Framer's Corner: Alexander Hamilton
PerspectivesOn Monday, October 3, President Bush nominated Harriet Miers to the Supreme Court. Many citizens immediately cried foul and made accusations of cronyism. Why? Harriet Miers is President Bush’s lawyer and longtime friend. In light of this charge, and with all the present controversy over the proper role of the Senate’s “advise and consent” powers, it seems fitting to consult the wisdom of the Framers.
In Federalist No. 76, Alexander Hamilton wrote: “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.”
Have Hamilton’s worst fears been realized by President Bush’s recent actions? If so, the duty lies to the Senate to resist him.
posted by UT Federalist Society @ 10/05/2005 12:49:00 PM
1 comments
1 Comments:
Mr. Bush said, "I picked the best person I could find." Well, Mr. President you should have looked a little farther than your own attorney. After reflecting on Ms. Miers for a few days, I have decided to come out against her. While I may be a little to left from the majority of my Federalist brothers and sisters, I believe we all can agree that an independent judiciary is vital to our chosen profession.
Ideally, judges should be fiercely independent arbiters of justice where they apply a reasonable interpretation of the law to the facts set before them. They should not legislate from on high, but neither should they ignore justice because of the failure of the legislature to foresee all possible applications of the law. Applying this rationale, I cannot support a nominee who is this close to her nominator. My opinion would be no different if Bill Clinton had nominated his wife. Ms. Miers has stood by her man for quite some time and I cannot believe that she will not continue to do so in the future.
The Senate has a duty to ask intelligent questions and not to be overcome with partisan politics. Of course, that is unrealistic considering that the Democrats on the Judiciary Committee are bunch of spotlight grabbing whiney bitches who would not know a legitimate issue if it bite them in the arse. As such, the public must demand more than the President’s unsupported endorsement.
Cronyism is nothing new to the Supreme Court, but that does not make it right – now or then. Even though Vice-President Cheney and Justice Scalia are thick as thieves, relatively speaking, I think their relationship is more appropriate than Ms. Miers and the President’s. Friendship is vastly different than the benefactor-beneficiary relationship. Justice Scalia and Mr. Cheney are important men on the national stage independent of each other; whereas, Ms. Miers would not be in her current position without riding on the coattails of the President. She is the stealth candidate who leaves behind no judicial record or scholarly writings and I am willing to bet the farm that the President will hide behind executive privilege and not allow any of her writings be released, except for the most edited and useless pieces. I am sorry, Mr. President, but I just don’t trust your judgment that much.
As was aptly pointed out in Randy Barnett’s Opinion Journal post, “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.” For exactly this reason I cannot support a nominee who has any more qualification than a vast number of other distinguished members of the Bar.
While I like the idea of a fresh perspective from a practitioner, I cannot accept Ms. Miers because of her close attachment to the President. John Roberts, Jr. is an ideal candidate. While I am sure I will disagree with some of his opinions, I am confident that he will have well-thought out reasons for his holdings, because he has argued before the Court close to 40 times and sat of the most respected Court of Appeals for three years wrangling with a plethora of issues. Regardless of the President, I just cannot get over the feeling that any decisions from a nominee this attached to a president will be sufficiently free from influence, either conscience or not.
I have no doubt that she is a competent, and probably, a great attorney; she just has not had the opportunities to formulate a solid grasp of the vast range of subtleties and complexities the job requirements. In sum, there are just too many other qualified candidates out there to honestly believe that Harriett Miers is the “best pick.” I welcome everyone’s comments and challenges to my position, but barring some monumental development, my position is firm.
Post a Comment
<< Home