Fat Steve's Blatherings

Tuesday, October 04, 2005

Missing the Point, Badly

Summary:

        Randy Barnett is ticked that the President didn't nominate one of his crony's, with his sort of experience to be a Supreme.  Too bad, Randy.

At Length:

        In a Wall Street Journal editorial, Randy Barnett writes:
        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.)

        Let me reprint that, with my own emphasis:
        "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.

        To criticize Miers from this perspective, one must show that Miers is unfit to be on the Court.  So, how does Barnett do at this task?

        Barnett contends:
        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.

        Well, that's a nicely written passage, but it's known in the logic game as "an unsupported assertion."  Two assertions in fact: that such a "judicial philosophy" is necessary, and that Miers doesn't have one.  'What may be freely asserted may be freely denied,' and without argument to back his opinion up, there's no reason to agree with Barnett.

        Barnett goes on:
        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?

        The idea that Miers lacks experience is laughable.  She's been a high-powered lawyer for decades, as I mentioned in my previous post.  She lacks the academic experience that Barnett wants her to have, but has extensive experience they lack.  Or were all eight of the Supremes trial lawyers at the case level, Presidents of major bar associations, and managers of law firms that have four hundred attorneys?

        Yes, it's certainly true, if Bush didn't know her well, personally, he'd probably not have appointed Miers.  But W. does know her, and has had a chance to find out if she's qualified to be a Supreme.

        What Barnett's article boils down to is 'Bush should have picked someone from the circles in which I move, that of law professor or appellate judge.'  But we didn't elect Barnett President.

THE HOUSE OF SAUD MUST BE DESTROYED — AND WILL BE!

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