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).
First: It’s not true that Bush’s new nominee for the Supreme Court, Harriet Miers, has no judicial experience. A Legal Times article from last December disclosed that she’d been dating a member of the Texas Supreme Court for years.
Thank you thank you very much.
Second: It’ll be fun to watch journalists and analysts and partisans pore over her life to find the places she has at least suggested opinions on The Big Issues (the process is well under way: Note the AP story on Miers’s role in trying to get the American Bar Association to back off its support of abortion rights in the early 1990s; and also a New Republic blog post on a general sort of piece Miers wrote regarding gun control, crime and other social ills and their cures in 1992). We may well find out, and find out very quickly, that her nomination is the product of Lone Star cronyism and that she simply isn’t fit for the court.
But the one reason that should not disqualify her is her lack of judicial experience. The dean and several faculty members of Boalt Hall participated in a Constitution Day panel at the law school a couple weeks ago, and one of the points eloquently made by one of the professors — Jesse Choper — was how the court has gradually become unbalanced through the absence of justices who have come from backgrounds other than the bench. Choper pointed out that the current Supreme Court has shown a degree of misunderstanding and distrust of the political process and the workings of Congress. He suggested that the presence of someone like Walter Mondale, rumored to be under consideration during the Clinton years, would be immensely useful to the court’s deliberations. Of course, there’s a more direct exhibit of how effective a non-judge can be on the court: Earl Warren, who became chief justice from a purely political and prosecutorial background.
Warren, though, had been involved in electoral politics for decades by the time he went to Washington and was attorney general and governor of a key state (California) during an extremely difficult period (just before and during World War II;). Plus, he was a Norwegian American, which is an important personal attribute regardless of anything else.
Miers? I kind of doubt her people hail from the fjords, somehow. As to the rest: It’s hard to see how her resumé adds up to a Supreme Court spot. We’ll see.
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