Hamilton on Miers

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Randy Barnett, in the Wall Street Journal, cites Alexander Hamilton on the purpose of the Senate's "advice and consent":

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.

And speaking of being an obsequious instrument of his pleasure (and can anyone now read that without thinking of Clinton?), here's RNC head Ken Mehlman's reason for supporting the Miers appointment:

Ken Mehlman, chairman of the Republican National Committee, yesterday held a conference call with conservative leaders to address their concerns about Miers. He stressed Bush's close relationship with Miers and the need to confirm a justice who will not interfere with the administration's management of the war on terrorism, according to a person who attended the teleconference.

Now, the implications of that are appalling. Bad enough if Miers merely has a hyper-deferential view of executive power and a stingy regard for civil liberties in exigent circumstances. The implication of juxtaposing those two points is that Miers' deference would stem not from any considered judicial philosophy, but from her personal connection to and admiration for Bush. I'd like to see a transcript of that call to see exactly how Mehlman presented the point, but at a first pass, it's unsettling.

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  1. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit

    Ah, the good ole days. When politicians still had senses of honor, and of shame.

  2. need to confirm a justice who will not interfere with the administration’s management of the war on terrorism

    In other words, a rubber stamp for the current administration’s tendency to remove liberties in the name of terruh. Unsettling, indeed.

  3. I wonder if the “it’s Jesus’ own president, you should trust him” line still works with the troops.

    I wonder what wossisname, the crook who got fired from the Judiciary Committee for accessing private memos, and who’s now the self-appointed poobah of all things righty and judicial, thinks about this.

  4. Look, all I’m asking is for you to trust this president.

  5. Speaking of honor and shame…

    While everyone (left and right) is bashing Bush for this nomination–justifiably, IMHO–shouldn’t we spare some time to bash the nominee herself? She seems like a decent person overall, and is obviously a competent attorney, but her lack of qualifications should be as obvious to her as to everyone else.

    Would I be too harsh to state that, if she had any sense of honor or shame, she would have refused the nomination?

  6. Excellent column.

  7. JMoore – what lack of qualifications? I heard her talk and wasn’t impressed, but most folks in position to judge think she’s well qualified for the job. (Except for Barnett, who seems upset that she’s not an academic.)

    More worrying is her loyalty to the President. That quote from Mehlman is downright frightening.

  8. I hope someone brings up the Alexander Hamilton quote at Bush’s press conference today.


  9. The implication of juxtaposing those two points is that Miers’ deference would stem not from any considered judicial philosophy, but from her personal connection to and admiration for Bush.

    Which isn’t neccessarily a bad thing. It means executive power will only be expanded during this administration and can be rolled back once the presidency changes since she won’t be as beholden to the next president. Just imagine how much worse it would be if it was a judicial philosophy of expanding executive power instead of just expanding executive power just for Bush.

  10. “Would I be too harsh to state that, if she had any sense of honor or shame, she would have refused the nomination?”

    I’m still leaning toward my theory that she has a terminal illness, mere months left to live, and Bush appointed her as his own little “Make-A-Wish Foundation” effort.

  11. “…since she won’t be as beholden to the next president.”

    Oh, and her guru won’t giver her explicit instructions for her to follow later, when she has the unique capacity to carry out his last wishes?

  12. “Which isn’t neccessarily a bad thing. It means executive power will only be expanded during this administration and can be rolled back once the presidency changes since she won’t be as beholden to the next president.”

    (donning triple-ply tinfoil hat)
    Assuming there *is* a next president… They could be positioning Miers to support an attempt to seize control for good instead of relinquishing it after the 2008 election.

  13. “Assuming there *is* a next president… They could be positioning Miers to support an attempt to seize control for good instead of relinquishing it after the 2008 election.”

    I actually had the exact same thought after reading the Mehlman stuff above.

  14. I like the way you think, Jon Hendry. And by the way, my tinfoil hat is fleece-lined for those cold Syracuse winters.

  15. apparently the mere fact that she hasn’t sat as a judge is the basis for saying she lacks the necessary qualifications.

    i would juxtapose her qualifications against the “qualifications” of the various clowns the libertarian party has nominated and gotten me to waste my vote on over the years.

