Bench Memos

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On Prudential Judgment


Ed Whelan says that it’s now time for those of us who desire a “sound legal culture” to “try to make a prudential judgment whether it is better that her nomination be confirmed or be defeated” and then act accordingly. Sorry, but I respectfully submit to Ed that we–I anyway–have too little information to make such a judgment this early. I’m waiting for the hearings, as is Senator Sam Brownback, who said this yesterday: “I’m reserving judgment on this nominee until I have a fuller portrait . . .” Brownback added that she might turn out to be just fine, which is what I think too.

Jonathan Adler has the virtue of consistency, sticking to his previously expressed view that presidents deserve some deference to their Court appointments, and holding that there are no “sufficient, or even reasonable, grounds for seeking [Miers's] defeat in the Senate at this time.” Ed’s view is similar, weakly in favor of the pick, as he tepidly declares that it is “certainly not my judgment” that her nomination “go down in flames.”

I cannot take this presumption, that a president’s picks for the Court are worthy until shown to be otherwise, as a principle. It is certainly not a constitutional principle, grounded in the text, the founding debates, or reason and the nature of things, that the Senate (or the public) should take the president’s prerogative to begin the process with a nomination as establishing some rebuttable presumption in favor of its approval. The Senate has its own constitutional responsibilities, and is entitled in every case to scrutinize a nomination “from the ground up,” so to speak. Not only entitled, but positively enjoined to do so, if the constitutional principle of checks and balances has any significance. The case would be different for executive branch appointments, but this is the third branch, filled by the joint action of the first two and then largely freed from the control of either.

I can’t even take Ed and Jonathan’s apparent deference as a partisan principle, good when presidents of one’s own party are in office but abandoned when the other guys are in. I am willing to take it as a rebuttable presumption that a president’s nominee is worthy of confirmation only when the facts of the case at hand support that presumption as an obvious preliminary judgment. Think of it then as a shortcut to prudential judgment, or a time-saving device. In John Roberts’s case, the nominee was so obviously up to the job, in learning and experience, that the burden of proof was reasonably placed on his opponents to disprove that initial judgment. (I still wanted a certain candor on his constitutional thinking that was not, in the end, forthcoming, which is why I’m still not certain whether I am fully reconciled to the fait accompli of the Roberts Court.)

In the case of Harriet Miers, the preliminary judgment cannot be in favor of her suitability for the Supreme Court, especially when she is compared to others whom the president might have nominated. She may prove it to the public and to the Senate in the coming weeks. But I think the burden is on her and the administration to argue that case. They must appeal to our prudential judgment. Mine is in abeyance until they do, but with the rebuttable presumption working against her, not for her. Nobody in the Senate is asking my advice–as many will no doubt be glad to know–but if anyone were, that’s what it would be.


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