Bush nominates Miers to fill O'Connor's seat

[Surfrider]

Bush Picks Miers for Supreme Court
Monday, October 03, 2005
 

WASHINGTON ? President Bush on Monday chose White House counsel Harriet Miers (search) to replace retiring Justice Sandra Day O'Connor (search) on the U.S. Supreme Court.

"She will be an outstanding addition to the Supreme Court of the United States," Bush said during a press conference announcing his pick.

Saying she has a "record of achievement with the law," Bush said Miers also has "built a reputation of character and integrity" and possesses a "deep compassion and abiding sense of duty."

"She will bring that same passion for service to the Supreme Court of the United States," he added.

If confirmed by the Republican-controlled Senate, Miers, 60, would join Justice Ruth Bader Ginsburg (search) as the second woman presently serving on the nation's highest court.

"I am very grateful for the confidence in me that you've shown by this nomination and certainly I am humbled by it," Miers told Bush during the press conference.

Known for thoroughness and her low-profile, Miers is one of the first staff members to arrive at the White House in the morning and among the last to leave.


The president made his decision early Sunday evening, then told Miers in a meeting at the White House later that night. The White House is describing the nominee as "a woman of many firsts."

When Bush named her White House counsel in November 2004, the president described Miers as a lawyer with keen judgment and discerning intellect ? "a trusted adviser on whom I have long relied for straightforward advice."

He also joked of Miers, "When it comes to a cross-examination, she can filet better than Mrs. Paul."

In making his announcement, Bush stressed that his nominee will not legislate from the bench. Conservative Republicans in recent years have complained that too many judges have been "activist" in their rulings in not strictly interpreting the Constitution on issues such as gay marriage and end-of-life issues.

"It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts in our society," Miers said. "If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution."

Supporters call Miers a "top-notch lawyer" who understands the limited role they say judges should play in society. In nominating Miers, they say Bush is reaffirming his commitment to picking judges who will respect the letter of the law and not allow cultural or social trends sway their opinions.

"Harriet Miers is a top-notch lawyer who understands the limited role that judges play in our society," said Noel Francisco, former assistant White House counsel and deputy assistant attorney general during the Bush administration. "In nominating Ms. Miers, the president has reaffirmed his commitment to appointing judges who will respect the rule of law and not legislate from the bench."

Senate Republicans said they would press for confirmation by Thanksgiving ? a tight timetable by recent standards that allowed less than eight weeks for lawmakers to review her record, hold hearings and vote.

Within hours of Bush's announcement in the Oval Office, Miers headed for the Capitol to begin courtesy calls on the senators who will vote on her nomination.

Appeasing Both Side of the Aisle

Miers, who has never been a judge, was the first woman to serve as president of the Texas State Bar and Dallas Bar Association. She also was the first woman to run a large law firm in Texas ? Locke, Purnell, Rain & Harrell ? with a staff of 200 attorneys. She would fill the shoes of O'Connor, a swing voter on the court for years who has cast deciding votes on some affirmative action, abortion and death penalty cases.

White House officials said Miers is conservative enough to satisfy the president's supporters and does not have a lengthy legal record that could embolden Democrats.

"There's every indication that she's very similar to Judge [John] Roberts ? judicial restraint, limited role of the court, basically a judicial conservative," said Republican consultant Greg Mueller, who works for several conservative advocacy leaders.

But others say Bush perhaps took the easy way out by picking Miers rather than someone like Priscilla Owen, who undoubtedly would be more controversial but more pleasing to conservatives.

"It looks an awful lot like he flinched," said Bill Kristol, a FOX News contributor and publisher of The Weekly Standard. "He put up someone with no judicial record and it's hard to interpret that as anything but flinching from a fight."

But not all conservatives are shrugging at the nomination.

"I think she is a wonderful choice. She has gone through some of the same experiences Sandra Day O'Connor" did and is considered one of the top lawyers in Texas, Sen. Kay Bailey Hutchison, R-Texas, told FOX News.

