Keeping the Cronies Out

By way of Volokh.com: A nice piece of historical analysis of the Miers nomination appears on the Wall Street Journal’s OpinionJournal. The author, Randy E. Barnett, a law professor at Boston University, argues that the founders envisioned the Senate’s advice and consent as an effective barrier to a president nominating his buddies to high office, including the court. Barnett quotes Alexander Hamilton on this proposition:

“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.”

Barnett then states the obvious question about the new nomination:

“Given her lack of experience, does anyone doubt that Ms. Miers’s only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser?”

Alexander Hamilton looks like a real idealist, though, in imagining that the Senate might provide an effective check on a president who doesn’t care about the appearance of cronyism in appointments or of deadly incompetence on the part of those who have been installed in the executive branch (I’m thinking more of the architects of the Iraq war than those who botched the post-Katrina operation).

2 Replies to “Keeping the Cronies Out”

  1. I think we need a constitutional ammendment limiting the term of a Supreme Court Justice to 18 years — 3 consecutive Senate terms. I would add the following provision that a sitting president can, upon the expiration of a Justice’s 18 year term, extend byb 6 years, for an absolute maximum of 24 years. Then I would worry less about one president having the ability to stack the court for a long period of time… Think! With medical advances, we could be hearing from Chief Justice Roberts for 50 or 60 more years!! And don’t even get me started on President Bush’s personal friend, confident, and attorney…

  2. That’s an interesting idea, and it brings up one feature of the current system I’m unclear on — why the framers of the Constitution made the court a lifetime gig. I don’t think it was an actuarial consideration — plenty of people were living to a great old age even then (of course, not as many as today — but Ben Franklin, to choose an example from the time, was in his 80s when the Constitution was under consideration). My guess would be the obvious one — that the framers wanted to ensure the justices were entirely unbound by political considerations in terms of worry about their tenure. Your idea would essentially do the same thing by creating a firm limit on their time on the bench (as opposed to California’s system, which requires its high court justices to go before the voters every 12 years).
    My next statitics/trivia project will be to look at the average tenure of U.S. Supreme Court justices and, for extra credit, look at which great opinions might have not happened if a justice had been forced to retire at 18 (or 24) years. …

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