MayerBlog: The Web Log of
David N. Mayer

Life and Death Decisions (Part I) 

President Bush’s nomination of his friend, White House counsel Harriet Miers, as Justice O’Connor’s successor on the Supreme Court – still a hot topic of discussion, especially among conservative and libertarian writers – promises to be a defining moment of Bush’s presidency.  By picking a personal crony rather than one of the many unquestionably well-qualified conservatives (male and female) whom he could (and should) have chosen, Mr. Bush has created a scenario that will test the U.S. Senate and his own presidency, determining (among other critical matters) whether his status as a “lame duck” president now begins.  In my opinion, it does:  by “ducking” his responsibility to nominate qualified persons for the federal judiciary, Bush acted truly in a “lame” fashion. 

In the coming term, the Supreme Court will decide many critically important cases – among them, another key federalism question (this time involving Oregon’s physician-assisted suicide law).  It’s vitally important that the Court have all nine of its seats filled by justices who are competent to do the job.  Justice O’Connor had the good grace to make her resignation contingent on the Senate’s confirmation of a successor; the Senators ought to do their job – to exercise their veto over Bush’s nomination of Miers, and thereby responsibly exercise their “advise and consent” powers – so that, unless and until Mr. Bush nominates a qualified person for her seat, Justice O’Connor will continue to serve.  Her vote may indeed be critical in the Oregon case, which raises questions of “life or death” not only for terminally-ill patients but also for the Constitution itself and its fundamental design of a national government of limited, enumerated powers.  (As O’Connor wrote in her dissenting opinion in Gonzalez v. Raich, the Court’s medical marijuana decision in June 2005, under the “breathtaking” notion of Congress’s power under the Commerce Clause that the majority adopted in that case – virtually “any activity involving the production, distribution, and consumption of commodities” – the Court “threatens to sweep all of productive human activity into federal regulatory reach.”  The same issue – whether Congress has any meaningful limits to the scope of its powers under the Commerce Clause – is involved in the Oregon case.)  

The Debate over Confirming Harriet Miers 

The Senate’s power of “advise and consent” is an example of one of the “checks and balances” that the Constitution’s framers put into the document – exceptions to the general rule of separation of powers – that, therefore, ought to be construed narrowly.  As I argued here in a previous essay (see “Confirmation Abuse,” Sept. 5), the Senate abuses that power if it tries to veto a nominee who’s clearly qualified for office – as John Roberts was, for the office of Chief Justice.  In confirming Roberts, members of the Senate (at least those who voted “Yes”) acted responsibly, following the Constitution rather than partisan politics. 

The Miers nomination presents almost exactly the opposite set of circumstances.  Instead of testing Democrats’ fidelity to the Constitution, it will test Republicans’:  will they rise above partisan politics and act objectively and responsibly, according to their duty under the Constitution?   The Constitution vests the “advise and consent” power in the Senate to prevent exactly the kind of cronyism that the Miers nomination exemplifies.  In other words, it’s a textbook case for the Senators, justifiably and responsibly, to vote “No.” 

As I noted in my “Confirmation Abuse” essay, the framers of the Constitution gave the Senate a role in the appointments power, primarily, to minimize the danger that a president, swayed perhaps by nepotism or political opportunism, might abuse the power by appointing unqualified persons.  As Joseph Story noted in his classic, early-19^th-century treatise, Commentaries on the Constitution: “It should never be forgotten, that in a republican government offices are established, and are to be filled, not to gratify private interests and private attachments; not as a means of corrupt influence, or individual profit; not for cringing favourites, or court sycophants . . . .”   

Alexander Hamilton was even more explicit in Federalist No. 76, when he described the Senate’s “advise and consent” power as “an excellent check upon a spirit of favoritism in the President,” a power “to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”  Giving the Senate the power to check presidential appointments would also encourage a president to act more responsibly, Hamilton suggested:  “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” (emphasis added). 

Apparently Hamilton did not anticipate someone as irresponsible or shameless as George W. Bush ever would occupy the presidency.  As Randy Barnett observed in a recent Wall Street Journal op-ed, “Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel.  She also was George W. Bush’s personal lawyer.”  To this, one could add that she also has been a long-time personal friend of Bush’s.  “Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton’s description more closely,” Barnett notes.  “As the quote from Hamilton suggests, the core purpose of Senate confirmation of presidential nominees is to screen out the appointment of `cronies,’ which Merriam-Webster defines as `a close friend especially of long standing’” (“Cronyism,” Oct. 4). 

