Conservatives have been inquiring about Harriet Miers' judicial philosophy; perhaps they also ought to be focusing on the Senate's confirmation philosophy.
I have been arguing in this space that critics of the Miers' nomination should make clear the applicability of their criticism. That is, it is one thing for them to criticize President Bush on the appointment (I have myself), even to the point of urging him to withdraw it if they choose. But if their advocacy fails, they better think twice before they lobby the Senate to reject her nomination.
I have contended that the Constitution's Advice and Consent clause does not give the Senate coequal power over judicial and other appointments. Some people I respect have taken issue with my assertion that these nominations are a matter of the president's prerogative and that the Senate must confirm unless the nominee is unqualified or of unfit character.
UCLA law professor Stephen Bainbridge notes that "In government, prerogative powers refer to those powers vested solely in the executive," like the pardon power, recess appointments and a few others.
Fair enough. The term "prerogative" may well be an overstatement. I didn't mean to suggest that the Senate was to be merely a rubber stamp, as I clearly stated the Senate's role was to assure the nominee had the requisite qualifications and character.
But Professor Bainbridge's disagreement with me goes beyond semantics. He rejects my contention that the Senate's role should be limited to vetting the nominee's qualifications and character. He cites a few constitutional scholars, like John McGinnis, who have argued that the Constitution empowers the Senate to confirm or reject nominees for any reason at all. "Nothing in the text of the clause appears to limit the kind of considerations the Senate can take up."
Bainbridge writes, "To be sure, as McGinnis notes, Alexander Hamilton thought the Senate could only reject a nominee for 'special and strong reasons,' but that qualification is nowhere in the Constitution."
But doesn't an "originalist" approach to constitutional interpretation oblige us to inquire what the Framers understood the meaning of "Advice and Consent" to be? Surely Hamilton's Federalist 76 cannot be dismissed so casually if it gives us some insight as to the Framers' original understanding.