Randy Barnett has an op-ed piece in today's Wall Street Journal that absolutely shreds Bush for nominating Harriet Miers. He begins by quoting a passage from Federalist Paper 76, written by Alexander Hamilton, on why the consent of the Senate is required for appointments:
"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. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."
He then goes on to point out the many ways in which this nomination violates Hamilton's warnings:
Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush's personal lawyer. Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton's description any more closely...Cronyism is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch. A longtime friend of the president who has served as his close personal and political adviser and confidante, no matter how fine a lawyer, can hardly be expected to be sufficiently independent--especially during the remaining term of her former boss.
By characterizing this appointment as cronyism, I mean to cast no aspersions on Ms. Miers. I imagine she is an intelligent and able lawyer. To hold down the spot of White House counsel she must be that and more. She must also be personally loyal to the president and an effective bureaucratic infighter, two attributes that are not on the top of the list of qualifications for the Supreme Court.
He also makes an argument that I think is important. Both parties are talking about the supposed virtue in putting people from "diverse backgrounds" on the Supreme Court. According to this reasoning, it "broadens your perspective"...whatever that might mean. But the fact is that being a Supreme Court justice is a difficult job and, like any other important position, it requires a particular set of skills. Barnett writes:
To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers's professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.
Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.
Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.
I agree completely. This is the worst pick since the Trail Blazers took Sam Bowie over Michael Jordan.
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Now why on earth would G.W. Bush nominate someone who is no more qualified to serve on the Supreme Court than he is to serve as President? All you moderates and libertarians who voted for this schmuck (you know who you are) on a "lesser of two evils" theory have a lot to answer for. Would any of you hire this doofus to run your business? I mean as a real, hands-on executive, not as a rainmaking front man. Didn't think so.
I have always thought it a bit strange that there were no minimum qualifications specified for SCOTUS appointments. The Federalist papers don't offer much in that regard either, as it seemed to Madison and Hamilton (et al) that such a nominee would be culled from a pool of personages that were held in the highest esteem by as many of the people as possible. In drafting Article Three, these fine wise minds did not even bother with suggesting that such a justice need be an attorney, or a member of the bar, or(since they didn't actually exist quite yet) members of other "lower" courts. And over the intervening centuries certain qualifications and "requirements" have become apparent and indeed i would say absolutely necessary. In some ways Harriet (like her name) is a throwback to the 1790's.
All very good. But then why would Harry Reid suggest Miers as a nominee, as has been reported?
That is, a good check on who's a crony hire and who isn't is to ask, Would anyone else hire this person? In this case, apparently, Reid would. I can't fathom why.
Grumpy wrote:
That may well just be political gamesmanship. If he knew that she was under consideration (and he likely did) and he figures that she is the one most likely not to be staunchly conservative or most likely to move to the left once on the bench (and she most likely is), then his endorsement of her makes perfect political sense.
Well, it depends on the position. I have no doubt she is an excellent attorney and would make a fine counsel. She may even make a good judge, though you shouldn't start at the top in that job. But of all the people under consideration for the nomination, she is clearly the least qualified.
She's may be a young-earth creationist. At least, the church she attends (Valley View Christian Church) thinks that Carl Baugh's website is worthy of our consideration. See http://www.vvcc.org/coollinks.asp