"I think it's very important to have someone on the bench who has been a practicing lawyer ... you need that real-world experience that brings another dimension to the Supreme Court."

Miers has been leading the White House effort to help Bush choose nominees to the Supreme Court, so getting the nod herself duplicates a move that Bush made in 2000 when he tapped the man leading his search committee for a vice presidential running mate ? Dick Cheney.

Miers, who has served as a liaison between Bush and the Senate in the Supreme Court nomination process of late, was suggested as a nominee by both Democrats and Republicans, White House spokesman Scott McClellan said.

Senate Democrats for months have been warning Bush to pick what they call a "consensus nominee" whose ideology lies somewhere in America's "mainstream." They also continuously called on the president to include them in nomination discussions to make sure the person who was chosen for the court appealed to both sides of the aisle.

Democrats are under pressure from liberal interest groups to fight Bush's second Supreme Court pick, and many observers speculated prior to the nomination that the fight for O'Connor's seat would be even more brutal than that of John Roberts (search), who began his job Monday as the new chief justice of the court. Confirmed last week on a 78-22 vote, Democrats were evenly split on confirming Roberts.

Asked if Democrats will be tougher on Miers than they were on Roberts, FOX News Supreme Court analyst Tim O'Brien said, "I don't know if toughness is the word.

"This is such a critical appointment. She is going to be subjected to the most exacting scrutiny and I think that's appropriate ? they are going to challenge her understanding of constitutional law."

Some Republicans have said they believe Democrats may even attempt to filibuster Bush's pick for the court because Roberts got such an even pass, even if the nominee isn't necessarily that far out of the mainstream.

"My view on that is, the Constitution does not allow for a supermajority to be appointed to the Supreme Court," Sen. Charles Grassley, R-Iowa, told FOX News Monday morning. "Never has a filibuster stopped somebody from being on the Supreme Court."

Bush said the "American people expect Harriet's hearing to be handled with the same respect and civility that characterized the last three Supreme Court nominations" of Roberts, Ginsburg and Stephen Breyer.

Sen. John Cornyn, the Texas Republican who served as a type of point-person in the Senate for the administration while Roberts was being shepherded through the confirmation process, said Bush's pick is a great choice.

"It is important that we put aside partisanship, and that the Senate fulfill its constitutional responsibility of advice and consent," he said. "This fine nominee must be treated with civility and respect, not as a political pawn. I hope that we in the Senate can move forward in a manner worthy of the American people."

Lack of a Paper Trail

Sen. Charles Schumer, D-N.Y., was up in arms when Roberts would not give details on his opinions on certain hot-button issues or cases that likely would come before the court. He said Monday that learning as much as possible about the new nominee is vital.

"There is some hope that Harriet Miers is a mainstream nominee, a very preliminary view indicates very little that she wouldn't be," Schumer said during a press conference. "This is a good first day in the process that begins to fill the seat of Sandra Day O'Connor."

Schumer said Bush has recognized that "the views of the extremist wing of his party are not the views of the American people."

(cont)

[Surfrider]

"We are certainly, we Democrats, are going to look at this nominee with a complete and open mind," he added. "Having said that, we know less of this nominee than we did about John Roberts in terms of" judicial philosophy and temperament.

With no record, liberals say the White House should be prepared for Miers to be peppered with questions during her Senate confirmation.

"Choosing somebody who is not a judge would put that much more of a premium on straight answers to questions because there would be that much less for senators and the public to go on when looking at such a nominee's judicial philosophy," says Elliot Mincberg, counsel with the liberal People for the American Way.

Grassley said Miers has "kind of a blank slate" as far as judicial history is concerned.

"I think the most important thing is, there's been a lot of demand that a woman be nominated to the court and obviously she fits that pattern very well," he added.

