October
7, 2005
Advice and Consent
By Ronald
J. Pestritto
For all
the grandstanding and crystal-ball gazing performed in the past
few days, we don't know what kind of Supreme Court justice Harriet
Miers will turn out to be. Conservatives who are throwing themselves
off of a bridge because they are convinced that she, like Justice
Souter, will join the Court's liberal bloc have just as little
to go on as liberals who predict that she will help move the Court
to the Right. The fact is that there is very little basis for
speculation either way. But there are some things that we do know,
and they do not reflect well on the president or his nominee.
Specifically, the very practice that the Constitution's framers
intended to curtail via the advice-and-consent process—the
appointment of home-state friends who have questionable credentials—appears
to be involved in the president's decision.
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In
the discussion of presidential nominations in Federalist
76, Alexander Hamilton worried that "There is nothing so
apt to agitate the passions of mankind as personal considerations,
whether they relate to ourselves or to others, who are to be the
objects of our choice or preference." He recognized that
cronyism was a serious danger in the appointment of federal officers
(judicial and otherwise), and hoped that the president "would
be less liable to be misled by the sentiments of friendship and
of affection." Should the president fail in this obligation,
Hamilton made clear that the very purpose of the Senate's confirmation
power was to provide "an excellent check upon a spirit of
favoritism in the president" and "to prevent the appointment
of unfit characters" that might result from "State prejudice,"
"family connection" or "personal attachment."
Thus, in contrast to the modern practice of judicial confirmations
as trials by ordeal, the framers envisioned a process where the
president would get much more deference—where the check
served not to determine the ideology of the nominee, but whether
their nomination was a function of merit or based on personal
favoritism.
Faced then with a
nominee who is the personal lawyer of the president, and who is
from the president's home state, Hamilton begs us to ask what
are Miers' "other merits," or lack thereof? Miers' lack
of judicial experience or credentials has been cited by many critics
of her nomination. While this is an important point, it does not
quite get to the root of the problem; after all, as the administration
is constantly reminding us, the late Chief Justice Rehnquist had
no judicial experience prior to his nomination to the Court, as
was the case with many distinguished justices in the history of
the Court. The more relevant criticism here is that Miers quite
obviously lacks any constitutional credentials or experience—there
is no evidence from her background that she has ever seriously
engaged matters of constitutional interpretation, or thought seriously
about the ideas and intent of those who framed our Constitution.
This is not to say that we should buy into the Establishment view
that our justices ought to come from "elite" (read:
liberal) law schools; in fact, many of the fine candidates who
were passed up by the president graduated from law schools far
less "elite" than Miers' SMU. The problem is, instead,
that Miers' background offers no demonstrated knowledge of or
commitment to the original principles of the Constitution. The
Supreme Court is no place for on-the-job training in the principles
of the founding or constitutional interpretation.
Although Chief Justice
Rehnquist had never been a judge prior to serving on the Supreme
Court, he was well experienced in constitutional law as a result
of his Supreme Court clerkship and his work in the Department
of Justice. He was widely known for the quality of his legal mind.
Miers, by contrast, is a corporate lawyer from the north Texas
business community, whose practice focused largely on writing
contracts and litigating contracts and torts—areas of law
which, while important, make up an ever-decreasing portion of
the Supreme Court's docket. She has no similar reputation as a
leading legal mind. She has held leading positions in bar associations
which speak to her capacity at administration, and has held political
appointments which speak more to her political than legal prowess.
However, neither her academic nor her professional record presents
the body of knowledge, scholarship, or familiarity with constitutional
issues that attended Rehnquist's record. It is therefore quite
a stretch to draw comparisons between the late Chief Justice and
a nominee whose most obvious credential is her personal devotion
to the man who nominated her.
Some have
made a straw-man of this cronyism objection, suggesting that using
it as an argument against Miers would also mean that George Washington
could not have appointed Hamilton to his cabinet, or John Adams
could not have appointed John Marshall to the Court. This was
a common response to Randy Barnett's reliance on Federalist
76 in a recent Wall Street Journal editorial. But such
a response fails to see the distinction between figures like Hamilton
and Marshall, on the one hand, and Miers, on the other. The key
phrase from the Federalist here is where Hamilton warns
against the nomination of candidates "who had no other
merit than that of coming from the same State to which [the
president] particularly belonged, or of being in some way or other
personally allied to him."
The point here, of
course, is not that the president should be prevented from nominating
his allies or associates, but rather that one's friendship with
the president should not be the primary qualification one has
for office. Yes, Hamilton and Marshall were close allies of the
men who nominated them, but independent of this they also happened
to be supremely qualified for the posts to which they were appointed,
as everybody at the time recognized. By contrast, this is exactly
where the Miers appointment runs into trouble: If one omits the
jobs that were given to her by President Bush—the jobs that
allowed her to be named to lists of the most powerful lawyers
in the country—all you have left is a corporate attorney
who has shown an ability for administration, both in her firm
and in bar associations. Although admirable, these, without any
evidence of a developed and clear understanding of the Constitution,
are not the qualifications of a Supreme Court justice. Or, to
put it more bluntly, the substantial weight of the evidence of
her capacity to be a justice—that is, the key government
positions she has held—are all the fruits of her continuing
relationship with the president. If this doesn't raise serious
questions about cronyism, I'm not sure what does.
Miers' nomination
will be seen by many in the conservative movement as a grave betrayal
by a president to whom much was rightly entrusted. All of which
makes this nomination rather puzzling, especially when one considers
the qualifications of those who were passed up and the incredibly
high stakes surrounding this nomination. It's not as if the president
did not have available to him as potential nominees some of the
finest legal minds in the country, many (probably most) of whom
could have won confirmation by the Senate where the president's
party holds a solid majority. This is why the excuse offered by
the administration's spokesmen—that the president has "looked
into the heart" of this nominee and that he somehow "knows"
that she'll be a judicial conservative—doesn't cut it. Even
reports of Miers becoming an evangelical Christian offer little
in the way of assurance. This spot on the Court is far too important,
and too many surer bets were available, for the president to take
what amounts to a reckless chance that his "gut" feeling
will work out in the end. Certainly this was not the President's
method when appointing the many fine lower court appointees who
earned the President the respect of so many on the right.
Miers may
turn out to be a perfectly fine justice, but there is nothing
in her record which would give us any basis to believe that. Ironically,
by attempting to avoid the pitfalls of modern senatorial "advice
and consent," President Bush has triggered more stringent
scrutiny under the framers' understanding of that term as a check
against the nomination of home-state cronies who lack the objective
qualifications for the office. The Senate should therefore diligently
exercise its check of advice and consent—not in the modern
sense as a litmus test concerning ideology, but as the framers
intended: to assure that her qualifications extend beyond mere
friendship with the president.
Ronald
J. Pestritto is associate professor of political science at the
University of Dallas and a fellow of the Claremont
Institute.
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