Editorial: The ultimate test of Miles' Law

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To understand what's going on in Washington right now, you have to remember the wisdom of Rufus T. Miles.

Miles, a career bureaucrat from 1941 to 1966, is best known for an observation that explains the way people in government adopt policy ideas that are dictated by their positions in the power structure.

Known as Miles' Law, it simply states, "Where you stand depends on where you sit."

The sudden death of Justice Antonin Scalia, and the desperate scramble to name his successor has been the ultimate test of Miles' Law.

Regardless of what you think about Scalia's views on constitutional interpretation, he was a giant - a leading figure in a 30-year reaction to the liberal jurisprudence of the 1960s and 1970s. He was one of a five-member conservative bloc on the current court, and his passing has the potential to signal another dramatic turn in its political orientation.

With so much at stake, competing forces wasted no time looking for ways to influence the choice. The most offensive power grab came from Republican leader Sen. Mitch McConnell, who put out a statement less than an hour after Scalia's death had been officially announced, declaring that the vacancy on the court should not be filled by a nominee of the president, as required by the Constitution, but that the seat should go empty until 2017.

He was quickly joined by other Republican senators, including New Hampshire Republican Kelly Ayotte, who issued a statement that went even further, saying, "I believe the Senate should not move forward with the confirmation process until the American people have spoken by electing a new president."

It's a shameful rewriting of the Constitution and traditions of American governance by partisans hoping that the next election will put their team ahead, regardless of the important public business that can't be done properly with a short-handed court. But it is perfectly understandable reaction under Miles' Law. They are Republicans, and they want a Republican to name the next justice, even if that Republican is Donald Trump.

This makes us appreciate the position of Maine Sen. Susan Collins, who has again showed that where she sits is very a lonely place. Rather than jump into the partisan fray, Collins' has been appropriately circumspect.

She expressed concern for the late justice's family, friends and colleagues and asked that they be given a proper opportunity to mourn. And she issued a statement that was at odds with her majority leader's:

"More than any other appointment upon which the Senate is called to pass judgment, nominees to the Supreme Court warrant in-depth consideration given the importance of their constitutional role and their lifetime tenure. Our role in the Senate is to evaluate the nominee's temperament, intellect, experience, integrity and respect for the Constitution and the rule of law."

We wish Collins had gone further. We wish she had asserted that the president has an obligation to nominate a new justice and the Senate has an obligation to hold hearings and submit the nomination to an up-or-down vote. But that's easy for us to say.

Miles' Law makes it easy for a lot of people to know where they stand on this issue, from Senate Republicans who say that a president's term should be effectively reduced by one year if the president belongs to another party to Democrats who insist that a prompt vote is the only acceptable response to a court vacancy, even if they personally argued the opposite position when a Republican was in the White House.

But where Collins sits, there is no easy answer.

We expect that she, as a Republican, would prefer that a Republican president name the justice who would control the court's majority. We expect that she, as a conservative, would not like to see the court lurch to the left.

But as a senator who respects the traditions of her institution and as someone who has been around long enough to know that this will not be the last Supreme Court vacancy that will need to be filled, we trust that she will not participate in short-sighted partisan maneuvering that would poison the nomination process now and for a long time to come.

Collins has staked out the right position for a conscientious senator facing an important decision. We hope others will decide to stand with her.

– The Portland Press Herald (Maine), Feb. 21, 2016


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