  16. I can see how it would be useful to have a really close crony on the Supreme Court when the indictments, impeachments, war crimes tribunals, and the like start rolling in.

    That’s the only reason I can figure. I really thought he’d nominate some firebreathing fundy nut to get the base aroused.

  17. i would juxtapose her qualifications against the “qualifications” of the various clowns the libertarian party has nominated and gotten me to waste my vote on over the years.

    Even if those clowns got elected, they wouldn’t have lifetime tenure, nor would they have the final word in what is and is not allowed in this country. I’d say the stakes are a bit higher here.

  18. No one seriously believes she’s qualified. Unfortunately, most people are hesitant to say that because they don’t want to appear elitist. Also, she’s so horrifically unqualified that I think there is some hesitation to attack her credentials simply out of pity. It’s like Carrie being nominated for homecoming queen. No one quite has the heart to tell her she’s far too ugly and popular to be seriously considered for the position.

  19. don’t forget that the next president is, i’m sure the planning goes, jeb bush. her fealty is to the bush dynasty.

    it is really impressive, i think, the manner in which the bush political machine is putting its imprimateur on the legislative and judicial branches.

    the man hasn’t had to veto anything in five years — ultimately because he so completely controls the legislative agenda. and not only has he has roused his base to demand revolutionism in constitutional interpretation, opening a window on an immediate abandonment of two centuries of existing republican law in favor of imperial edict under the rubric of “originalism” — he’s appointed two justices to the court who are ostensibly personally loyal servants (without so much as a pip of opposition from the congress he essentially controls, of course).

    i’d be surprised if anything but an obvious coup d’etat spurred the mccain 14 to action — they’re in it for themselves, not the republic, i suspect. but frankly i’m not at all sure that they have the power they suppose themselves to have. the white house could, even in its weakened state, crush them fairly easily if they really presented an obstacle.

  20. Yeah, good column and good quote, even if it was from Hamilton. (I prefer the anti-federalists.) I just hope Mr. Burnett got George Will’s permission to quote Hamilton.
    (Does anyone else, ever?)

  21. In the photos, the way she looks at Bush, Nancy Reagan-style, and if Frum is correct, the fact that she sees him as the most brilliant man ever met, and she would back his policies up as judge, and she never married but spends more time at the White House than Monica L ….

    she’s a woman in love

  22. “I heard her talk and wasn’t impressed, but most folks in position to judge think she’s well qualified for the job.”

    Are we talking about her tenure with the lottery commission? Her tenure on the city council? …I’d cite her tenure at the White House, but we’ve seen cronies elevated within this White House before.

    I think we’ve all noticed that just as the Bush White House seems to qualify nominees based on their loyalty to the White House, so the White House’s supporters tend to qualify arguments relative to a proponent’s White House loyalty as well. …but I don’t remember seeing the President so obviously counting on and leaning on the expectation that his supporters would support a nominee just because he trusts her personally.

    …The President stuck with the same argument over and over in his press conference today–I trust her so you should support her. …Baa Baa Baa.

    Did anyone else hear the President’s response to Kelly O’Donnell’s abortion question? …Do any of you believe his response was true?

    I’ve found myself waffling on whether to support this nomination. I was afraid it would be Alberto Gonzales. …I thought I’d support her under the logic that–if I can borrow the phrase–Gonzales would have been worse! …but that’s silly.

    Those of you who have suggested that the President is making a mockery of the Senate’s advice and consent function are right, and, pending further evidence, I think that’s reason enough to oppose this nomination.

  23. Here in central Texas, Miers is regarded as a deeply religious fundy. She is not a loud-mouthed evangelist so it is an overlooked point. You can count on her to further erode the thin separation of church and state. The march towards theocracy will accelerate with her appointment.

    Her qualifications for the Supreme Court are weak. So she ran the fucking lottery in Texas and she adores Dubya – BFD. The photo of Miers with Dubya makes her look like a lovestruck teenybopper. This appointment is less about ideology and more about sustaining the Bush dynasty. Jon Hendry may be wise to the real motivation. Will the administration push the Supreme Court to suspend elections in 2008? Will they declare the need for a “temporary” dictator in the face of some national emergency? Will they suspend any provisions of the constitution if the terrorists set off a nuke or dirty bomb in the US?

