October 4, 2005
More on Miers
Villianous Company, in an effort to be contrarian and not pile on Harriet Miers, pointed me to this article by Ronald A. Cass of National Review. Cass is more of the “trust Bush” group, and tries to pick apart the anti-Miers arguments:
First, the notion that one needs a judge to serve on the Court runs contrary to dozens of appointments stretching back to the beginning of the nation and forward to appointments as recent as Justice William Rehnquist. John Marshall was not a judge before going on the Court but went on to become one of the foundational figures in American jurisprudence. Robert Jackson wasn’t a judge before going to the Supreme Court. Nor were Louis Brandeis, Felix Frankfurter, William O. Douglas, Harlan Fiske Stone, or Earl Warren. Hugo Black had a year’s service as a police-court judge. Like or dislike what these men stood for, all left their mark on the Court and on the law. No one who looks back over the history of the Court, can say that these judges were less-influential, less-important, or less-capable justices than their colleagues who had prior judicial experience. The addition of a lawyer with experience in the corporate world (a serious deficiency on the current Court) as well as extensive experience with the legal issues that come across the president’s desk will make the Court a stronger, not a weaker, institution.
Second, there is a fatal conceit that we can and should look to ascertain a nominee’s personal views on a variety of specific issues that might come before the Court. That is exactly the opposite of the rule of law. The rule of law demands that judges adhere to legal rules that are set forth by others, that the job of the judge is to interpret and apply the law, not to promote personal visions of good law. The whole structure of our legal system — from life tenure to the nature of the briefing and decision process to the requirement of written decisions explaining the judges’ views — is designed to insulate judges from external pressures and to assure their fidelity to the law. We need to know that potential judges are competent to read, understand, and interpret the law and that they have the temperament to do so. We do not need to know their personal beliefs.
Third, the critics, both Left and Right, do an injustice to the president as well as to Miers. The constitutional design is that the president selects judges. He selects judges he has confidence in. We vote for the president we trust, and he gives us appointees he trusts. The president told us what sort of judges he was looking to appoint and the American people elected him — after his opponents made this a key campaign issue. The fact that the president has worked closely with Miers, knows her well, and has faith in her is a good thing. It is good for conservatives, as the president has made clear his own embrace of conservative principles, and we can expect that someone he has such great comfort with shares those principles. It is good as well because the president has made clear as well his commitment to judicial — as opposed to political — conservatism, to having judges respect their circumscribed role. The Constitution gives the president primacy on appointments of officers of the United States, including judges. It gives the Senate a far smaller role, following nomination, in safeguarding against misuse of the appointment power. It does not give the Senate an equal voice in appointments. As so ably stated in Federalist No. 76:
In the act of nomination, [the president’s] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.
Below is my response over at Villianous Company, which I thought long enough to repost here:
I disagree, for several reasons. Addressing points in order:
1. The problem is not that she’s not qualified because she’s not a federal judge, it’s that nothing in her past gives any credence to any thoughts of a judicial philosophy. She’s never, in her professional career, dealt with matters of Constitutionality, separation of powers, interstate commerce, etc. Roberts had a mostly non-existent judicial career, but had extensive time in front of the Supreme Court. He clearly has extensive knowledge of the intricacies of Constitutional law. It’s not a lack of judicial experience that’s a problem, it’s a lack of relevant career experience.
2. The fight is between originalism and a living constitution. Those of us who believe in originalism consider it to be the “rule of law”, and a living constitution is a pliable tool to create a society ruled by men, not law. The living constitution is step 1 towards arbitrary government. I consider it crucial to ascertain whether a potential justice believes that the constitution means what it says, and cannot be interpreted in an ever-wider fashion. I don’t care about Miers’ personal beliefs about abortion, or tax structures, etc. What I care about is her judicial philosophy, not her stand on individual issues.
3. We’re not saying the President has to nominate who we tell him to. We’re saying that the President is likely making a mistake, and considering that we don’t know anything about Miers, we’re not going to work one bit to support her. Cass quotes Federalist #76, but leaves one bit out:
“It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. 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.”
(3 con’t) It seems that Hamilton, in Federalist #76, opposes the idea of rewarding a political acquaintance in the appointment process. Bush’s nomination clearly reeks of political cronyism. Cass says that the Senate has the ability to guard against the misuse of appointment power. I’d call appointing someone who does not appear to have any qualificiations in Constitutional law, does not seem to have any judicial philosophy, and who could easily just be a political tool to help Bush deflect future legal inquiries against himself that may be in front of the court, as a misuse of his appointment power.
Miers may be qualified, we have no basis for determining from on her past experience. She may even be the next Clarence Thomas or Antonin Scalia. But considering that we have no idea who she is, I see no reason to stand behind Bush on this when his only answer is “trust me”. Especially when, as QandO points out, Bush trusts Rafael Palmeiro and Vladimir Putin.
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My problem with the Miers pick is different.
Seems to me that this was the wrong pick politically. Bush needs his base to pass legislation. All those phone calls and emails is how a president can pressure reluctant Congresscritters into supporting his proposed legislation or budget or nominee or what have you.
By failing TWICE to fulfill his campaign promise of promoting strict constructionism on the Court, Bush has pissed of his base, myself included, who will now no longer give him as much of a pass on his profligate spending, his trampling of Free Speech rights (McCain/Feingold), his amnesty for illegal aliens programs, etc.
My $2.22 (adjusted for inflation).
The Artist
http://www.theartoftheblog.com
BTW – y’all have been added to my “Blog Middle” menu.
Love your work. Keep it up.
I’ll be back.