During the press conference Monday, Bush noted that neither the late Chief Justice William Rehnquist nor did 35 other Supreme Court nominees had judicial experience before being named to the country's highest court. He also reminded the country that both Republicans and Democrats have encouraged a nominee that doesn't necessarily have a judicial background.

Formerly Bush's personal lawyer in Texas, Miers came with the president to the White House as his staff secretary, the person in charge of all the paperwork that crosses the Oval Office desk. Miers was promoted to deputy chief of staff in June 2003.

Miers, a single, soft-spoken woman who guards her personal privacy, has led a trailblazing career. She grew up in Dallas, earning her undergraduate and law degrees from Southern Methodist University.

When Bush was governor of Texas, she represented him in a case involving a fishing house. In 1995, he appointed her to a six-year term on the Texas Lottery Commission.

She also served as a member-at-large on the Dallas City Council. In 1992, she became the first women president of the Texas State Bar. She was the first woman of the Dallas Bar Association in 1985.

FOXNews.com's Liza Porteus and The Associated Press contributed to this report.
 

[Surfrider]

My initial reaction is dissapointment.  Don't get me wrong, I think that it is great that he picked a woman, and I think that she is probably more in the mold of an originalist (which I like).

However, even though she is probably a good attorney, I don't think she is best-qualified candidate for the job.  I was pleasantly suprised with the Roberts nomination because it was almost as if Bush wanted to pick the most well-qualified candidate.  This pick seems quite the opposite.  Here, it seems like he was looking to appoint a woman, and not necessarily the most-qualified candidate.  Since Bush had previously appointed Roberts, the distance in qualifications for the high court between the two is quite noticeable.  I understand that diversity on the court is a good thing, sadly I don't think that the best choices for this appointment were woman.  However, when there is only one on the court there is not much room to go any other way.

Finally, I hate the fact that anyone with a paper trail has no chance of getting confirmed.  Basically, it places the brightest legal minds out of the running.  Roberts was an exception.

Can anyone say Abe Fortas?

[pilferk]

I suspected the Abe Fortus comparisons would begin as soon as I read the article.

And we aren't the only ones:

http://www.msnbc.msn.com/id/9536142/

He DEFINITELY flinched.  He had the opportunity to really swing the court in an ULTRA-conservative direction (or try to) and didn't take it.

Quite frankly, I'm shocked.  The one thing he did do, though...as long as she has no skeletons in her closet (obvious ones), he ensured a pretty smooth and easy confirmation process, I think.  The one sticking point is her complete lack of judicial experience....I expect lots of those types of questions during confirmation...but, otherwise, it seems she's pretty well liked on the Blue side of the aisle.  Now, the question is, will the President's choice actually face MORE opposition on the Red side than on the Blue.

I'm actually pleasantly surprised.  She may even carry on O'Connors "swing vote" methodology.....hmmmm.

Interesting...

[Surfrider]

Now, the question is, will the President's choice actually face MORE opposition on the Red side than on the Blue.

Good question.

I'm actually pleasantly surprised.? She may even carry on O'Connors "swing vote" methodology.....hmmmm.

Pleasantly surprised?  I'll bet she is much more conservative than O'Connor.  Like I said, I'll bet she is actually more in the originalist mode, which I agree with.  However, I am dissapointed on her qualifications for the high court.  Very few make it on that court every generation; you would think we could place our brightest legal minds there.  Anyway . . .

[pilferk]

Pleasantly surprised?? I'll bet she is much more conservative than O'Connor.? Like I said, I'll bet she is actually more in the originalist mode, which I agree with.? However, I am dissapointed on her qualifications for the high court.? Very few make it on that court every generation; you would think we could place our brightest legal minds there.? Anyway . . .

Pleasantly surprised because it could have been much, much worse...IMHO.? Though it's tough to tell with no judicial material to review, I suspect, given some of the conservative reaction, that she's certainly not as far to the right as they would like.? Which would mean she's, at least, a bit more centrist in her conservative viewpoints.? Given some of the other candidates that came up....yes, pleasantly surprised.