    This is a lousy nomination. The entire Federal government is beginning to resemble a Bush fan club. Meirs and Roberts were selected because they will do whatever Bush tells them to do.

  24. Here in central Texas, Miers is regarded as a deeply religious fundy. She is not a loud-mouthed evangelist so it is an overlooked point. You can count on her to further erode the thin separation of church and state. The march towards theocracy will accelerate with her appointment.

    Her qualifications for the Supreme Court are weak. So she ran the fucking lottery in Texas and she adores Dubya – BFD. The photo of Miers with Dubya makes her look like a lovestruck teenybopper. This appointment is less about ideology and more about sustaining the Bush dynasty. Jon Hendry may be wise to the real motivation. Will the administration push the Supreme Court to suspend elections in 2008? Will they declare the need for a “temporary” dictator in the face of some national emergency? Will they suspend any provisions of the constitution if the terrorists set off a nuke or dirty bomb in the US?

    This is a lousy nomination. The entire Federal government is beginning to resemble a Bush fan club. Meirs and Roberts were selected because they will do whatever Bush tells them to do.

  25. Sorry about the double post. Do the Bushites have some remote control over the H&R server? Do I need to increase the thickness of my tinfoil hat?

  26. Do I need to increase the thickness of my tinfoil hat?

    I’m tellin’ ya–it’s the web cops! …They were after Jennifer yesterday.

  27. Not supporting the nomination, but… what exactly are the qualifications for sitting on the SC? I’ve heard lot’s of people, left and right, say she’s a crony, unqualified. Now I’ll agree with the first, but as to the second; I’m not a lawyer nor a judge, have no interest in being one. But I think I’d be qualified to sit on the SC. The Constitution is not a really complicated document. I think it takes a smart, well read person with maybe a thoughtful disposition (ok, so maybe I’m not qualified on the last point). But to me, hanging around the court house and lawyers your whole life does not a qaulified person make, nor not having that history make you unqualified. To those who say she’s unqualified, what standards do you use to judge qualifications and why?
    -Karl

  28. Karl-

    I think the burden of proof here is on the administration. Why is she qualified? I have yet to see anyone defend this nomination without resorting to their blind and undying faith in this president.

  29. To those who say she’s unqualified, what standards do you use to judge qualifications and why?

    I think it’s important to be on the record. I’m not saying that the President should use a litmus test–and like I said, I think the President’s response to O’Donnell’s abortion question today was bullshit–but I think the Senate’s advice and consent responsibility requires some kind of record to judge.

    …I sure as hell don’t think the Senate should just take the President’s word for it.

    And I think it’s unfair to send up a nominee with no real record of legal opinions and expect her not to have to take positions on controversial questions in the confirmation hearing. …Indeed, in a case like this, I think the Senate is duty bound to grill the nominee.

  30. Hamilton nailed it:

    …or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

  31. Do I need to increase the thickness of my tinfoil hat?

    Maybe so. It doesn’t seem to be blocking out the bizarre paranoid fantasies.

    Will the administration push the Supreme Court to suspend elections in 2008? Will they declare the need for a “temporary” dictator in the face of some national emergency? Will they suspend any provisions of the constitution if the terrorists set off a nuke or dirty bomb in the US?

  32. I posted this on another thread, but I think it fits here too: it’s a damned imperial attitude for Bush to take, choosing a potential Supreme Court justice not on the grounds of what’s best for the country, but on what would make him most comfortable for the three years remaining of his presidency.

  33. Tom Crick – So I read that to mean you don’t consider her ‘unqaulified’. Just given that she doesn’t have a public record on which to judge her, she should be grilled during the confirmation and based on her (judicial philosophy/stance on specific issues) be confirmed or not? Do I read that right? That for you qualification for the SC is having an established record?

    Girth – I think you’ve just shifted the question. What standards would you use to judge the White Houses claims of ‘qualified’? Is it holding a certain post or type of job? Having traceable opinions on matters of judicial philosophy or specific issues?
    -K

  34. Xavier,

    No one seriously believes she’s qualified….No one quite has the heart to tell her she’s far too ugly and popular to be seriously considered for the position.

