And the next Supreme Court Nominee is...

[Rebar]

I too think that Janice Rogers Brown would have been an infinitely better choice.

Besides that her jurisprudence is 100% the way it should be, to watch the democrats attack a black woman would have been entertaining in showing the extent of their hypocracy.

 

[Rob P.]

I love it. All the comments since my last post comparing what I wrote with the current makeup of the court are so funny it's pitiful.

FWIW, I believe that the next (or any) nominee should have a "towering intellect". Comparing those words to Reinquist and Thomas and then saying they are "average joes' is missing the point. The point is that the current court is divided BECAUSE it's (was) made up of members who didn't and couldn't think beyond their next meal. So, why would anyone WANT to continue in that vein? We need people on our high court who can think. Not people who know how to toady-up or who get confused the moment someone disagrees with them. We need someone BETTER than that. Not another just like that.

In the same sort of abstract way, appointing and confirming an "unknown" is dangerous. Case in point is the example of David Souter. Yet, saying my stmts against doing such are "unconvincing" sort of says that appointing another member who has no track record and gets it wrong most of the time is the way it should be.

Again, that misses the point by so much I cannot help but be concerned about those who think it's OK. We need and should expect MORE than status quo or follow the money. SCOTUS is NOT the place for a concensus-finder or deal-maker. Look at Reinquist and the confusion he created by this adjudicating style.

We don't need another justice who will waffle on things important to the people and nation. We don't need another justice who will make "exceptions" to our enumerated rights. We don't need a court that will slowly strip the BOR to the bone piece by piece while getting fat from special interest perks (yeah, yeah, I know there aren't any "special interests" involved in SCOTUS decisions. Yah, SURE there ain't.). We don't need another justtice who will go along with the "in-crowd".

At this time, an unknown & heretofore inexperienced in high court issues candidate for Justice to the Supreme Court is too much to risk. We need, and we deserve better than Harriet Miers.

 

[Rich Lucibella]

Anti-
For my money, you've nailed the issues once again. Perhaps the single most important aspect of the 2000 and 2004 elections was the issue of who would pick at least one Supreme Court Justice. Bush has picked two. Roberts may have been an acceptable gamble; Miers is not, given that the only thing that sets her apart from thousands of other attorneys is that the President "trusts her judgment".

The same President that not only refused to veto, but backed PATRIOT and sponsored PATRIOT II. The same President that created Homeland Security. The same President that embraces and sponsors the idea that the President should be able to take over State Government with US Military in the event of a Flu Epidemic.

This is the type of "judgment" that Miers takes to SCOTUS? Phooey.

Bush has blown enormous opportunities to rally this nation around the concepts of private enterprise, personal responsibility and Constitutional Guarantees: with Homeland, PATRIOT and TSA as just a few examples. In each case, he's opted for and welcomed bigger Federal Government. Neocon is exactly the right word.
Rich

 

[Eghad]

I think Bush is going to get his way......

He has made conservatives and liberals mad with his appointment....lol

How can you miss with that?

Mrs. Miers isnt going to be a pushover... A woman in Texas doesnt get where she is by not having some pit bull blood in her...lol.

I am ROFL listening to the Talk radio this morning....

Conservatives calling in calling Bush a traitor.... Liberals damning him for his choice.

Ried is in and Schumer was saying she has potential.

Miers FTW

 

[publius42]

Roberts may have been an acceptable gamble;

Or maybe not. Unlike Scalia and Thomas, he agreed with the majority in the Kelo case.

I think we've just been handed a better-looking Souter and Souter in a dress. Nice going.

 

[Al Norris]

A couple of articles that would explain better than I, the consequences of this nomination. I'll be posting these off and on throughout the week.

First up.

Cronyism
Alexander Hamilton wouldn't approve of Justice Harriet Miers.

