Alexander Hamilton on Harriet Miers

Well, actually it’s the WSJ opinion page invoking the philosophy of Hamilton, but the analysis is sound. Arguing against the nomination of Miers, Randy Barnett quotes a passage from Federalist No. 76:

"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."

That’s a pretty clear argument against cronyism and a pretty strong statement about the Senate’s role in checking it. Granted, this passage comes from the Federalist Papers and not the Constitution, but the “original intent” diehards on the right love buttressing their constitutional philosophy with secondary documents like this one. So this poses an interesting conflict for Senate Republicans who want to remain true to the “vision” of the founders while holding the party line. Of course, there is no conflict if the Senate deems Miers eminently “qualified” for the position, but so far that looks like a stretch. Here’s a quick sketch of Miers’ unimpressive career.

Barnett claims that cronyism is problematic for two specific reasons, namely, “because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch.” I agree, and would even go so far as to say that these two negative elements of cronyism potentially exacerbate one another.

A refined constitutional philosophy developed over years of wrestling with constitutional law and precedent is a Justice’s best defense against the caprice of the legislative and executive branch. It provides a solid foundation for decision making that lends the Supreme Court the stability it needs to protect the rule of law when hotheaded ideologues fire upon it. Say what you want about Roberts’ opinions (I’ve said plenty) but I don’t think he’s the type to be swayed by pressures from the other two branches of government. Based on what I’ve read, I don’t have nearly as much faith in Miers.

So if we assume that Miers does not have the cloak of independence offered by a strong constitutional philosophy (The fact that she has never written about constitutional law and never practiced constitutional law makes this a safe assumption.) then her close connection to the Bush Administration is all the more dangerous. Can we expect a years-long friend and confidant of the president to suddenly achieve objectivity on the high court, with nothing more than a newfound, overwhelming power to guide her? It's an awfully big chance to take.

As the philosopher Keith Buckley said, “The warrior with the deadliest weapon is the one without an instruction manual for his gun.” I think 1/9 of the decision making power on the Supreme Court is some pretty heavy artillery to hand over to someone who may or may not know how to use it. That’s something Republicans and Democrats should be worried about.

--Matthew McCoy