Miers’ beliefs pertinent in hearings

The ink was barely dry on the Constitution when the U.S. Senate voted in 1795 on whether to appoint John Rutledge as the next chief justice of the United States.

A distinguished son of the Revolution and the chief justice in his home state of South Carolina, Rutledge had the pedigree and the experience, never mind the backing of that most notable founding father, President George Washington.

But he didn’t have the votes. The Senate rejected the nomination largely because of Rutledge’s public stand against the Jay Treaty, a controversial pact that averted a war with Great Britain. “In turning down Rutledge,” says the official congressional history, “the Senate made it clear that an examination of a nominee’s qualifications would include his political views.”

Two centuries later, it is disingenuous for senators now to say that probing a judicial nominee’s political views is somehow outside the confirmation process. Not only that – it’s flat-out untraditional.

Citizens like you and I have every right to know the background, values, influences and opinions that helped shape the person Harriet Miers is today. That’s not a “litmus test,” and we’re smart enough to know the difference.

Only we can’t ask her directly; the members of the Judiciary Committee are supposed to do that for us. To permit this Supreme Court nominee, or any other, to skate through confirmation hearings for one of the most powerful jobs on the planet without an honest accounting to the American public flouts the very process senators are sworn to uphold.

So far, the White House’s elaborate effort to signal Miers’ true feelings on a host of constitutional issues without actually saying anything is beginning to resemble a Kabuki dance. Understandably. It may well be that Miers’ views on key constitutional issues won’t resonate with a majority of the American public.

Seats on the nation’s highest court should, of course, never be subject to a popularity contest. If the Senate pulled a Rutledge today – denying confirmation based on a single stand on a controversial issue – there ought to be hell to pay at the next election.

That’s why so many public officials promise us that they will not hold the nominee to a litmus test. Such a standard would be a test of ideological purity, a way of finding out whether a person is a true-blue liberal or a bright-red conservative.

No nominee should be subject to that because it negates the reason to have an independent judiciary in the first place: to make judgment based only on the facts as they are presented and argued, while taking into consideration constitutional values and legal precedent. One’s ideology need not dictate one’s assessment of the law.

This is why we can have judges ardently in favor of abortion rights who think that Roe v. Wade is really bad law, and judges who are personally and passionately against legalized abortion who believe Roe should stand because of legal precedent.

Even so, there are good reasons for asking about a nominee’s beliefs. While ideology does not inevitably predict how a judge will rule, it does give a general sense of that person’s leanings. Several studies of judicial voting behavior during the past 20 years have proved a basic point: Judges appointed by Democrats vote very differently from those appointed by Republicans on issues from affirmative action to criminal justice to the Commerce Clause.

Adding to that picture was a study released last year by the nonpartisan Environmental Law Institute, showing that federal judges’ political affiliations may be a decisive factor in determining the outcome of cases brought under the nation’s premier environmental law.

So suspend the Kabuki dance and start the jitterbug. We ought to get up close and personal in Harriet Miers’ confirmation process, especially given her lack of judicial experience and her behind-the-scenes work in the White House. The public, through the Senate, has a right to know more about a woman who is an open question in the minds of many Americans.