SCOTUS: Hamilton on cronyism and the nomination process
So basically, I'm just cribbing links from SCOTUSblog. But they're good, so I want to post on them too.
In the Wall Street Journal's (free) blog OpinionJournal, Randy E. Barnett contraposes Bush's appointments with The Federalist No. 76.
It's pretty stunning. Think of Julie Myers at CIS, Allbaugh and Brownie at FEMA, Snow at Treasury, and now Miers for Associate Justice, and so on. And then read Hamilton's vision of the appointment process, and weep: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. . . . The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. 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.
I should mention that my main man Senator Bobbie Byrd LOVES this Federalist Paper. It's the one he quoted and waved around during the nominations fillibuster. Advise and consent is not a merely ceremonial exercise, he said then. Nor should it be for any appointment.
Mind you, I don't think Miers is unqualified in the least. She would bring a lot of important perspective to the court, as a highly accomplished trial lawyer, the head of a legal professional association, a Southerner (she would be the only on the current Court), a woman, and a former legislator (like O'Connor). But I don't like the cronyism. Surely there are a lot of other candidates who fit the bill and aren't Bush cronies.
Barnett notes another dispositive requirement for Justices: they must at least have developed a judicial philosophy by which Senators can discern their approach to their responsibilities. This doesn't mean a litmus test on hot-button issues, but it does mean issues like separation of powers, federalism, precedent, and the Judiciary's role in protecting express and implied Constitutional rights. And Miers does not appear to have had any opportunity to develop her position on these issues. For that reason, if for no other, Bush would be well advised to look elsewhere for a nominee.
As it is, though, this is just one more bit of evidence that Bush operates completely within a small, isolated social bubble, and has no interest in straying beyond its borders.