I mean, it's not like anyone had any sort of inkling he was going to appoint a "living constitutionalist" liberal to the position.? So, given what there was left to expect.....

He flinched.? ?No other explanation that I can come up with.? If she were ultra right wing, I'd go with cronyism, given her qualifications, but....

I do agree on her qualifications, though.   But there is lots of precedent for it.

[Surfrider]

I think cronyism is correct.

In Number 76 of the Federalist Papers, 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. 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 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.

[Surfrider]

Bush makes surprise nomination
By Tom Smith

(AP) Washington. President Bush, in a surprise move, has nominated his Scottish Terrier, Barney, to the United States Supreme Court.

"Through years of faithful service, Justice designate Barney has shown he is one of the team. He will also bring a unique perspective to this important office. In a sense, he is my best friend."

Early reactions have been mixed. The National Organization of Ungendered Persons reacted cautionously. "While we welcome the nomination of a neuter to high office, we must point out that Barney is, to put it bluntly, a dog."

The Scottish Alliance was ecstatic. "Auld inna wee doggie an' for a that an' a that dinna be naught for a that!" commented the High Laird of the Inner High Temple, a Scottish thing.

"This is obviously a stealth candidate," complained Senator Charles "Chuck" Schumer (D!-NY). "Barney has no paper trail, and has never expressed an opinion on Roe v. Wade."

PETA reacted with outrage. "This is inconsistent with the dignity of non-human companion animals," said Starbeam Moonrider, a spokeshuman. "Will they make him wear a little black robe? Play basketball? That's no life for a dog."

Elite law students seemed less preturbed. Prime Minister of the Harvard Law Review, Q. Prufrock Citemonger III remarked, "Hell, yes, I would apply for a clerkship. A Supreme Court Justice is a Supreme Court Justice. Sounds like this one will need some help writing opinions."

Constitutional law scholars suggested how a new Justice Barney would vote was difficult to predict. One scholar at a small but undeniably cute law school in Southern California, who preferred to remain obscure, opined "It's really hard to say. However, I would not be surprized if he became a swing voter, going with whatever side offered him the best treats."

[Dr. Blutarsky]

I am witholding my judgement till I know who she is and what she stands for.

[Sterlingdog]

I haven't decided about her, but I don't think Bush picked her because of her qualifications.  It sure looks like he's simply giving a job to a friend.  If I understood correctly, she actually represented him in a case in Texas. 

[SLCPUNK]

After the Michael Brown fiasco, you'd think GW might have gone a different route on this one...

[pilferk]

Bush makes surprise nomination
By Tom Smith

(AP) Washington. President Bush, in a surprise move, has nominated his Scottish Terrier, Barney, to the United States Supreme Court.

"Through years of faithful service, Justice designate Barney has shown he is one of the team. He will also bring a unique perspective to this important office. In a sense, he is my best friend."

Early reactions have been mixed. The National Organization of Ungendered Persons reacted cautionously. "While we welcome the nomination of a neuter to high office, we must point out that Barney is, to put it bluntly, a dog."

The Scottish Alliance was ecstatic. "Auld inna wee doggie an' for a that an' a that dinna be naught for a that!" commented the High Laird of the Inner High Temple, a Scottish thing.

"This is obviously a stealth candidate," complained Senator Charles "Chuck" Schumer (D!-NY). "Barney has no paper trail, and has never expressed an opinion on Roe v. Wade."

PETA reacted with outrage. "This is inconsistent with the dignity of non-human companion animals," said Starbeam Moonrider, a spokeshuman. "Will they make him wear a little black robe? Play basketball? That's no life for a dog."

Elite law students seemed less preturbed. Prime Minister of the Harvard Law Review, Q. Prufrock Citemonger III remarked, "Hell, yes, I would apply for a clerkship. A Supreme Court Justice is a Supreme Court Justice. Sounds like this one will need some help writing opinions."

