Supreme Court justices shouldn't be confirmed under a cover of darkness

President Bush said Tuesday that he wants the U.S. Senate to confirm Harriet Miers to the Supreme Court of the United States by Thanksgiving. At the same time, the president indicated he will not share with the Senate White House documents that might give some insight into her judicial philosophy.
Protecting executive privilege and fast-tracking the confirmation of a nominee about whom very little is known may not be mutually compatible.
"I just can't tell you how important it is for us to guard executive privilege in order for there to be crisp decision-making in the White House," the president said when asked if he would approve release of documents from the White House about legal work Miers has done for the president. Perhaps the president should have done that calculus before he nominated an attorney with essentially a blank slate to the Supreme Court.
The advantage of sending a blank-slate nominee to the Senate is that there is not much the senators can read into it. The disadvantage is that conscientious senators are going to keep searching among the scratches on the slate for some kind of message. Searching. And searching. And searching.
Which is not only their right, it is their duty.
One man's trust
Obviously Miers has earned the president's trust over the years, both during her service to his administration in Texas and as a deputy and legal counsel in the White House. But having earned good favor with the president is not the only qualification for appointment to the Supreme Court.
As we have noted before, a justice receives a lifetime appointment to one of the most powerful and influential positions in the government. While the president has the power to nominate, the Founding Fathers gave the Senate the power to confirm or deny the appointment.
President Bush's election was not by so great margin that he should think he has a mandate to place whomever he wants on the Supreme Court. It is not unreasonable to suggest that the person who replaces Sandra Day O'Connor, a consensus-building justice for much of her tenure, has at least the potential for being open minded.
Who controls courts?
Conservatives like to act as if the federal judiciary is in the grips of a liberal cabal with no respect for the Constitution or the American way. In fact, most federal judges on the bench today were appointed by Republican presidents, including the judges who control well over half the 13 circuit courts. Seven of the nine justices on the Supreme Court were appointed by Republicans.
Such catch phrases as "strict constructionist" and "legislating from the bench" are just that, phrases. Conservatives are just as prone to bend the law to their own ends as are liberals, depending on the stakes at hand. Which is why senators must be free to inquire into a nominee's background, record and judicial inclinations.
John Roberts was confirmed as chief justice after hearings in which he wowed senators with his ability to talk around a subject. Much of Roberts' track record, however, was visible to the public, and that record indicated that Roberts was of the same general philosophy as the man he was replacing, William H. Rehnquist.
Republicans and Democrats, conservatives and liberals need to know a lot more about Harriet Miers before she is confirmed to the highest court in the land. President Bush should not only understand that, he should appreciate it and respect it.