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by Archives November 2, 2005

Now that Harriet Miers has withdrawn her nomination to the U.S. Supreme Court and Justice Samuel Alito has replaced her, Senators and lobbyists for both parties are digging in for the confirmation fight.

But the battle over this nominee is only part of the story. The real debate, the one Bush was trying so hard to avoid when he nominated Miers, is about the role of the Supreme Court in a Constitutional Democracy.

Both Republicans and Democrats readily admit that one of the main reasons Miers was nominated in the first place is the absence of a paper trail to document her judicial philosophy. While her lack of experience on the bench appeared at face value to be a weakness, it was actually a kind of strength because it made it difficult for Democrats to parse her record for decisions and statements to criticize. This “stealth candidate” status has become as important for Supreme Court nominees as their actual qualifications, or in Miers’ case, the lack thereof.

By nominating Miers, Bush was trying to sneak an unknown social conservative onto the Supreme Court without the fight that choosing a well-known and better-qualified Federal judge like Michael McConnell or Michael Luttig would have provoked. Because McConnell and Luttig have been outspoken conservatives as well as judges for many years, there’s a wealth of controversial rulings and statements for the Democrats to attack. Miers’ blank slate seemed a safer bet.

But her lack of experience worried Bush’s conservative base and the White House feared she would be unable to demonstrate a good grasp of Constitutional law during her confirmation hearings. After stonewalling opposition from both parties for as long as they could, the Administration finally gave up on the stealth option, nominating Justice Alito, a well-respected conservative judge, but one with a paper trail.

By nominating someone with no background in Constitutional law and no experience as a judge to the highest court in the land, Bush showed that he was willing to sacrifice qualifications for convenience. He chose a loyal supporter over a legal scholar in one of the most consequential and long-lasting decisions a President must make. But it also showed how politicized the Supreme Court has become, when a nominee’s political beliefs are more important than their knowledge of the law.

Democrats want to stack the Supreme Court with liberal Justices, ones who support their positions on issues such as abortion, affirmative action and the role of religion in public life, while Republicans want Justices who will rule in their favour on those and other issues. The end result is a high-stakes game of chicken where both sides try to put their political allies on the bench without being too obvious about it.

Both Republicans and Democrats seem to have forgotten that Supreme Court Justices are not supposed to analyze issues according to their political affiliation. That’s the job of the Congress and Senate, whose members are elected to represent the political and social views of their constituents.

The nine Justices aren’t even supposed to decide cases based on their own consciences. While each one of them probably has very developed views of what’s right in principle and for the country, however brilliant and enlightened those views may be, they aren’t supposed to have any bearing on the Supreme Court’s deliberations.

There is one and only one thing for a Supreme Court Justice to judge by in a Constitutional Democracy, and that is the Constitution itself. Their job consists of upholding or striking down decisions made by lower courts, and laws passed by the legislative and administrative branches, based solely on whether or not they agree with the Constitution.

The Constitution wasn’t written by Democrats or Republicans, liberals or conservatives. It was written by a small group of men who had a deep-seated mistrust of all powerful people and groups. They believed that whoever ruled America would do anything in their power to subvert the Constitution to their own ends, so they created the Supreme Court to act as the impartial defenders of the Constitution against ambitious parties and their Presidents.

The Founding Fathers’ cynicism seems both justified and prescient now that both parties appear intent on twisting the Court into just another tool for achieving their political goals.

Neglected Story of the Week: The long-awaited Gomery report about the sponsorship scandal was released Tuesday morning. While journalists will no doubt spend lots of time discussing who’s most guilty among the many Liberal insiders implicated, and what penalties they should pay, there’s a brand-new scandal right under their noses.

Why did a supposedly independent inquiry release its findings to the party it was charged with investigating 12 hours before the opposition and the media received them? That’s what happened, as Prime Minister Paul Martin’s office received an advance copy of the Gomery report, allowing them to prepare their responses to any damaging findings. Even worse, the PM’s insiders claimed they knew Martin wouldn’t be implicated because he hadn’t received a “warning letter” in advance of the advance report.

The whole Gomery Commission looks more and more like just another damage control apparatus in the service of the Liberal Party. That the Liberals would gloat so openly about their advance knowledge of the report’s findings seems to suggest an all-too-close relationship between the Federal government and the Commission itself. Wasn’t this the kind of cozy relationship that the Gomery Commission was supposed to investigate in the first place?

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