Constitutional law scholars suggested how a new Justice Barney would vote was difficult to predict. One scholar at a small but undeniably cute law school in Southern California, who preferred to remain obscure, opined "It's really hard to say. However, I would not be surprized if he became a swing voter, going with whatever side offered him the best treats."

LOL!!

I hear Barney is a closet lib...

[pilferk]

I haven't decided about her, but I don't think Bush picked her because of her qualifications.? It sure looks like he's simply giving a job to a friend.? If I understood correctly, she actually represented him in a case in Texas.?

She was his personal legal council, yes.

[Surfrider]

THE NEXT JUSTICE

Cronyism
Alexander Hamilton wouldn't approve of Justice Harriet Miers.

BY RANDY E. BARNETT
Tuesday, October 4, 2005 12:01 a.m. EDT

During the Clinton impeachment imbroglio, Alexander Hamilton's definition of "impeachable offense" from Federalist No. 65 was plastered from one end of the media to the other. With the nomination of Harriet Miers to the Supreme Court, get ready for another passage from Hamilton to get similar play--this one from Federalist No. 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. . . . 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." (The italics are mine.)





Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush's personal lawyer. Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton's description any more closely. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?
As the quote from Hamilton suggests, the core purpose of Senate confirmation of presidential nominees is to screen out the appointment of "cronies," which Merriam-Webster defines as "a close friend especially of long standing." Cronyism is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch. A longtime friend of the president who has served as his close personal and political adviser and confidante, no matter how fine a lawyer, can hardly be expected to be sufficiently independent--especially during the remaining term of her former boss.

By characterizing this appointment as cronyism, I mean to cast no aspersions on Ms. Miers. I imagine she is an intelligent and able lawyer. To hold down the spot of White House counsel she must be that and more. She must also be personally loyal to the president and an effective bureaucratic infighter, two attributes that are not on the top of the list of qualifications for the Supreme Court.

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. 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.

Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.

Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.





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? Of course, Hamilton also thought that the existence of Senate confirmation would deter the nomination of cronies:
"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."

While the Senate once successfully resisted President Lyndon Johnson's attempt to nominate his own highly able crony, Abe Fortas, to be chief justice, perhaps the performance of senators during the Roberts nomination reduced the deterrent effect of "advise and consent." Judiciary Committee Democrats spent half their time making speeches rather than questioning. What questions they did ask were not carefully designed to ferret out the nominee's judicial philosophy, favoring instead to inquire about his feelings, or whether he would stand up for the "little guy," or bemoaning his refusal to telegraph how he would rule on particular cases likely to come before the court.

For their part, Senate Republicans were content to parrot the empty line that a judge "should follow the law and not legislate from the bench." Sit tight and vote seemed to be their approach. By refusing to demand a nominee with a judicial philosophy of adherence to the text of the Constitution--the whole text, including the parts that limit federal and state powers--Republicans did nothing to induce the White House to send up a nominee who was at least as committed to limits on federal power as Chief Justice William Rehnquist and Justice Sandra Day O'Connor had been.

Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution's limits on government power. Does anything in her record suggest that Harriet Miers will be that sort of justice? We do not need to wait for Senate hearings to answer this question. What hearings will tell us, however, is whether the Senate, too, will succumb, in Hamilton's words, to "a spirit of favoritism."

Mr. Barnett is the Austin B. Fletcher Professor of Law at Boston University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2004).

[pilferk]

THE NEXT JUSTICE

Cronyism
Alexander Hamilton wouldn't approve of Justice Harriet Miers.

BY RANDY E. BARNETT
Tuesday, October 4, 2005 12:01 a.m. EDT

During the Clinton impeachment imbroglio, Alexander Hamilton's definition of "impeachable offense" from Federalist No. 65 was plastered from one end of the media to the other. With the nomination of Harriet Miers to the Supreme Court, get ready for another passage from Hamilton to get similar play--this one from Federalist No. 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. . . . 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." (The italics are mine.)

