A Confirmation Debate
in Reverse
EDITORIAL, NYTimes on
the Web, October 11, 2005
The nomination of Harriet Miers to
the Supreme Court has turned the usual partisan debate about judicial
nominations inside out. Republicans have insisted for nearly five years
that the president should have broad discretion in choosing judges. Now,
charter members of the hurry-up-and-confirm-them crowd, like Senators Sam
Brownback, Republican of Kansas, and Trent Lott, Republican of Mississippi, are
already talking about voting no, even before Ms. Miers's confirmation hearings
have begun. The same conservative legal groups that held rallies attacking
Democrats for resisting the president's choices for the bench are now talking
about blocking a Bush nominee.
During the Bush era, another constant of the confirmation process has always
been the Republicans' resistance to Democrats' attempts to learn more about
nominees, either by getting hold of documents or questioning them vigorously at
their hearings. Now it's the Republicans who are demanding more
information. After Ms. Miers visited with Mr. Brownback last week, he
complained that she would not give her views on a key Supreme Court privacy
ruling and indicated that he might vote against her.
Republicans are also complaining that Ms. Miers got her appointment based on
cronyism. It is a legitimate concern, but a new one for many of the people
raising it now. Republicans had no objections when President Bush
nominated Brett Kavanaugh, an administration operative, to the powerful Court of
Appeals for the District of Columbia Circuit. Mr. Kavanaugh, a principal
author of the Starr report, was 38 at the time, and had remarkably little
experience trying cases. Republicans also eagerly rallied around the
nomination of Thomas Griffith to the same court, even though he had practiced
law without the required licenses in two different jurisdictions.
If Ms. Miers's nomination has caused Republicans to suddenly acquire standards,
it may be causing Democrats to forget theirs. Many appear to have
calculated that Ms. Miers would be a more moderate justice than anyone the Bush
administration would nominate if she were defeated. Perhaps as a result,
Senate Democrats have been remarkably restrained about criticizing Ms. Miers's
close ties to the president and the thinness of her résumé.
Even if the timing is politically opportune, it is still refreshing to hear
Republican senators talk about the importance of judges' being highly qualified,
and about their own obligation to question the president's nominees closely,
including about their views on specific legal issues. That is how judicial
confirmations are supposed to work, no matter which party is doing the
nominating. The Senate should conduct a serious and thorough review of Ms.
Miers's record and her qualifications for the job -- and then do the same for
every judicial nominee who follows her.
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