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10 October 2005 @ 01:46 am
checks and balances  
daveseeker and I were talking about the wisdom of two separate branches of government being involved in the process of selecting and confirming Supreme Court nominees. Since the majority of nominees are confirmed with a fairly minimal challenge he maintained that it didn't seem to do any good. I said the main function of having the Senate involved in the process was that the president would be somewhat constrained to at least try to choose someone qualified or else it would be very difficult to get his nominee confirmed. So even before the candidate goes before the Senate the process has already started to work, and their questions and debates are often almost a formality.

Perhaps because it usually works so well it didn't occur to Bush that anyone would genuinely challenge his own choice even if he picked another crony so soon after the FEMA fiasco. He forgot the part about choosing someone carefully enough that the confirmation process would be a formality. Or perhaps he never understood it sufficiently to begin with.

In any case, Andrew Sullivan today went back to The Federalist Papers for some words of wisdom about how this is supposed to work and why the legislative branch is involved:


To what purpose then require the co-operation 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.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

From the Federalist papers, no. 76.

The liberals have been fairly quiet about Miers, it is of course the conservatives who are anxious about her lack of public stance regarding constitutional issues they are most concerned about. I think liberals are pretty much resigned to a Bush pick being someone who will vote at the earliest opportunity to overturn Roe v. Wade. That will of course throw the issue of abortion open to votes in state legislatures. Most blue staters will have abortion rights, some red staters will lose theirs and do a bit of traveling. Perhaps we will pump funds for travel into Planned Parenthood so poor women will continue to have access. However we handle it, I think we are braced for it.

But the conservatives have yearned for its reversal for many years now, and mobilized their base in the last election in large part over issues like abortion and gay marriage, and they are shocked and dismayed that their president hasn't given them an obviously solid candidate for the Supreme Court with a written record of decisions indicating a shared view on abortion rights. The fact that he chose a crony and wants them to just take his word for her beliefs seems to enrage them.

It's interesting to sit back and watch but I hope that Democrats won't rubber stamp this nominee just because they enjoy the conservatives dismay over her. I think it is important to have a candidate that actually has a backgound in contitutional law, even if it's one I don't like. This is the third branch of government we're talking about, after all. We can expect many important decisions in the next decades, as we run into ethical decisions about scientific advances, technology and the invasion of privacy, the continuing trend of megaconglomerates controlling our communications industry, and a number of challenges in the social realm. Shouldn't we have the best people we can find on the Supreme Court of the land? Not just another of Bush's good friends?


Russ Feingold advocates setting a date and some clear benchmarks along the way to withdraw from Iraq. In a Salon interview he talks about why setting a date for a military withdrawal will help defuse the opposition to our occupation and help stabilize Iraq. He also talks about how the Democratic Party lost its message starting in the 2002 elections which affected the 2004 elections as well. I highly recommend reading the interview--there are simply too many good quotes to pull out just one for this entry.