In today’s Wall Street Journal, Randy Barnett points out that Bush’s appointment of a close friend and advisor to the Supreme Court is precisely the kind of thing the Founders wanted to prevent.
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.”
As Barnett points, out one of the things the Founders wanted to prevent was a President appointing his (or her) close friends and advisors to the third branch of government. This is important not because a crony is necessarily unqualified, but because it helps promote the independence of the judiciary from the executive branch just as life tenure (which I admittedly have a problem with) promotes judicial independence from the legislative branch. Like it or not, Bush has appointed a crony.
The question now is whether the Senate will live up to its intended role in dealing with this nomination the same way it did when Lyndon Johnson tried to elevate his buddy Abe Fortas to Chief Justice of the United States. The performance of both Republicans and Democrats during the Roberts nomination suggests not.
Barnett’s final paragraph is worth repeating:
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.”
Read the whole thing.
Linked with today’s Beltway Traffic Jam and Mudville Gazette’s Open Post
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