    I’ve heard lots of people say she’s ugly, but it’s not true that no one thinks she’s qualified.

    OTOH, I, too, hope she gets Borked. (Though she’s 60 and single, so she it may be difficult…)

  35. Just given that she doesn’t have a public record on which to judge her, she should be grilled during the confirmation and based on her (judicial philosophy/stance on specific issues) be confirmed or not? Do I read that right? That for you qualification for the SC is having an established record?

    Have you ever had to hire somebody? …Did you ever hire somebody based on the fact that he or she wasn’t unqualified? …There’s a built-in, structural bias in favor of those who can affirm qualification–as there should be.

    You seem to suggest that I’m saying two contradictory things. 1) That because she doesn’t have a record to judge on, I think they should grill her in the confirmation hearings so that they have something with which to form an opinion. 2) That the qualification is having an established record. …So, let me try again.

    Personally, if I was charged with the responsibility of consenting to a nominee and I didn’t have enough information to make a responsible decision, I’d vote the nominee down.

    …At the same time, I think the Senate should grill all the pertinent answers from the nominee in the confirmation hearing that it can. Maybe they can get enough information out of a nominee in a hearing to make a responsible decision. …but I doubt it.

  36. Karl-

    I’m looking at the resume of a SCOTUS nominee and asking the question, “What qualifies this woman to sit on the SC other than she has a law degree?” I’m willing to be persuaded, but I need reasons.

    There are no, nor need there be, any specific standards for nominees. You can know it when you see it. I don’t see it.

  37. I agree with Girth. Good isn’t good enough. Excellence should be the goal. Whatever one might think about Roberts’ views and the way he answered questions, nobody disputed the excellence of his resume.

    Miers is good. But she doesn’t seem to be excellent.

  38. I’ve heard lots of people say she’s ugly, but it’s not true that no one thinks she’s qualified.

    I’m sorry. My post was very poorly written. I was trying to make an allusion to Carrie (a movie I haven’t seen in years and probably don’t remember correctly anyway). Basically, I’m comparing Miers to the poor girl who’s nominated for homecoming queen as a cruel joke when she’s clearly not popular enough to win and no one quite has the heart to tell her.

    Meirs is similar. It’s not easy to come out and say “She’s a nice enough woman, but she’s just clearly not good enough.” But it’s the truth. She’s difficult to attack because she can’t really be villified. She’s pathetic, not evil.

  39. Xavier — Do you think that when Miers is sworn in, the other Surpremes are gonna dump a bucket of cow blood on her?

    That would be cool.

  40. They don’t even need to dump pig’s blood on her, Stevo–just turn off the Supreme Court air conditioner for one day and watch her eyeliner run a little Rand McNally roadmap action all over her face.

  41. Xavier, I got the joke and the metaphor…(I didn’t get the allusion to Carrie, though.) I didn’t mean to dismiss the point – it may be that people are treading lightly. But I’ve seriously heard people talk about how she looks. And I think a lot of people do think she’s qualified (assuming she has the resume they’ve let out and she’s been good at what she’s done).

    I don’t know, though…if someone is as unqualified as you and Tom Crick and others think she is, it’s not difficult to come out and say it. People don’t know her, it’s not like they’d be bagging on Mrs. Cunningham.

    I think the Senate should tease this out, and if they find her thoroughly unqualified, they should pass. (Of course, not all senators are really qualified to interview her, are they?)

    Anyway…this thread might be dead soon, but what do you all think qualifies someone as a serious candidate? Experience as a judge? Published papers? What’s that necessary thing that someone needs to have?

  42. what do you all think qualifies someone as a serious candidate? … What’s that necessary thing that someone needs to have?

    Knowing how to read with understanding.

  43. what do you all think qualifies someone as a serious candidate? … What’s that necessary thing that someone needs to have?

    To add to Raymond’s comment, I’d say open-mindedness, flexibility and the ability to admit when one is wrong.

  44. Tom + Girth – I’m trying to understand what criteria you apply to being qualified. Is there some objective set of criteria you can point to that makes you say this person is qualified, or they are not? I have participated in hiring decisions and basically the question is whether one can do the job or not; of course astrophysics postdocs maybe have a bit more objective measure of qualifications – papers published, original research, amount/quality of peer review, do their interests fit in with current research directions, etc.