That's too funny.

Am I hearing an echo out there??

 

[Surfrider]

THE NEXT JUSTICE

Cronyism
Alexander Hamilton wouldn't approve of Justice Harriet Miers.

BY RANDY E. BARNETT
Tuesday, October 4, 2005 12:01 a.m. EDT

During the Clinton impeachment imbroglio, Alexander Hamilton's definition of "impeachable offense" from Federalist No. 65 was plastered from one end of the media to the other. With the nomination of Harriet Miers to the Supreme Court, get ready for another passage from Hamilton to get similar play--this one from Federalist No. 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. . . . 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." (The italics are mine.)

That's too funny.

Am I hearing an echo out there??

 

It's funny, with all of the debate about what the Senate's role should be over the confirmation process and the true meaning of "advise and consent", the one clear role that was envisioned by the Framers was to prevent such favoritism and cronyism.  I am not sure how Hamilton could be anymore clear?

[pilferk]

THE NEXT JUSTICE

Cronyism
Alexander Hamilton wouldn't approve of Justice Harriet Miers.

BY RANDY E. BARNETT
Tuesday, October 4, 2005 12:01 a.m. EDT

During the Clinton impeachment imbroglio, Alexander Hamilton's definition of "impeachable offense" from Federalist No. 65 was plastered from one end of the media to the other. With the nomination of Harriet Miers to the Supreme Court, get ready for another passage from Hamilton to get similar play--this one from Federalist No. 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. . . . 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." (The italics are mine.)

That's too funny.

Am I hearing an echo out there??

 

It's funny, with all of the debate about what the Senate's role should be over the confirmation process and the true meaning of "advise and consent", the one clear role that was envisioned by the Framers was to prevent such favoritism and cronyism.? I am not sure how Hamilton could be anymore clear?

You're quite right.  I don't think he could have been.  The question is....do you think the Senate will do "due diligence" and actually call a spade a spade or just rubber stamp her.  I wonder....given there is obviously some ill will on the Repub side of the aisle.

I must say, again, it's amusing that you and the author BOTH brought this up.  I wonder if the author is a closet GnR fan?

[Surfrider]

You're quite right.? I don't think he could have been.? The question is....do you think the Senate will do "due diligence" and actually call a spade a spade or just rubber stamp her.? I wonder....given there is obviously some ill will on the Repub side of the aisle.

It will be interesting to see what the Democrats do.

http://www.scotusblog.com/movabletype/archives/2005/10/commentary_some.html? Here is a take by someone at SCOTUS Blog that is predicting that she will be rejected.

I must say, again, it's amusing that you and the author BOTH brought this up.? I wonder if the author is a closet GnR fan?

I wouldn't be surprised if he is a GNR fan.? Actually he is a Professor at Boston University, and someone that I know relatively well.? He actually argued the Raich case (medical marijuana case) before the Supreme Court this past term.? He is actually an originalist of a different mold.? He actually believes in what he calls a "presumption of liberty."? Anyway, since this topic has been debated and wrote about so much in the past 10 years, because there has been such a fight over the confirmation process, I am sure that most Con Law professors have read Federalist 76 quite a few times in recent years.? In fact, I wrote a paper on the "advise and consent" clause while in school, and it was the first thing that popped into my mind.

[Surfrider]

Can This Nomination Be Justified?

By George F. Will

Wednesday, October 5, 2005; Page A23

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

Under the rubric of "diversity" -- nowadays, the first refuge of intellectually disreputable impulses -- the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation. Identity politics holds that one's essential attributes are genetic, biological, ethnic or chromosomal -- that one's nature and understanding are decisively shaped by race, ethnicity or gender. Categorical representation holds that the interests of a group can be understood, empathized with and represented only by a member of that group.

The crowning absurdity of the president's wallowing in such nonsense is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing Miers, deplored judges who "legislate from the bench."

