mediocrity is better than extremism. For politicians in the partisan minority, such maneuvering can be wiser and more responsible than insisting on principle. Yet sometimes, circumstances arise that won't permit pragmatic compromise.
Suddenly, this is looking like one of those times.
In constitutional terms, the Miers nomination deserves to be rejected on grounds of cronyism alone, as conservatives and liberals alike have noted. Experienced as the nation's founders were with the misconduct of monarchs and their useless retinues, they anticipated that the president might be deterred from similar behavior only if required to seek legislative approval for important appointees. As the New York attorney Scott Horton and others have noted, Federalist No. 76 addresses this problem directly. In that paper, Alexander Hamilton predicted that the president "would be both ashamed and afraid" to appoint "obsequious instruments of his pleasure." No word better describes Miers than "obsequious."
Preventing the elevation of meagerly qualified job seekers and nominees is among the Senate's most basic responsibilities. The world's oldest deliberative body has clearly neglected this function during the Bush era. Such business as usual might have continued in this case, except that the president and his advisors have now moved beyond cronyism with an even more serious and blunt affront to constitutional standards.
By seeking to convince leaders of the religious right to support Miers because of her religious affiliations, the White House overstepped a boundary that the founders held sacred. Using her conservative evangelical church to persuade James Dobson to back her, as Karl Rove did, was bad enough. But for Bush to suggest to those same theocratic politicos that her religion is among her qualifications is simply unacceptable and indelibly taints her nomination.
In Article VI, the Constitution plainly states that "no religious test shall ever be required as a qualification to any office or public trust under the United States." That same article demands all senators and representatives to be "bound by oath or affirmation to support this Constitution" -- which means rejecting the latest symbol of Bush's contempt for that document.
Initially, many observers expected Miers to be confirmed fairly easily, and perhaps she still will be confirmed. But when 90 senators passed an anti-torture amendment added to the defense appropriations bill, despite Bush's veto threat, they encouraged hope that they may yet restore senatorial independence and integrity.
This is the second instance when a president named Bush has foisted an unimpressive Supreme Court nominee on the nation, abusing "diversity" while implausibly claiming to have chosen the best possible nominee.
The first time was the elevation of Clarence Thomas, which turned into a kind of tragedy. And now, accompanied by bogus accusations of sexism and conservative fratricide, the promotion of Harriet Miers is quickly becoming a farce.