    Tom – what ‘information’ do you consider relevant to determing whether the nominee meets your standards of qualification? It almost seems that it’s an ‘obscenity’ standard – I know it when I see it. I’m not trying to be a pain in the ass or anything. I’m tyring to figure out what about this particular nominee leads people to say she’s unqualified. To do that, one needs some semi-objective standard of what makes one qualified. It seems the main difference between her and previous nominees is she is not a sitting judge nor a particularly distinquished lawyer – are those the qualities that lead to a nominee being qualified?
    -K

  45. According to an article in “Editor and Publisher” and now linked on Fark, Miers was the one who briefed Bush on the infamous “Bin Laden determined to attack United States” memo. I would not say that reflects well upon her.

    http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1001221205

  46. To do that, one needs some semi-objective standard of what makes one qualified.

    I think you’re missing my point.

    When evaluating a nominee’s record, I don’t know that there is any comprehensive, semi-objective standard that Senators should use to determine whether a nominee is qualified. …but there needs to be a record, and, with this nominee, I don’t see one.

    …The Senate, in my opinion, can not responsibly consent to a nominee without considering the nominee’s record. In lieu of that, if a nominee has little or no record, then I think the Senate should use what evidence it has–and, indeed, fish for whatever evidence it can get.

    …and the President’s word wouldn’t be enough to get my vote.

    So, please note, I’m not talkin’ methodology, I’m talking substance. Asking what the standard is is like asking which ruler to use. …I’m pointing out that there’s nothing to measure!

  47. Ok Tom – Clear. But record on what? That is a semi-objective standard. What evidence should they fish for? What in her past activity goes into the record of her life that is relevant to her nomination to the Court?
    -K

  48. But record on what? That is a semi-objective standard. What evidence should they fish for? What in her past activity goes into the record of her life that is relevant to her nomination to the Court?

    Once again, I don’t know that there is a semi-objective standard by which Senators should measure the worthiness of a nominee.

    …If we assumed there was none, would you suggest that this means the Senate should rubberstamp the President’s choice?

  49. Tom – No, not all – no rubber stamps. My objective standard would be asking a couple of simple questions. Does the Constitution grant rights to citizens or spell out the limited powers the governement has? In looking at cases that come before you, would your first question be – is congress explicitly granted authority under it’s enumerated powers to enact said legislation? That’s what I’m trying to get at vis whether this particular nominee is qualified or not. I’d like to know what those who have misgivings as to whether she is ‘qualified’ are using as their standard of qualified. To me, one could have the most stellar of lawerly carreers, be mensa^3 but were they not to answer those simple couple of questions (maybe a few more to flush out the meaning of ‘use’) to my satisfaction, I wouldn’t vote for them.
    -K

  50. “To me, one could have the most stellar of lawerly carreers, be mensa^3 but were they not to answer those simple couple of questions (maybe a few more to flush out the meaning of ‘use’) to my satisfaction, I wouldn’t vote for them.”

    I’m with you Karl. …but I would add that I’d like to see some of that logic in action, in a case that was argued somewhere, on a constiutional question. …Doesn’t everybody tell people what they want to hear in a job interview? If all she does is say what she’s supposed to in front of the cameras, is that good enough? I want to see that she’s held certain beliefs for a long time, when her reputation was on the line, if I can. …That’s all.

  51. Puritan pundits pull out their pliers,
    Pinching the Prez over Harriet Miers,
    Stunned that they’ve received no surety
    Of her ideological purity.
    Liberals of suspicious mind
    Naturally, though, expect to find
    Anyone Mr. Bush delivers
    “Pure” enough to give them shivers.

    And neither are greatly mollified
    By finding her so unqualified.
    Will any old lawyer suit that Court
    Who knows how to serve a half-baked tort?

    But the greatest objection to letting a crony in
    Is that it’s so patently un-Hamiltonian.
    Will the whole Senate exclaim with defiance, “We
    Shun insignificance! Veto pliancy!”
    Or will Mr. Bush get to keep his treasure,
    “Obsequious instrument of his pleasure?”

    Poor Mr. Hamilton can’t be blamed;
    Who’d think of a leader who can’t be shamed?

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