Advice, Consent, and Shame

Updated: Now that the Miers nomination has been withdrawn, perhaps we are seeing the principle discussed below in action after all...


Randy Barnett maintains that the prospect of the "Advice and Consent" process should prevent prospective Supreme Court Justices like Harriet Miers from ever being nominated. Quoting Alexander Hamilton from Federalist no. 76:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

What Barnett fails to see, I think, is that this is sufficient reason to give the President the benefit of the doubt. Since we have an "Advice and Consent" process, and the Senate would be in a position to shame the President, I would think that he sees a qualified candidate in Miers. If not, why would he lead the both of them to certain embarassment? I don't know whether she's a good nominee. But if the President vouches for her, that's a good reason for us to suspend judgment until she has the chance to make the case for herself.