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Jewish World Review Oct. 24, 2005/ 21 Tishrei, 5766

Nat Hentoff

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Republicans' Rebellion | President George W. Bush's controversial and highly questionable nomination of Harriet Miers to the Supreme Court has been attributed, according to some of his conservative critics, to "cronyism." But others claim that he chose her in the hope of avoiding a bitter confirmation battle — possibly even a Democratic filibuster — which may have happened if he chose a nominee who would clearly provide a "swing vote" to turn the Court firmly to the right. As Lionel Barber of the Financial Times put it, the president intended "to duck the fight."

But syndicated columnist George Will, an independent conservative — in his scathing column, "Can This Nomination Be Justified?" — cut to the core of the president's misjudgment: "He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections."

On the basis of the Bush administration's revisions of the Bill of Rights in the Patriot Act — including allowing the FBI to write its own subpoenas in national security letters without judicial supervision — I think it is fair to say the president is not an engaged student of the Constitution.

I doubt that his current bedtime reading includes the remarkably lucid and comprehensive "America's Constitution: A Biography" by Yale University law professor Akhil Reed Amar or his previous book, "The Bill of Rights: Creation and Reconstruction." As Harvard law professor Alan Dershowitz says of this chronicler of our national identity, "he writes like Jefferson, thinks like Madison, and speaks like Lincoln."

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If I had my own philanthropic foundation, I would send a copy of "America's Constitution" to every member of Congress. And in light of Senate Judiciary Committee Chairman, Sen. Arlen Specter's advice to Harriet Miers — "She needs a crash course in constitutional law." — the White House would be well advised to provide her with both of Amar's books.

As for the "cronyism" complaint about this nomination, Lionel Barber underlined its merit when he turned to an 18th-century guide to the intentions of the framers of the Constitution — The Federalist Papers. Referring to one of Alexander Hamilton's contributions to the Federalist Papers concerning the Senate's advice-and-consent role in federal judicial nominations, Barber wrote:

"Hamilton said Senate confirmation would be an excellent check against a 'spirit of favouritism' in the President. And he warned against candidates who came from the same state, those who were 'personally allied' to the president or whose pliancy would render them 'obsequious instruments of his pleasure.'"

The greatest gaffe done so far by those whom the White House appointed to defend the Miers' nomination was by former Sen. Dan Coats (R-Ind.), who is in charge of navigating the nominee through the confirmation process. In answer to those critics claiming Miers lacks the recently demonstrated constitutional knowledge of John Roberts, Coats guaranteed himself a footnote in future studies of nominations to the Supreme Court by saying:

"If great intellectual powerhouse is a qualification to be a member of the court and represent the American people, and the wishes of the American people, and to interpret the Constitution, I think we have a court so skewed on the intellectual side that we may not be getting representation of the American people as a whole."

I rather doubt that the current Supreme Court is that heavily skewed toward intellectual firepower — compared to Louis Brandeis and Hugo Black — but Coats' odd tribute to Harriet Miers inevitably led to commentators of a certain age resurrecting the famous quote of the late Republican senator from Nebraska, Roman Hruska, who defended President Richard Nixon's nomination of George Harrold Carswell (rejected by the Senate) Sen. Hruska said, "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?"

I agree with the conservative criticism that if the president had nominated a highly qualified conservative to the Supreme Court this would have been "a teaching moment," creating a badly needed national educational debate on the Constitution itself. But, alas, this moment only reveals, once more, that the president himself needs a crash course on the Constitution — and on the qualifications of those on the Supreme Court who have the heavy responsibility of interpreting it.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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