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Wednesday, October 12, 2005

The Supreme Court and the Loss of Principle

"Cronyism" is the title of Randy E. Barnett's op-ed piece in the Wall Street Journal of October 4, 2005. He makes a powerful point by quoting Alexander Hamilton in a passage from the Federalist Papers:
"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 Barnett's.)
He rightly notes that it's hard to think of a better example of improper favoritism, according to Hamilton's perspective, than the nomination of George Bush's personal lawyer and close ally, Harriet Miers, as the Chief Justice of the Supreme Court.

Many conservatives have noted that the choice of this justice for the Supreme Court may be the single most important decision George W. Bush will make. It will be the one decision that will most shape the future of the United States. How terrifying that this may be true. The Supreme Court as envisioned by the Founding Fathers was certainly the weakest of the 3 branches of government, there in part as a safety valve to help limit improper actions of others. In grotesque violation of the sacred document it should be protecting, today's Supreme Court has become a frighteningly powerful branch, one that seems to create new legislation at will, one that can force changes in spending, one that threatens to disrupt the fabric of society. Given that Congress has failed to take any actions to limit the runaway usurpation of power by the Court, I suppose it is vitally important that we start putting men and women in the Court who respect the Constitution and the vital limits to power defined therein. I suppose it is important that we put in people with the right judicial philosophy and with the intellectual power to resist the vast expansion of power the judiciary has assumed in recent years. Many people who voted for George Bush have hoped for that the Court could be reshaped under his direction so we could have brilliant defenders of the Constitution on the bench. And of course, for all those of us who are outraged by the injustice and violence of abortion on demand, we hoped that any appointees would be opposed to Roe v. Wade. At best, Ms. Miers is another stealth candidate on these issues.

More important, perhaps, than one's position on any social issue is Miers' position on the Constitution. For the Supreme Court to defend the principles of freedom and liberty, it must be able to act as a check and balance against the abuses of power in other branches (and not be guilty of such crimes itself). To select someone as a justice solely because she is known to be loyal to the leader of the Executive Branch of government, when there are dozens of more highly qualified candidates (e.g., Janice Rogers Brown), should make conservatives as well as liberals cry foul. This is certainly not what the Founding Fathers intended, and it's a shame if we let this improper nomination be sustained, regardless of whether the former Democrat, Harriet Miers, is now believed to be a conservative on social issues. We need someone who can act with a strong and clear philosophy to defend the Constitution and help maintain limits on what power hungry politicians (and judges) can do. Being the confidant and personal lawyer of a politician with an established appetite for expanding his own power and ignoring Constitutional restraints is hardly the kind of qualifications this country needs.

The Constitution is increasingly hanging by a thread, as Joseph Smith prophecied. Who will stand to defend it?

21 comments:

Stephen said...

Err, not "chief" justice.

Charles said...

I just had a couple of interesting thoughts and parallels to the Bible and Book of Mormon. I thought as we read in Mosiah, how Alma counseled against Kings. That if they were just it would be well to have them but that we should be warned against them. And also in the Book of Judges in the OT about how the people were ruled by judges.

A couple of good cautionary things.

That said, I'm not sure if they Miers appointment is good or bad yet. That ambiguity is probably the best reason to not appoint her.

Cronyism is bad when it is the only driving force. However, if the Senate agreed that she was qualified, it wouldn't matter where she came from.

I'm not sure how to respond when people say others were more qualified. It seems that there are no specific qualifications set forth for the position, and as such then no one can really be more qualified other than to have more legal experience. This is important to remember because being a judge is not a qualification and many have served without being judges prior. I've even heard that the court itself had suggested someone that was not a judge to balance it out.

The court that is supreme should be much like a jury in some cases, comprised of a cross section of the population. Not all Legal experts but all capable of understanding their role and providing fair arbitration for those before it.

Unfortunately the role has changed from validating congressional law as constitutional to challenging every law brought before it to create an elite legislation not approved by the people via demoratic voting.

Scary times.

Mike Parker said...

The New Republic has run a great article on the 15 worst cronies in the Bush administration (free registration required, or use BugMeNot). Giving powerful executive positions to friends is nothing new for U.S. Presidents, but Bush has taken it to new levels.

The problem is not just with the SCOTUS — corruption is rampant at every level of the federal government. The Constitution's limits on the powers of the state have been conveniently set aside, and the courts — who are supposed to provide the check on overreaching federal power — have turned into enablers.

That's the big concern about the Miers nomination: She's a Bush crony who isn't likely to rule against the administration when it violates the Constitution (like, for example, going to war without getting a declaration from Congress, or examining library records without getting a warrant).

Curtis said...

I personally oppose Miers because of her proven track record of being a poor judge of people. She has reportedly said that George W. Bush is the "most brilliant man I've ever met." That should put a question mark in everyone's mind!

She is also the niece of the big General Richard Miers.

Mike Parker said...

I don't know who's doing this parody of a Harriet Miers blog, but it's quite funny.

Samuel said...

"I personally oppose Miers because of her proven track record of being a poor judge of people. She has reportedly said that George W. Bush is the "most brilliant man I've ever met." That should put a question mark in everyone's mind!"

