Miers was one of the Nuclear Option biggest advocates

Miers has already put Bush above Constitution, on her promotion of the illegal, unethical and unconstitutional "nuclear option" where the Senate minirity is barred from doing anything to curb simple majority -- law

Nuclear Option returns home to roost
by Kagro X

..[Miers] the president's nominee for the Supreme Court ..was a champion of the nuclear option:

Notably, [RNC Chairman and former White House political director Ken] Mehlman says that within the White House "she was a strong voice for the Constitutional option," otherwise known as the nuclear option that would have changed the Senate's rules to require a simple majority vote to break the Democrats' filibuster of judicial nominees.

Looking back on this, I can't imagine how it couldn't have been the case, nor why I should be so surpised to learn that it is. But it is. And that's a problem.

Recall that the nuclear option is predicated on the notion that it is the requirement that the Senate provide its "advice and consent" to presidential nominations (for executive as well as judicial positions, though the GOP continues to ignore that glaring constitutional inconsistency in their thinking) that makes the filibuster "unconstitutional." A nominee for the Supreme Court who was a strong supporter of the nuclear option would therefore have to read the Constitution as saying instead that the Senate's duty is one of "advice and voting," since what Bill Frist in his vernacular calls the "upperdownvote" is the only method by which they believe "consent" may be manifested. Reading the Constitution this way leaves no room for the withholding of consent, which may be manifested either by a negative vote on the nomination, or the lack of any vote at all. Consent, of course, may only be manifested by a positive vote. Surely it was not the intention of the founders to waste good Constitutional real estate on mandating that the Senate be a rubber stamp for such appointments. The Federalist makes it abundantly clear that this is not the case. This is simply a fool's reading of the Constitution.

Recall also that the nuclear option, as it was envisioned by Bill Frist, required a flagrant disregard for precedent, and for a Supreme Court Justice, that spells trouble. By tradition and precedent, the presiding officer of the Senate cannot rule on questions of constitutional import. Yet all plans for the nuclear option require that the Senate's presiding officer -- and most predictions were that Vice President Cheney himself would be presiding -- simply ignore that precedent and rule directly on the propriety of the above-referenced fool's reading, and hand down an equally foolish ruling.

Further, the original plans for the nuclear option made it clear that the constitutional basis for changing the rules by majority vote was a power which, though derived from the Constitution, was reserved under the "continuing body" rule for consideration at the beginning of a new Congress, not at whatever time seems most convenient. Thus, both precedent and the institutional traditions of the Senate itself are disrespected. Thanks, "Madam Justice."

But wait, there's more. Miers, as a would-be Master of the Constitution, would also like you to know that she doesn't believe the Founders had any intention of creating different institutions in the two Houses of Congress. Bicameralism, obviously, is an elaborate joke, which has taken "strict constructionists" two hundred-plus years to undo. Both the House and the Senate were, despite their carefully constructed and explict differences outlined in the Constitution, in fact meant to be purely majoritarian bodies. Whoopsie! Sorry about that, America! But better late than never, when it comes to "the truth," right?

What of the president's repeated assurances that Miers will not "legislate from the bench." That, of course, will be a welcome change from her prediliction for legislating from the back offices of the West Wing. I say that because the theory behind the nuclear option is that the nominees have a "constitutional right" to an "upperdownvote." Some nuclear proponents are explicit about this, but most are more cagey, simply saying that the Constitution prohibits the use of the filibuster against judicial nominees, and pointing to the "advice and consent" clause, as though that were proof of anything. But if that clause prohibits the use of the filibuster, it must by necessity create a right to that vote. What else could it mean? The question, of course, is: In whom does that right vest? The nominee? The president who nominated her? The Senate as a body? The Majority Leader? The American People at large? A weighty question. These are the consequences of putting lightweights in charge of consitutional jurisprudence. And while we'd be stuck entrusting the interpretation of these new "right" to whomever th' preznit can shoehorn onto the Court, that doesn't change the fact that the creation of new rights fits squarely into the very definition that "conservatives" have used for "legislating from the bench."

It falls, then, to opponents of the nuclear option on both sides of the aisle to ask a few probing questions of Miers about her support for this constitutional abomination, as insulting as it is to the institution of the Senate. Of course, the only candidates to fill that role from the right are Senators DeWine and Graham, both of whom have questionable commitments to the nuclear option deal, and both of whom have said they'd vote for it at the drop of the right hat. Chairman Specter, of course, is widely speculated to be an opponent of the nuclear option, but he didn't sign the deal, and has never made an explicit public statement in opposition to it. He'll already be walking a tightrope in shepherding this nomination (if that's what he chooses to do). I doubt very much whether he'll be in a position to raise the issue.

What a tragedy. The one constitutional issue upon which Harriet Miers is known to have weighed in while at the White House -- at least according to Ken Mehlman -- and one which so directly impacts the operations of the very body considering the nomination, and still it may pass without notice.

Daily Kos: Nuclear Option returns home to roost


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