Why did the framers of the Constitution so fear cronyism in presidential appointments?  It’s not just because cronyism is a form of political corruption, incompatible for republican government, as Story had observed.  Not is it just because cronies are apt to be unfit or unqualified for the offices to which they’re nominated.  It’s also because cronyism is particular dangerous with regard to appointments to the judiciary, a separate branch of government that ought to be independent of the executive.  As Barnett adds, “Cronyism [with respect to federal judicial appointments] is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch.  A longtime friend of the president who has served as his close personal and political adviser and confidante, no matter how fine a lawyer, can hardly be expected to be sufficiently independent – especially during the remaining term of her former boss.” 

It is true, as some defenders of the nomination have noted, that many justices without prior judicial experience have served on the Court, throughout American history – most recently, the late Chief Justice William Rehnquist.  It’s also true that some of these non-judges also have been presidential cronies:  for example, Abe Fortas, who was LBJ’s crony.  However, unlike Ms. Miers (who has been called by some critics “Abe Fortas in a skirt”), Fortas at least had argued cases before the Supreme Court.  Defenders of the Miers nomination ought to be at least a bit uncomfortable giving the “other presidents did it” argument – the same argument that Clinton apologists tried to use during the impeachment debate.  Moreover, virtually every single example from history that can be cited of either a non-judge or a political crony being nominated (and confirmed) for the Supreme Court involves someone who was otherwise qualified, either through experience as a lawyer or academic, to consider questions of constitutional law.  What is striking about the Miers nomination is not only her cronyism, by itself, but her complete lack of any significant experience other than as a lawyer for George W. Bush. 

Miers’ role as White House counsel complicates and exacerbates the problem of cronyism.  The Bush administration has maintained that the United States is at war, albeit against a nontraditional enemy (the “war on terrorism” is more a war against an ideology than a war against a particular nation or even a well-defined group of Islamic extremists); and among the great issues the Court has addressed, and will continue to address, involve the Article II powers of the president to wage war.  As conservative commentator Charles Krauthammer recently observed, “For four years, Miers has been immersed in war-and-peace decisions and therefore will have a deep familiarity with the tough constitutional issues regarding detention, prisoner treatment, and war powers.”  But, Krauthammer cautions, Miers’ role in setting these policies will be “a liability”:  “For years – crucial years in the war on terror – she will have to recuse herself from judging the constitutionality of these decisions because she will have been a party to having made them in the first place,” and thus “The Supreme Court will be left with an absent chair on precisely the laws-of-war issues on which she is supposed to bring so much.”  He’s giving Miers the benefit of the doubt, assuming that rather decide a case in which her experience in the Bush White House will bias her in favor of the administration’s  position, she will recuse herself.  Either way, however, the effectiveness of the Supreme Court as an independent branch of government – and particularly as a check upon abuse of power by the executive branch – will be compromised. 

Even if we set aside the troubling fact of the obvious cronyism of this nomination, is Harriet Miers otherwise qualified to sit on the Supreme Court?   The answer, clearly and obviously, is “No.”  As law professor Jonathan Turley argued in a recent USA Today op-ed, although there’s little consensus on what constitutes a “qualification” for the nation’s highest court, Miers stands out as having “one of the slimmest resumes in history for a Supreme Court nominee”: “A graduate of Southern Methodist University Law School, Miers spent most of her career as a commercial lawyer in Texas.  She served as the chairperson of the Texas Lottery Commission and a member of the Dallas City Council.  . . . [H]er most notable resume item is her friendship with President Bush – serving as his personal lawyer, staff secretary, and later White House counsel” (“What qualifies one for the Supreme Court?”  Oct. 6). 

Many thoughtful conservative commentators have opposed Miers’ nomination – urging either she or the president to withdraw it – for valid, persuasive reasons.  David Frum has pointed out that Mr. Bush has wasted a golden opportunity to appoint a genuine conservative intellectual to the Court.  “This is the moment for which the conservative legal movement has been waiting for two decades – two decades in which a generation of conservative legal intellects of the highest ability have moved to the most distinguished heights in the legal profession,” Frum has noted.  Instead, Bush nominated a crony for whom “there is no reason at all to believe either that she is a legal conservative or – and more importantly – that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left” (National Review online diary, Oct. 3).  George Will has written “there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court’s tasks.”  He has added that “[t]he president’s `argument’ for her amounts to: Trust me,” and that, for the reasons discussed below, “[t]here is no reason” to trust Bush’s judgment on this matter (“Miers Is the Wrong Pick,” Oct. 4).  

And, like the proverbial boy who “outed” the emperor with no clothes, Charles Krauthammer has observed, “If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her.”  He adds:

“There are 1,084,504 lawyers in the U.S.  What distinguishes Harriet Miers from any of them other than her connection with the president?  To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell, and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.”

As Krauthammer explains, the nomination reflects badly more on Mr. Bush than it does on Ms. Miers.  Bush, by “nominating a constitutional tabula rasa to sit on what is America’s constitutional court,” has acted with “regal authority,” “with the arbitrariness of a king giving his favorite general a particularly plush dukedom. . . . To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution, and to [conservatives’] vision of the institution. . . .  For a man whose presidency is marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness” (“Retreat,” Oct. 7).