Wrong on both counts. I know the President personally. Long story but our families grew up together in Midland, Texas. He is older than me by a few years, but I have spoken to him many times on many different levels and he is indeed quite brilliant, regardless of what the press and the left says. He also appoints brilliant people in his administration, more brilliant than he. Which goes to show how he is not an egomaniac either, afraid to be surrounded by people smarter than he. I love how he is constantly underestimated by the media.

Yea, lets go back to the good old days when the most "brilliant" President in history was in office, "______." (NOTE: If you are over 35, insert "Jimmy Carter." Under 35, insert "Bill Clinton.") Hehe. Anyhow, second point.

"She is also the niece of the big General Richard Miers."

Harriet Miers is in no way related to Chairman of the Joint Chiefs, Richard Myers.

Mike Parker said...

I know the President personally...and he is indeed quite brilliant, regardless of what the press and the left says.

Samuel, can you give us any evidence that this is true, beyond your own word?

My observation (from his public speeches) is that he seems quite clueless about a good many things. By his own admission, he doesn't read newspapers, and he appears to not be aware of viewpoints other than those of his closest advisers.

He seemed to have no idea what was going on in New Orleans immediately after Katrina, and even praised Mike Brown publicly, even though the press was widely reporting the devastation and lack of relief. (I'm not blaming him for the poor relief response, I'm just saying he didn't seem to know anything about the problem.)

At the last press conference he was baffled by implications that Miers could turn out to be another Souter and that people would question his record as a conservative.

Get him away from a prepared text and he comes across as confused and out of touch.

Please tell me where his brilliance lies, since it doesn't seem to be in public speaking, information analysis, or general awareness of beliefs beyond his inner circle.

Curtis said...

It's not in his debates either. We have a serious man if Bush seriously is the most brilliant man Miers has ever known.
Sorry about the mistake on the relationship to Richard Myers. I had a bad source I guess.

Curtis said...

Serious problem that is.

Curtis said...

Aha, this is where I was confused. Julie Myers, 36 was chosen by Bush to run the Immigration and Customs Enforcement agency. She is the one that is the niece to Richard Myers and has the other crony connections.

On Bush's brilliance: I also doubt the most brilliant man in the world could be so wrong about weapons of destruction in Iraq. I stand by my vote of no confidence in Miers ability to judge.

Jessica said...

Shouldn't the most brilliant man she has ever known be able to articulate a sentence without sounding drunk, stoned, or just plain stupid?

Curtis said...

What I would like to see in the supreme court is a nominee who has spent his/her career defending the little people. My main beef with Miers (besides saying Bush is the most brilliant man she'd ever met) is that she has been a corporate lawyer all her career. To get someone in any office that is truly close to the little people would be a great thing.

Miers was praised by republicans for arguing in 2000 that Cheney wasn't a Texan (in spite of his texas drivers license, home listed as his residence etc.) so that the little glitch in the constitution which states that the electorate can't vote for a pair where one is not from their state.
Good thing we don't let the constitution get in the way of politics. Nice job Harriet.

Dan said...

I don't believe that you gave a valid argument against the appointment. The main argument was that she was a close personal friend of the President. In reality, we would expect the President to appoint someone he knows and trusts. And second, let's not forget how many prophets and apostles have been close personal friends of other prophets and apostles before their calling. Just because they're friends doesn't mean that they aren't the best person for the job. In fact, I'd even say that with God's hand in it, He might guide friendships to form so that in the future a calling or appointment can be made. I'm not saying that this is the best appointment for the position, just that the argument was not made effectively.

Curtis said...

Dan, are you speaking of my arguement? My main arguement, which is somewhat tongue in cheek, is that she said Bush was the most brilliant man she'd ever met. Also, that I'd like to see someone close to the little guy, not the huge corporations, but a true servant of the people.

Being close to one party on issues of judgement does present a problem. A judge needs to be impartial and deal the law justly.

Because of Miers closeness to Bush, how will she vote when it comes to issues close to his heart such as his abolishment of the need for Habeas Corpus via the Patriot Act? Or on issues such as torture? The Senate just passed a bill 90-9 which guarantees we treat prisoners humanely and Bush is threatening to veto it. Would she hold Bush's feet to the fire if he ignores the will of Congress if and when this becomes law?

In 2003 in the case of case of Gherbi v. Bush, the Bush Administration lawyers argued that US courts would not have jurisdiction over detainees even if they were being summarily executed. In its ruling, an astonished Ninth Circuit court wrote that the government asserted the power to do with detainees "as it will, when it pleases, without compliance to any rule of law of any kindthe US government has never before asserted such a grave and startling positiona position so extreme that it raises the gravest concerns under both national and international law." What would Miers do with this when it comes to dishing out justice against the most brilliant man she'd ever met?

These are important and upcoming issues in the court.

In summary, would she truly defend the constitution and hold the President accountable to established law, or would she side with her former boss (the most brilliant man she'd ever met)?

Mike Parker said...