BY RANDY E. BARNETT
Tuesday, October 4, 2005 12:01 a.m. EDT

During the Clinton impeachment imbroglio, Alexander Hamilton's definition of "impeachable offense" from Federalist No. 65 was plastered from one end of the media to the other. With the nomination of Harriet Miers to the Supreme Court, get ready for another passage from Hamilton to get similar play--this one 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." (The italics are mine.)

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. 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 any more closely. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?

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 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.

By characterizing this appointment as cronyism, I mean to cast no aspersions on Ms. Miers. I imagine she is an intelligent and able lawyer. To hold down the spot of White House counsel she must be that and more. She must also be personally loyal to the president and an effective bureaucratic infighter, two attributes that are not on the top of the list of qualifications for the Supreme Court.

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers's professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.

Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.

Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.

Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser? Of course, Hamilton also thought that the existence of Senate confirmation would deter the nomination of cronies:

"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."

While the Senate once successfully resisted President Lyndon Johnson's attempt to nominate his own highly able crony, Abe Fortas, to be chief justice, perhaps the performance of senators during the Roberts nomination reduced the deterrent effect of "advise and consent." 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.

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? We do not need to wait for Senate hearings 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."

Mr. Barnett is the Austin B. Fletcher Professor of Law at Boston University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2004).

If you have the spare change, get that book. It explains in detail what's wrong with Federalism today, and how to fix it.

 

[Rich Lucibella]

It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.

Bingo.
We know that this President has shown precious little concern for States Rights, for individual Privacy Rights, for individual Due Process Rights. When he presents a stealth candidate to SCOTUS and states, "She reflects my values", I fear an infiltration of those very values into the last Branch of hope.
Rich

 

[Al Norris]

Bringing this back to the top, because of the (current) controversy over Bush's comments on Mier's religious affiliation.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Article VI cl. 3, U.S. Constitution.

President Bush has come under fire for this, his choice of Harriet Miers for nomination to the the Supreme Court. Most of the criticism has been her apparent lack of qualification to sit as a Justice.

This President just recently has taken a gamble, to keep part of his base, by suggesting that some of the criteria by which she was selected, was her religion.

To many, this approximates a violation of the Religious Test clause of the Constitution. Afterall, the President may select for appointment, anyone he wants. He may use whatever criteria he wants. But if he publically states that said nominating criteria was a religious factor, has he violated the letter of the law? Article II sec. 2 cl. 2 states, "...he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court..." There is no statement of how he may select for this public office.

Has the Court addressed this issue?

"[T]he Religion Clauses -- the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, Art. VI, cl. 3, and the Equal Protection Clause as applied to religion -- all speak with one voice on this point: Absent the most unusual circumstances, one's religion ought not affect one's legal rights or duties or benefits. As I have previously noted, the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community." Bd. of Educ. v. Grumet, 512 U.S. 687, 715 (O'Connor, J., concurring in part and concurring in the judgment) (citation and internal quotation marks omitted).

"Direct government action endorsing religion or a particular religious practice is invalid under this approach because it sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch v. Donnelly, 465 U.S. 668, 687-689 (1984) (O'Connor, J., concurring). See also Abington School District v. Schempp, 374 U.S. 203 (1963). "[the] objective is to prevent, as far as possible, the intrusion of either [Church or State] into the precincts of the other." Larkin v. Grendel's Den, 459 U.S. 116 (1982).

It can therefore be viewed as Bush having used Miers religious affiliation as a criteria by which she was selected, and therefore in violation of the Constitution.

It can also be argued that Bush merely mentioned her religion in answer to the question, who she is. (It being inescapable that a persons religion is indeed part of who they are.) Such a mere admittance is therefore not violative and is nonjusticiable.

In this case, I think Bush is making a shrewd political ploy designed to placate the religious right and (some) other conservatives. It may ultimately backfire, as I also think Bush did in fact use such a criteria in the selection process, which is violative of the process. But, how do we know? I certainly cannot read minds, and I suspect neither can anyone else.

