More David L

David Limbaugh again discusses the Miers nomination. This time, he addresses the meaning of the advice and consent clause.

[Professor Bainbridge] rejects my contention that the Senate's role should be limited to vetting the nominee's qualifications and character. . . . "Nothing in the text of the clause appears to limit the kind of considerations the Senate can take up."

Bainbridge writes, "To be sure . . . Alexander Hamilton thought the Senate could only reject a nominee for 'special and strong reasons,' but that qualification is nowhere in the Constitution."

But doesn't an "originalist" approach to constitutional interpretation oblige us to inquire what the Framers understood the meaning of "Advice and Consent" to be? Surely Hamilton's Federalist 76 cannot be dismissed so casually if it gives us some insight as to the Framers' original understanding.

Hamilton wrote: "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. In addition to this, it would be an efficacious source of stability in the administration."

Limbaugh points out that how the conservatives and Repbulican Senators treat Miers may impact future judicial confirmation decision making.

If conservatives do press the Senate to reject her, they better be sure to do so on grounds consistent with those they've urged rejection of judicial nominees in the past, and with those they would like to see urged in the future. Aside from whether my relatively narrow view of "Advice and Consent" is correct, I believe I can safely say that in practice, conservatives have certainly given this view de facto credence.

If Republicans thought they could properly reject the president's judicial nominees for political reasons alone, or on the basis of judicial philosophy, they've certainly done their best to prove otherwise. How else do you explain their overwhelming affirmation of the radically liberal and activist Ruth Bader Ginsburg?

By contrast, Democrats, since Judge Bork's nomination, have often -- though not always -- rejected qualified nominees purely for reasons of politics and judicial philosophy.

Of course, Limbaugh points out that this contrast is harmful to Republicans. It guarantees losing in the long term. But what does one do when forced to choose what is right from fighting in the mud with Democrats?

He ends seeming to endorse the tit for tat approach, which left me confused.

Perhaps someone can tell me what Limbaugh's position is at the end of the day. Follow the right path, or play in the mud with the pigs?