Why Miers Must Be Defeated (Founding Fathers Didn't Envisage Cronyism For High Offices Alert)

Imagine if Bill Clinton had nominated his personal attorney and White House counsel to a post on the U.S. Supreme Court.

Somehow, I can't imagine my conservative friends supporting the nominee – particularly if there were questions about controversial documents being destroyed that might actually shed light on scandals of the past.

The stunning series of articles by WND columnist Jerome Corsi, raising serious and nagging questions about Harriet Miers' role as chairman of the Texas Lottery Commission and the cover-up of the way that story intersects with George W. Bush's National Guard service, points up why this kind of cronyism was frowned upon by the Founding Fathers.

In fact, this is the very reason the framers of our Constitution called for the advice and consent of the U.S. Senate in all Supreme Court nominations.

If we are all honest with ourselves, it is clear Miers' name was put forward for one major reason – she is a friend and confidante of the president. Her selection is clearly a reward for services rendered and for her loyalty to the president.

Those do not make for qualifications for the Supreme Court, but, according to the men who debated and authored the Constitution, they should disqualify her.

For instance, in Federalist Paper 76, Alexander Hamilton explains why his colleagues gave the Senate power to confirm or reject Supreme Court nominees:

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 ...

The idea clearly was to shame a president from promoting cronies to the high court.

[The President] 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.

Can anyone argue, on the basis of these clear statements, that the Founders steadfastly opposed the idea of Supreme Court appointments such as Harriet Miers or Abe Fortas during the Lyndon Johnson era?

The idea was to create an independent judiciary, not one beholden to the executive branch of the federal government.

Now it's up to the Republican-controlled U.S. Senate to decide if it, too, is little more than a rubber stamp for the president.

There have been many perfectly rotten Supreme Court nominations in the past. Harriet Miers is certainly not the worst. But with the American people clamoring as never before for real judicial reform – starting in the Supreme Court – and with an abundance of qualified potential nominees from which to draw, this nomination should be withdrawn or defeated by the U.S. Senate.

I know few in Congress care about the original intent of the Founders. I know few in Congress understand the original intent of the Founders. I know most members of the House and Senate violate the spirit and the letter of the Constitution on a daily basis. But senators who claim to be voting for Harriet Miers because she is an "originalist" should indeed be ashamed.

Her very nomination is in direct contradiction to the vision of the heroic and inspired men who shaped and framed all that made America great and unique in the history of the world.

Not so fast here, latching on to this selective excerpt from Federalist 76.

"He [the President] 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 power of nomination is unequivocally vested in the Executive... The blame of a bad nomination would fall upon the President singly and absolutely."

As Bill Bennett advised a caller to his show on another subject, you'd better be careful using that argument in favor of seeming to advocate that citizens, in advance of the constitutional process, "blame" the President for what they anticipate will be a "bad" nomination. Here is the reason:

The Founders, as usual, recognized the tendencies of human nature when they structured the provisions of the Constitution. What was not quoted in your excerpt from THE FEDERALIST No. 76 were words that preceded that statement, as follows:

"Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.

"The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. 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. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: ``Give us the man we wish for this office, and you shall have the one you wish for that.'' This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations."

Wise men, those Founders!!! Although the last three sentences related to deals which might be by opposing party members, President Bush is facing a similar kind of deal making from members of his own party, saying, in essence, "You change your nominee or we won't support you," but the Founders' principle would apply here too.

Another reason for caution in using this excerpt from Federalist 76 as argument against Miers lies in the fact that one can use it for making exactly the opposite argument (which Bennett was trying to do in the other matter).

The Founders held the long historical view of their actions, not one of concern with their contemporaries' praise or criticism. They wrote often of the view posterity would hold of them and their devotion to the cause of liberty.

One thing this President has made clear in his public statements and speeches: his sense of purpose about America's role in preserving liberty in the world. In that sense, one must conclude that he, like the Founders, knows that this decision will be judged by posterity and that his reputation in history may depend upon this choice.

We do not do justice to the wisdom of the Founders when we apply portions of Federalist 76 to critics who are outside of the constitutionally-prescribed process.

