Bush and Miers
After nominating John Roberts, an intelligent Harvard Law School graduate who even the Democrats had to admit was well-qualified, to whom does President George W. Bush turn for his next Supreme Court nomination? His present White House counsel and former personal lawyer Harriet E. Miers. And what is her philosophy as a judge? She doesn’t have one, because she’s never been a judge before.
This nomination defies logic. Shouldn’t a woman who sits on the highest court of the land, and who helps direct lower courts, know what being a judge is like? As a lawyer, she might have argued before judges many times, thereby gaining some understanding of their job. But observing someone doing a job provides only incomplete knowledge of what working in that job entails. For example, one can’t know what a police officer’s job truly encompasses until one has felt the anxiety of walking a beat or arresting a dangerous criminal. Judgeships are the same way; until one has presided over a courtroom, managed lengthy dockets, and struggled to keep opinions out of decisions, one can’t comprehend a judge’s duties.
How does Miers even know she’d enjoy sitting on the bench? As a lawyer, she presented subjective viewpoints all the time. Would she like factoring them out of her decisions now? More importantly for the country, would she be able to do so? No one knows!
When people said Bush’s next Supreme Court nominee didn’t have to be a John Roberts… they didn’t mean she didn’t have to be qualified for the position.
In drafting the “advice and consent” clause of the Constitution, the Founding Fathers did not intend for the Senate to force the president to nominate whomever they thought best, as Alexander Hamilton says in Federalist 66 and 76. The purpose wasn’t to allow the Senate to screen nominees ideologically. Instead, the objective was to ensure the president nominated people of merit. As Hamilton writes in Federalist 76:
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. In addition to this, it would be an efficacious source of stability in the administration.
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 entire 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.
Miers, a woman who has personal ties to the president but no actual merit, is the kind of nominee whom the Founding Fathers wanted the Senate to prevent from taking office. Democrats who’ve been waiting for a chance to rip apart one of Bush’s Supreme Court nominees now have the Founders’ blessing to do so. (Get to it, ladies and gentlemen!) And senatorial Republicans will hopefully cast aside partisanship and join with the Democrats to stymie President Bush’s nomination as well.
About the Author
I'm Jason Vines, a web developer at a research institution in Washington, DC. I graduated from George Washington University with a bachelor's degree in political science, with a minor in journalism. I enjoy philosophy and web scripting, as well as reading, writing, history, video games, travel, and photography.