These reasons for objecting to the Miers nomination all recognize the special role played by the U.S. Supreme Court in the American legal system.  The Supreme Court is not an ordinary court:  it is, for all practical purposes, “the constitutional court” of the United States, as Krauthammer noted.  For better or worse, the Court is the final arbiter of questions concerning the U.S. Constitution; its interpretation of the document is widely accepted as the “supreme law of the land,” unless the Court itself changes its decisions or the people of the U.S. override the Court by amending the Constitution.  Constitutional law is a specialized area of the law – an area in which Ms. Miers, notwithstanding her superb credentials as a lawyer, has no expertise.  (She might be a fine candidate for a federal district court, or even perhaps one of the federal appeals courts, but not for the uniquely important U.S. Supreme Court.)  She has not argued any cases before the Supreme Court (as Chief Justice Roberts did – and even as LBJ’s crony, Abe Fortas, did); she has not written about constitutional questions, nor has she even spoken about them.   

The closest she has come, apparently, to litigating a constitutional issue was when she headed the legal team representing the Bush-Cheney presidential ticket in a 2000 case before a federal district court in Texas, Jones v. Bush, involving a challenge to the Texas electors’ vote for Bush-Cheney.  The plaintiffs had argued that Cheney, like Bush, was really a Texan, not a resident of Wyoming, and that hence the Twelfth Amendment forbade the Texas electors from casting their votes for both candidates.  Ms. Miers’ brief successfully argued that the court should consider the facts of Cheney’s residency as of Dec. 18, 2000, the date the Electoral College was scheduled to meet, by which time Cheney would have fully severed his ties to Texas.  A partner at Ms. Miers’ former law firm, who worked with her on the case, has said, “When I hear that Ms. Miers doesn’t have any constitutional-law experience, that one really comes to mind” (“Obscure Texas Case Offers Peek into Role of Court Nominee,” Wall Street Journal, Oct. 7).  True, Miers “might be the only [Supreme Court justice] who’s argued a 12^th Amendment case” – but if her work as a lawyer for Bush on this obscure case is the only constitutional-law case her supporters can cite, it seems to prove her lack of expertise. 

In response to these valid objections, Bush apologists have unfairly castigated Ms. Miers’ critics as “elitists.”  For example, Senator John Cornyn (R.-Tex.), in a recent op-ed in the Wall Street Journal, has argued that it’s “a plus” that Ms. Miers “was not educated at East Coast universities and has not spent her entire career inside the Beltway.”  But Cornyn is setting up a straw man:  Miers’ conservative critics have not criticized her for having a law degree from SMU rather than an Ivy-League school; nor have they objected to her lack of experience as a federal appeals court judge.  They’re objecting to her lack of any kind of judicial experience – trial or appellate, state or federal – in addition to her lack of expertise in constitutional law, and in addition to her obvious position as a crony of Mr. Bush.  Indeed, the major criticism of Ms. Miers is that she’s too much of an “elitist” for the Court – that she’s a member, not of the usual “elite” of academics and appellate-court judges who traditionally have comprised the membership of the Supreme Court, but of a different (and even more exclusive) elite group, composed of close friends of Mr. Bush. 

Mr. Bush’s argument for Ms. Miers’ confirmation is, essentially, simply, “Trust me.”  But it is on questions of constitutional law, especially, that Bush’s record as president has demonstrated that he cannot be trusted:  he’s either ignorant of, or oblivious to, the Constitution (and to his own oath, as president, to support and defend it).  For example, he has failed to use his veto power for precisely the purpose the Founders intended for the presidential veto – to protect the American people from unconstitutional laws passed by Congress, such as the McCain-Feingold campaign finance regulatory scheme that clearly abridges First Amendment freedom of speech (notwithstanding the Supreme Court’s erroneous decision to the contrary).   Mr. Bush also supports provisions of the USA Patriot Act that clearly abridge other basic constitutional rights of Americans; and he has expanded the federal government’s role in health care and in education (with his Medicare prescription-drug program and his “No Child Left Behind” law and its mandates on public schools), despite the fact that these are not among the enumerated powers of the national government and therefore, under the Tenth Amendment, fall among the powers reserved to the states or to the people.    

Like many conservatives, Mr. Bush also takes a simplistic view of the Constitution when he identifies his standard for judicial appointments as judges who “do not legislate from the bench” or when he identifies his model jurist as a “strict constructionist” in the mold of  “a Justice [Antonin] Scalia or Justice [Clarence] Thomas.”  Whether or not a judge “legislates from the bench” depends on whether the judge is being improperly “activist,” in following his or her own subjective views rather than following objectively the principles of the law.  However, as I have noted in a previous entry here, both conservatives and liberals are equally guilty of unfairly castigating as “activist” any judicial decision with which they disagree; and many conservatives, in particular, err in confusing judicial protection of the right to liberty (under the due process clauses of the Fifth and Fourteenth Amendments) with improper “activism,” when instead it ought to be seen as a proper exercise of the Court’s judicial review power.  (See my essay, “Judicial Activism, Real and Imagined,” April 4.) 

