Harriet Miers, Federalist #66, and the Importance of Process

The most discouraging part of the criticism against Harriet Miers is that it is being made with so little evidence on the table. There have been no hearings yet.

Some don’t want the hearings to even happen. They want the nominee withdrawn before she has a chance to be evaluated by the Senate (and the country). That isn’t fair and it isn’t good politics.

It’s one thing to withdraw a nomination because they nominee has been shown to have legal, ethical or professional problems. This has been the usual standard in the past for withdrawing a presidential nomination. Even so, the list of cabinet nominees withdrawn is pretty short (most of the nominees withdrawn in recent times coming in the Clinton administration.)

It is even shorter for Supreme Court nominees. Except for John Roberts (whose nomination was withdrawn to be associate justice in order to nominate him for chief justice) and Abe Fortas (who already an associate justice had his nomination to be chief justice withdrawn), you have to go way back to President Ulysses Grant to find the next most recent supreme court nominee withdrawn.

In other words, it isn’t a common event to have a high level presidential nominee withdrawn, let alone a supreme court nominee. To ask for it now, in the absence of scandal or improper conduct, is to further politicize the court nomination process. It also sullies a nominee’s reputation and name for unexamined reasons. If Harriet Miers’ nomination is withdrawn, in what forum can she reasonably be expected to give evidence to the nation of her character and competence?

To not like a nominee for this or that reason is a fair basis for asking one’s senator to reject a nominee. But, it’s not wise or right to ask that a nominee be withdrawn before his or her merits can even be considered. The framers thought merit should be the measure for a nominee. (Federalist #66*) They believed the “advice and consent” procedure in the Senate would be a reasonable way to measure merit. Their position has been, if not glowingly confirmed, at least substantively confirmed by the nomination process for the last two centuries.

It is right to be wary of someone we don’t know yet. There are lots of questions that should be answered even by people we think we know. That’s why there is a confirmation process. But, if the argument turns to rejecting the very process of evaluation for this or that nominee (except under exceptional circumstances of scandal or demonstrated professional incompetence), the Republic, as well as the nominee, is in trouble.

*It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.