"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?