Sen. Arlen Specter (R-PA) is close to asking the right questions of Harriet Miers. In this morning’s WaPo, reporter Amy Goldstein writes: Chairman Arlen Specter (R-Pa.) dispatched a letter to Miers, the White House's top lawyer, saying that she must also convince the Senate that as a justice she would be independent of President Bush and would not give him "any special deference" on cases before the court.
In particular, Specter said, he will press her to disclose her personal views of three recent Supreme Court rulings that detainees in the terrorism fight have somewhat greater rights than the administration has wanted to give them..
The President has plans for preemptive nuclear strikes on terrorists and expanding the role of the military in case of a flu epidemic or other domestic disasters.
On October 7 and August 22 this blog was suggesting that administration plans might fail the just war questions of last resort and legitimate authority. Administration plans for preemptive use of the military should raise constitutional questions concerning separation of powers as well.
Sen. Specter could, for example, ask Harriet Miers about her view of each of the 23 incidents in which the President reported to congress under the War Powers Resolution. (Scroll down to appendix 1 for the list.) If she declines to answer based on executive privilege, she should not be confirmed.
It seems to me that James Madison was correct in denying the President the power to send troops into combat without the approval of our elected representatives. He sought to restrict the power of the executive by a constitutional requirement for a declaration of war. This worked poorly, even in the 18th century. The War Powers Resolution was an attempt to find a balance between the need for prompt action by the executive and citizen concerns about sending our sons and daughters into harms way. The Senate should acknowledge that it hasn't worked very well and investigate the constitutional issues involved.
If, as Charles Krauthammer has suggested, Harriet Miers must remain mute on these questions, she should not be confirmed. Human life and pro-choice advocates should be at least as concerned with the President’s war making powers as with abortion or capital punishment.
P.S. It won't happen. No Senator wants to challenge the President on this issue and look weak on terrorism.