The Senate's Role

When the Founders wrote the Constitution, they had the foresight to see that those put in positions of power would, like anyone else, be flawed. They further saw the potential for these flawed men to severely damage the Republic if their power was without limits. As such, they established a system of checks and balances that ensured that no one branch of the government could enjoy too much power over the other two. In this system, the President is empowered to nominate men and women to the Supreme Court. As such, he is entitled to a good deal of deference from the Senate. The Senate is not a co-nominator. Even so, the Senate has a role in ensuring that the President selects qualified nominees for service on the federal bench. In this case, the Senate must exercise its authority to reject an unqualified nominee.

The nomination of Harriet Miers is precisely the type of appointment that the Founding Fathers had in mind when they determined that the Senate should have to confirm the President's nominees. It is amazing to anybody who has been paying attention that the President managed to keep a straight face Tuesday morning when he said that Miers was the most qualified person for the position. Clearly, there were several more qualified nominees at the President's disposal: Judge Michael Luttig, Judge Samuel Alito, Judge Janice Rogers Brown, Justice Maura Corrigan, and Sen. Jon Kyl to name a few. It is impossible and unnecessary to say who would be the "most qualified" nominee, but it is easy to say that it is not Ms. Miers. In fact, she is not qualified.

On what is this statement based? There are a few simple criteria that should be used to determine whether a person is qualified to serve on the Supreme Court. While not an exhaustive list, this is a rough guide:

1. Has the person demonstrated superior legal intellect?
2. Does the person's record demonstrate a respect for the limitations placed on the Court by the Constitution?
3. Does the person's record demonstrate a respect for the limitations placed on the other branches of government by the Constitution?
4. Does the person's record demonstrate that he understands that the Constitution must be applied as written rather than as the person might want it to read?
5. Does the person's record demonstrate a proper understanding of judicial restraint, including the fact that any past decisions of the Supreme Court that departed from the Constitution exceed the Court's authority, are illegitimate, and are unworthy of respect?

For Ms. Miers, the answer each of these questions is clearly "no". Ms. Miers may well be a very nice woman. She may be highly intelligent. She may be a judicial conservative. She may be a strict constructionist. She may not be any of these things.

The federal government has only three branches and the Supreme Court has only nine members. It is far too risky to confirm a nominee who has shown none of the qualities mentioned above. Doing so would a) send a message that judicial conservatives need not apply, b) lower the bar for the Supreme Court, c) render the Senate irrelevant in the selection of Supreme Court nominees, and d) place someone who has not demonstrated the above qualities on the Court.

If you agree, please take a moment to contact the following conservatives on the Senate Judiciary Committee and ask them to oppose the confirmation of Harriet Miers: Sen. Sam Brownback, Sen. Tom Coburn, Sen. Jon Kyl, and Sen. Jeff Sessions.