 

[Rich Lucibella]

Anti-
This has been rankling me for two days. I respect people with religious convictions. I have little respect for proselytizers or those who wear their religion on their sleeve. Up until yesterday, I was willing to put up with GWB's religious convictions and I'll even admit that, in the beginning, I felt these were a plus vs the Kennedy type secularists.

But he's gone WAY too far with his statements about Miers' religious positions. What an absurd defense for a SCOTUS pick. For my own part I don't want an Evangelical Anything on the highest Court. I want a simple, learned Constitutionalist. I suspect most people feel the same.
Rich

 

[publius42]

I missed Bush's comments. (Another advantage of spending a weekend in Bimini - you get to miss Bush's comments. )

What did he say?

Seems to me a blurry line here.

As I have previously noted, the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community." Bd. of Educ. v. Grumet, 512 U.S. 687, 715 (O'Connor, J., concurring in part and concurring in the judgment)

The government. When it comes to a SCOTUS appointment, the President is the government.

But the President is supposed to exercise his judgement in making appointments. His judgement. That's personal. Like religion. If his personal judgement is going to require him to pick someone who shares his faith, should we require him to shut up about that fact?

 

[Al Norris]

But he's gone WAY too far with his statements about Miers' religious positions. What an absurd defense for a SCOTUS pick. For my own part I don't want an Evangelical Anything on the highest Court. I want a simple, learned Constitutionalist. I suspect most people feel the same.

But the President is supposed to exercise his judgment in making appointments. His judgment. That's personal. Like religion. If his personal judgment is going to require him to pick someone who shares his faith, should we require him to shut up about that fact?

Yes it is personal. And being personal, he should keep his mouth shut. As Rich says above, If his only defense for this pick is her religion, then the pick is absurd.

I'll go one further, it passes a religious test for the nominee and is flatly forbidden by the Constitution. Unfortunately for Bush, he is not just a private citizen. He is the President of the United States. When selecting a nominee for appointment to public office, he cannot use as a defense for his action, the persons religion. Whether for or against the person. Sure, we may think we know this was done. And in the initial statements, Bush intoned that people wanted to know who Miers was and her religion is certainly part of that equation. But in later interviews and statements, Bush has pushed this as a defense of her expertise. Now we crossed the line from the personal to the governmental. In doing this, a religious test has been established by the executive.

Bush may not have wanted this to be so, in which case he should have kept his mouth closed. Let people speculate all they want. But by the constant voicing of this position, Bush has all but placed himself and his nominee outside of the Constitution as it regards political appointments.

It is fast becoming that the only qualification for appointment is in fact her religion. So I have to ask the question: Do we really want such considerations to be a valid vehicle for qualification?

I don't know if anyone remembers, but when Roberts was making his statement before the Senate, he acknowledged that he was Catholic. He went on to say that his religious preferences would not play into how he would view a case to be tried before him. He was very aware of how the majority of people view Catholics and their obedience to Rome. What he did was to immediately remove the religious test from the docket. Very good move on his part.

Now contrast this with Miers. After all the hoopla about her religious beliefs, has she made such an affirmative defense, or is she silent on the matter? Yes, it is Bush and the Media that are making such a big deal over this, but her own silence is deafening!

For me, using one's religion to further your political and societal goals is just plain wrong. If I cannot stand on my own, politically, the crutch of religion will not hold me up. It ridicules both me and my religion.

Full Disclosure: I am a Deacon in the Roman Catholic Church and I have taught my religion to adults and other inquirers (RCIA) for the last ten years.

 

[Rich Lucibella]

If I cannot stand on my own, politically, the crutch of religion will not hold me up. It ridicules both me and my religion.

This month's TFL Quotable Quote.
Rich

 

[Rob P.]

Here's the flip side of the deal that indicates something about Meirs' character.

IF the prez can't use a religious test as a selection criteria AND if the purpose of the advise & consent clause is to weed out the crony's; and IF the nominee is supposed to be smart enough to KNOW this stuff and be above petty politics or using such or participating in wrongful actions for personal advancement, then...