Minutes after the president announced the nomination of his friend from Texas, another Texas friend, Robert Jordan, former ambassador to Saudi Arabia, was on Fox News proclaiming what he and, no doubt, the White House that probably enlisted him for advocacy, considered glad and relevant tidings: Miers, Jordan said, has been a victim. She has been, he said contentedly, "discriminated against" because of her gender.

Her victimization was not so severe that it prevented her from becoming the first female president of a Texas law firm as large as hers, president of the State Bar of Texas and a senior White House official. Still, playing the victim card clarified, as much as anything has so far done, her credentials, which are her chromosomes and their supposedly painful consequences. For this we need a conservative president?

[Surfrider]

Slouching Towards Miers
Bush shows himself to be indifferent, if not hostile, to conservative values.

BY ROBERT H. BORK
Wednesday, October 19, 2005 12:01 a.m. EDT

With a single stroke--the nomination of Harriet Miers--the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work--for liberals.

There is, to say the least, a heavy presumption that Ms. Miers, though undoubtedly possessed of many sterling qualities, is not qualified to be on the Supreme Court. It is not just that she has no known experience with constitutional law and no known opinions on judicial philosophy. It is worse than that. As president of the Texas Bar Association, she wrote columns for the association's journal. David Brooks of the New York Times examined those columns. He reports, with supporting examples, that the quality of her thought and writing demonstrates absolutely no "ability to write clearly and argue incisively."

The administration's defense of the nomination is pathetic: Ms. Miers was a bar association president (a nonqualification for anyone familiar with the bureaucratic service that leads to such presidencies); she shares Mr. Bush's judicial philosophy (which seems to consist of bromides about "strict construction" and the like); and she is, as an evangelical Christian, deeply religious. That last, along with her contributions to pro-life causes, is designed to suggest that she does not like Roe v. Wade, though it certainly does not necessarily mean that she would vote to overturn that constitutional travesty.

There is a great deal more to constitutional law than hostility to Roe. Ms. Miers is reported to have endorsed affirmative action. That position, or its opposite, can be reconciled with Christian belief. Issues we cannot now identify or even imagine will come before the court in the next 20 years. Reliance upon religious faith tells us nothing about how a Justice Miers would rule. Only a commitment to originalism provides a solid foundation for constitutional adjudication. There is no sign that she has thought about, much less adopted, that philosophy of judging.





Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers's performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that's just about every issue imaginable. What we can expect in all probability is platitudes about not "legislating from the bench." The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.
But that is only part of the damage Mr. Bush has done. For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials--debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like--the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply those principles to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges.

By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of "Don't ask, don't tell" admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism. The society, unlike the ACLU, takes no public positions, engages in no litigation, and includes people of differing views in its programs. It performs the invaluable function of making law students, in the heavily left-leaning schools, aware that there are respectable perspectives on law other than liberal activism. Yet the society has been defamed in McCarthyite fashion by liberals; and it appears to have been important to the White House that neither the new chief justice nor Ms. Miers had much to do with the Federalists.





Finally, this nomination has split the fragile conservative coalition on social issues into those appalled by the administration's cynicism and those still anxious, for a variety of reasons, to support or at least placate the president. Anger is growing between the two groups. The supporters should rethink. The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality). This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values. He appears embittered by conservative opposition to his nomination, which raises the possibility that if Ms. Miers is not confirmed, the next nominee will be even less acceptable to those asking for a restrained court. That, ironically, is the best argument for her confirmation. But it is not good enough.
It is said that at La Scala an exhausted tenor, after responding to repeated cries of "Encore," said he could not go on. A man rose in the audience to say, "You'll keep singing until you get it right." That man should be our model.

Mr. Bork is a fellow of the Hudson Institute and editor of "A Country I Do Not Recognize: The Legal Assault on American Values" (Hoover, 2005). He is co-chairman of the Federalist Society.