Sunday, May 17, 2009

Supremes fight: make it over the Constitution

According to this news story, observers expect a vigorous battle over Pres. Obama's Supreme Court nominee, whoever it may be. I think it would be a mistake to make it either personal or bitter. As I suggested in my piece a couple of weeks ago (which highlighted pretty much the same cast of probably top candidates), the most useful thing the Republicans could do would be to ask questions about constitutional interpretation that clearly establish them as limited-government constitutionalists. If the nominee has a more expansive view of the powers the constitution grants to different branches of government, they should ask pointed questions as to why, and demand a justification for interpreting the constitution to grant more power than the plain words seem to grant, especially to the executive branch, which has grabbed power shamelessly under both parties for the last 70 years or so.

Having made the recommendation, I seriously doubt it will happen. To be fair, Roger Pilon of the Cato Institute fleshed out the idea in more detail when I talked to him in preparing my piece. But he also said that his experience when testifying before congressional committees was that the Republicans were generally ill-prepared and could ask only the most general questions, questions that didn't betray much knowledge of subtleties or nuance. In addition, Republicans since Reagan have (generally, noit universally) become cheerleaders for a powerful executive, especially under Bush, with the notion of the "unitary executive." Politicians are fully capable of doing a 180 on almost anything, of course, but I doubt if many in Congress have the sophistication to do it credibly.

Too bad. The Supremes hearings will be the first time most of the public will have heard much more than sounbdbites from Republicans since November. A smart, principled-sounding performance could restore a modicum of credibility. But both parties are pretty much hopeless in these days of imperial decadence.

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