Dan: I don't believe that you gave a valid argument against the appointment.

Okay, then:

1. She has no experience whatsoever that shows she's weighed Constitutional issues and written opinions on them.

2. Because she has no paper trail, and even people who know her don't know what she believes about key issues, she's a cypher. We don't know how she will rule, or even if she can rule effectively. We're being asked to trust GWB that he knows what he's doing (and the man doesn't have a great track record for that ... [cough] WMDs [cough]).

3. Those who support HM's nomination claim that opposition to her is based on sexism, yet their reasons for supporting her are themselves sexist: She was the first woman partner in a major law firm, the first woman to head the Texas state bar, etc. The qualifications offered by her supporters are based more on her genitalia than her legal experience.

How's that for starters?


The main argument was that she was a close personal friend of the President. In reality, we would expect the President to appoint someone he knows and trusts.

There's a difference between choosing someone you "know and trust" and choosing a close friend who, by all accounts, seems to have something of a crush on you. The first is a smart business decision; the second is cronyism.


And second, let's not forget how many prophets and apostles have been close personal friends of other prophets and apostles before their calling. Just because they're friends doesn't mean that they aren't the best person for the job.

Apples and oranges.


I'm not saying that this is the best appointment for the position, just that the argument was not made effectively.

At least we agree on the latter.

Walker said...

Mike,

While I'm definitely a little skeptical of the HM nomination (why Bush would choose someone so controversial when his approval is so low is beyond me), I even more skeptical about the argument that the lack of paper trail equates judicial incompetence. If we condemned every justice who had not previously served as a judge, we would condemning Chief Justice Earl Warren, the icon of modern liberals. True, Warren ended up being a kind of turncoat for Eisenhower's cause, but that "turn-coatishness" is now viewed as a tremendous blessing for civil rights in America. In other words, the proof will be in the pudding.

And a crush, Mike?

Mike Parker said...

Before Earl Warren was Chief Justice, he was Attorney General and Governor of California. No small feats, those. Kinda makes Dallas City Councilwoman and Texas state lottery chair ... well, look insignificant.

For insight into how deep the lurve is between Miers and GWB, see this New York Times article. She's practically panting all over him.

Bookslinger said...

Mike, I haven't made up my mind about Miers, but the stuff quoted in the NYT article is laughable. Of course people who have a certain level of friendship or acquaintanceship are going to praise each other.

The article's author tried it make it sound ominous, but it was limited to things like "letters contain in" a group that also contained "these other things."

So they praised each other at some award ceremony. That's what you do at award ceremonies.

It's just laughable to point to all that and say it's a basis for rejecting her.

Now maybe she really is unqualified, but the mutual admiration society in and of itself does not make her unqualified.

I laughed about has hard as I did when I saw the news tonight about the rehearsal for Bush's talk with soldiers in Iraq, and the media denouncing it as staged. But rehearsing it for the sake of the soldiers was probably a good gesture towards the soldiers to they could prepare their responses. Do you think any good politician doesn't practice or rehearse what he's going to say on televsion?

Who do you think those soldiers would rather talk with, Bush, Gore, or Kerry?

Wait, I know who I'd like to see on the SC. Let's bring back Bork. ;-)

Walker said...

Dallas Bar and Texas Bar Assocation President is a slight cut above "lottery chair"--no small feats either. To re-emaphasize: Bush's choice was politically stubborn, when he has little capital to be stubborn with.

That notwithstanding, Warren was the Attorney General for the State of California, a noteworthy achievement but hardly a sparkler in the legal field (there are 49 others after all). Also, the history of governorship in America should show that legal ingenuity is not as important as political capability in winning gubenatorial elections (Wallace, Bush, Schwarzenegger). Bush is simply following historical suit. Who knows? With Miers, she may pull a Warren and shift the court to the left.

No matter though. I can sympathize with Bush's determination (what else do you do when you're facing a lost cause last term presidency). However, getting Miers to the bench will cost the Republicans greatly. Whatever Miers can bring to the bench, it simply isn't worth it.

Mike Parker said...

The Smoking Gun has photocopies of the notes between Miers and W. They're practically SWAK.

Indy: I'm not saying that she's unqualified because she has a close relationship with W (please see my previous messages), I'm saying that, in the absence of any qualifications that would otherwise recommend her to the court, the only logical reason why W would nominate her is because they're buddies. That's the very definition of cronyism.

I'm not interested in diverting this conversation into one about Iraq, but since the whole thing has been made up from the start, why should we complain about one little videoconference being staged?

ltbugaf said...

The original post makes a reckless reference to the Constitution hanging by a thread, just as Joseph Smith prophesied it would. Two points: (1) The appointment to the Supreme Court of a person less qualified than some but more qualified than most does not constitute a major threat to the Constitution. If she were secretly plotting to ignore or deliberately misinterpret the Constitution, that might be a different matter, but no responsible person alleges such a thing. (2) I challenge you to find a reputable record of Joseph Smith's "prophecy." Everyone seems to know the RUMOR that Joseph said this, but no one can point out where. As a rumor, it ought to be treated as such, with a skeptical eye.