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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