"Ruth Buzzi Ginsberg worked for the ACLU, an organization just to the left of Communism. That in itself should have disqualified her based on her lack of judgment. Not so. She was confirmed overwhelmingly."

My disagreement with justice Ginsburgh is philosophical. Her qualifications were fine. The two are NOT the same. Presidents get to appoint people who reflect their views. Clinton won the election and we lost. As I have repeatedly told my liberal friends who want to block Bush's nominees... there is a price to loosing an election. As for the ACLU being communist or even close to that. That is so ridiculous that it does not bear further discussion. Please avoid hysterical polemics. Demonizing people you don't agree with does not impress me. I don't like them. But they are not communist or anywheres near it. And on a few rare occasions I have actually agreed with them. Even a stopped clock is right twice a day. This is the 2nd time in as many days that I had someone refer to people they did not agree with as communists. Thats a bad sign.

"There have been other Justices who were not judges before they were confirmed. She may be the best of the lot or at least equal to them"

This is true. But they had some alternative qualifications. And if they did not, then they should not have been appointed. It is entirely possible she is one of the greatest legal intellects of the age. But if this is the case, I have found no evidence of it. Its not her philosophy thats the issue. Its her credentials. Name some great work of legal scholarship that she wrote. Name a major law school she taught at. Name an elective office above the local level that she held. Name a great case of constitutional import that she litigated. How many times has she argued cases before the Supreme Court? If she is qualified for the supreme court so is my tax attorney.

Congressman Billybob wrote an interesting FR piece posted on October 6, 2005, entitled, "Harriet Miers and the Pigpen Press."

Here is one excerpt:

"Last is the cronyism charge, based on the fact that the President has known the nominee a long time. 'Crony' is a charged word, one step shy of being a henchman of a burglar. Would one entrust ones money to a crony of Ken Lay of Enron? Of course not. But what about a crony of Warren Buffett of Berkshire Hathaway? That way leads to wealth and success. Again, Pigpen journalism."

In another post to that thread, John raised an interesting question as to the perjorative nature of the word 'crony' when used as Bush's critics are using it today. He suggested considering the phrase, "Jesus and the 12 cronies."

Might one suggest that not all trusted associates are 'cronies.' It depends on one's level of trust of the executive, doesn't it?

"I think that the SCOTUS is well-served to have a "common man" in their ranks. It's the common man who has to live by all of Washington's laws, so the common man should be the one doing some of the judging."

Rubbish. The Supreme courts decisions affect the lives of 300 million people and many others outside of our borders. Its not a game for armatures.

"She packs heat. For 2nd Amendment supporters, having a SCOTUS Justice who packs heat carries some meaning"

Carrying a gun is not a qualification for the job. My Uncle Dean carries a gun and has a hard time putting two complete sentences together. (I love him dearly but he is not the brightest bulb on the tree.)

"She's pro-life (several pro-life groups have already endorsed her)."

Her judicial philosophy (as I have stated about 20 times) is not an issue with me. Presidents get to appoint people who they feel reflect their views. Thats true of Dems and Reps alike. If you win, there are benefits that come with it. Unless the nominee is a total wing nut philosophy should not be an issue to anyone but the president.

"She's a mission-sponsoring, evangelical fundamentalist Christian"

Religious beliefs should NEVER be a topic when discussing a supreme court nominee or someone running for elective office. They are irrelevant. And if her religious views are for some reason NOT irrelevant to the way she would do her job then she should be defeated on that basis alone.

"She led the committees that selected Judges Pryor and Janice Rogers Brown for the federal bench."

Not wanting to belittle that point, but seriously any lawyer could have done that. In fact you really would not have to be a lawyer.

"What's she's not is an elite judge from an elite University"

Your anti-intellectualism has already been noted. But so called elite universities tend to produce really good lawyers. I am sure its merely coincidence of course.

"She's not red meat for a showdown with Senate Democrats."

To hell with the Democrats. They lost the election. Bush gets to choose QUALIFIED nominees who reflect his judicial philosophy. She is not qualified IMO.

"For myself, my biggest complaint is that she is too old...but that being said, we conservatives will win either way, whether she is confirmed or not.

Life is good."

I tend to agree.

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