WHY

did the White House Counsel, someone who should darn well be versed in Constitutional law and theory, ACCEPT the offer of the position?

Could it be that her eyes were blinded by the glamour?

Could it be that she isn't so stalwart as claimed?

Could it be that she would put herself above right & wrong?

Could it be?

Certainly.

Old saying SWMBO uses: "Consider the source". All of you who voted for G-Dub are now reaping what you sowed. You thought he was a savior and now we begin to see his true reflection as a Constitutional pariah.

 

[Rich Lucibella]

All of you who voted for G-Dub are now reaping what you sowed. You thought he was a savior and now we begin to see his true reflection as a Constitutional pariah.

Rob-
Get over yourself, please. None of us stated we wish we'd voted for the only viable alternative.

Turn this into an "I told you all along" thread, and I will personally excise your comments to a new thread and then close it for lack of interest. OK?
Rich

 

[Gary H]

Bush's Strategy???????

Offend conservatives and then make sure that the liberals know that the new nominee is a member of the hated (by the left) evangelical wing of the Christian faith. Either Bush has put in play a brilliant strategy, or he has made a couple of major errors. It is hard to imagine that this is a stroke of brilliance, but we will see.

 

[Waitone]

The idea of Miers being a constitutionalist didn't flush.

"Trust me" didn't flush either.

Now we're into the religion excuse. I'll predict it won't flush either.

What's next? "Because I said so!" Not flushable.

Bush may have made a strategic decision which may take three or four steps to play out. In the meantime the "Great Fed Up" pulled the strap off the wall, grabbed Dubya by the ear and hauled him out to the woodshed for an attitude adjustment. I think the odds are even that Meirs will not be confirmed. Congressional republicans can not run for reelection based on Bush's policies. A line has to be drawn somewhere and I suspect Meirs is the line.

 

[publius42]

But in later interviews and statements, Bush has pushed this as a defense of her expertise. Now we crossed the line from the personal to the governmental.

OK, maybe I'm going to have to start paying attention to the President again. <yawn> I was enjoying the break.

So.... what did he say? Not that I doubt Antipitas' characterization of his remarks, just wondering if anyone has a link to clips or transcripts.

It seems the President has established a religious test for this office, and no, he's not supposed to do that. Or, at least, he is not supposed to talk about it if he does it.

 

[Al Norris]

Here's a few links to get you started.

Dallas Chronicle:
Bush hails team's talk about Miers' religion

E & P:
White House Briefing: Reporters Hit Hard on Role of Religion in Miers Pick

Two from CNN:
Bush: Religion factor in Miers pick

much the same, but slightly different:
White House defends talk of Miers' religion

Seattle Times:
Religion at forefront in Miers nomination

Waco Tribune:
Nethaway: Take faith off Miers' resume

Charotte Observer:
No religious test?

 

[publius42]

Seems like the President himself didn't say much that was controversial.

"People are interested to know why I picked Harriet Miers," Bush told reporters at the White House. "They want to know Harriet Miers' background. They want to know as much as they possibly can before they form opinions."

"Part of Harriet Miers' life is her religion," Bush said during Oval Office comments with visiting Polish President Aleksander Kwasniewski. "Part of it has to do with the fact that she was a pioneer woman and a trailblazer in the law in Texas."

He also sent his minions to conservative organizations to tout her religious beliefs as a reason to support her nomination to the Court. That's what seems more objectionable to me, especially in light of the effort to squelch any talk of religion when it came to Roberts. (They did a good job of that one. I just found out that he's Catholic. That's really how it should be.)

 

[Al Norris]

And that's the part of what's wrong here. If Roberts being Catholic was squelched so well (it wasn't to those paying strict attention to detail), why is the touting of Miers religion, even as an off hand remark, being given so much attention by the administration?

If there is smoke, it's a pretty good bet that there is fire.