October 5th, 2005

Voted for Dean

Harriet Miers

The Wall Street Journal editorial page beat all the others to the punch, and finally came up with the real, legitimate, compelling argument why the Senate should not confirm Harriet Miers' appointment to the US Supreme Court. Read this: Randy Barnett, "Cronyism: Alexander Hamilton wouldn't approve of Harriet Miers," Wall Street Journal, October 4th, 2005. (Read it soon-ish, too, because stuff on the WSJ's free OpinionJournal.com website doesn't always stick around for long.) OK, I'll give you the meat of it, which more or less starts with this quote from Alexander Hamilton, the primary author of the US Constitution. (You want "original intent of the framers"? Get more "original intent" than this, I dare you to try.)
"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." Alexander Hamilton, The Federalist Papers, #76.
The entire legitimacy of the US government depends on a balancing act. Ever since the compromise was hammered out in 1803, one of the primary defenses of the Republic has been the belief, illusionary or not, that there is a branch of the federal government that is meritocratic rather than populist or insider-appointed, one where virtually all sides to any ongoing political debates get a veto over each others' nominees, that can be counted on to be an impartial referee to our hardest legal and philosophical problems.

Harriet Miers is where she is now, let alone nominated for the US Supreme Court, not because of her qualifications but because the President trusts her, 100%. The only thing that's wrong with that is that the reason he trusts her 100% is that she has been his family's personal lawyer since the President was a child. In that time, she has shown absolute, unwavering personal loyalty to the Bush family, including the breathtaking remark she once made that George W. Bush is the smartest man she's ever met.

Now, ask yourself this rhetorical question: how many times, already, in the last 5 years, has the fate of the Bush Administration hung on a Supreme Court ruling? Bush v. Gore, the habeus corpus petitions of the shoe bomber and the detainees at Guantanamo, and the long-running Freedom of Information Act lawsuit over the records of the Vice President's energy-policy task force all come readily to mind. When the rest of us take a case to the Supreme Court, our lawyer only gets to file paperwork and then get one brief session of oral arguments. How much easier would it be, personally, for the President, if his personal attorney got to be there 24x7, able to lobby the other 8 justices personally on the Presiden't behalf all day long, having access to their law clerks, and present at all deliberations? The last fig leaf of impartiality would be gone.

(Personally, I don't think she's even the real candidate. I think she's a straw man, set up there to be knocked down, so that Alberto Gonzales or whoever else gets nominated next looks great by comparison. I don't think she'll even make it out of committee, and wouldn't bet money either way on her even getting an actual formal Senate Judiciary Committee hearing. I about half expect the nomination to be withdrawn.)