Moreover, anyone who really understands constitutional interpretation knows that it’s wrong to identify Justice Scalia with Justice Thomas, for the two justices are really quite different in their jurisprudence.  “Conservative constitutionalism” is not a monolithic approach to constitutional interpretation; rather, it’s a broad coalition of various forms of conservatism, of which Justices Scalia and Thomas represent very different types.  Justice Scalia tends to be a strict “textualist,” who follows the literal words of specific provisions of the Constitution without regard to their context; while Justice Thomas comes closest (closer than any other justice currently on the Court, or any justice who has been on the Court in the past 70 years) to taking a “contextualist” approach, reading each provision of the Constitution in light of the document as a whole.  Moreover, Justice Scalia tends to be a majoritarian, giving great deference to legislative discretion in the making of public policy; while Justice Thomas, on some issues involving individual rights, is more of a libertarian counter-majoritarian.   Justices Scalia and Thomas do not vote alike; in many important cases, they part company – for example, most recently, in Raich v. Gonzales, the Court’s 2005 decision concerning medical marijuana and the scope of Congress’s power under the Commerce Clause (where Scalia concurred with the majority, under a broad view of Congressional powers, while Thomas joined Chief Justice Rehnquist and Justice O’Connor in dissent).  

The myth that Scalia and Thomas are similar jurists (when in fact they often vote on different sides of constitutional questions or, even when in agreement, they follow significantly different rationales) is yet another sign of a simplistic view of modern constitutional law questions.  When left-liberals identify Scalia and Thomas, they reveal either an ignorance or an abhorrence of constitutional conservatism.  When so-called “conservatives” make this error, they reveal a failure to fully understand the modern debate over constitutional interpretation – and perhaps an ignorance of constitutional conservatism, as well.  (For more on the debate – and how liberals and conservatives both get it wrong – see my essays written for The New Individualist, the journal published by The Objectivist Center:  “Interpreting the Constitution Contextually,” October 2003, and “The Next Chief Justice,” June 2005.) 

Why should senators trust Mr. Bush’s judgment that Ms. Miers will have the “right” answers to constitutional questions, when Bush doesn’t even understand the questions?  As George Will succinctly put it, Mr. Bush “has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution.   Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections.” 

            Having noted all this, however, I have no confidence that the members of the Senate will do right, following their oath to defend and support the Constitution, and refuse to confirm this unqualified person to the Supreme Court.  As I will discuss in Part II of this essay (in my next post), the Senate is not the institution it used to be – or was designed to be, by the Constitution’s framers.  The Senate’s mishandling of John Roberts’ nomination as chief justice – the ludicrous hearings held by the Senate Judiciary Committee – shows how pathetically irresponsible the current members of the Senate, of both political parties, are.  Randy Barnett nicely summed it up in his “Cronyism” op-ed: 

            “Judiciary Committee Democrats spent half their time making speeches rather than questioning.  What questions they did ask were not carefully designed to ferret out the nominee’s judicial philosophy, favoring instead to inquire about his feelings, or whether he would stand up for the `little guy,’ or bemoaning his refusal to telegraph how he would rule on particular cases likely to come before the court.

            “For their part, Senate Republicans were content to parrot the empty line that a judge `should follow the law and not legislate from the bench.’  Sit tight and vote seemed to be their approach.  By refusing to demand a nominee with a judicial philosophy of adherence to the text of the Constitution – the whole text, including the parts that limit federal and state powers – Republicans did nothing to induce the White House to send up a nominee who was at least as committed to limits on federal power as Chief Justice William Rehnquist and Justice Sandra Day O’Connor had been.”

I also agree with Professor Barnett’s eloquent summary of why Harriet Miers’ lack of a firm constitutional philosophy – even if she’s a political “conservative,” as Mr. Bush claims – disqualifies her from today’s Supreme Court, a place where justices with a coherent constitutionalism are especially needed: 

            “Times like these demand a justice with a firm grasp on constitutional text, history and principles.  Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution’s limits on government power.  Does anything in her record suggest that Harriet Miers will be that sort of justice?”

As Barnett adds, “We do not need to wait for Senate hearing to answer this question.  What hearings will tell us, however, is whether the Senate, too, will succumb, in Hamilton’s words, to `a spirit of favoritism.’” 

 | Link to this Entry | Posted Monday, October 10, 2005 | Copyright © David N. Mayer