In today’s Washington Times, Bruce Fein goes after the critics of the critics.
The patently lame arguments of defenders of Harriet Miers’ O Henry-like surprise nomination to the U.S. Supreme Court confirm her unsuitability. She should graciously withdraw and spare the Supreme Court and herself embarrassment.
According to the owlish observation of former House Speaker Newt Gingrich, Miss Miers must be a female version of Justice Antonin Scalia because “George W. Bush selected her.” But President Bush should be distrusted over Miss Miers because no one else (including Miss Miers herself) would have made the nomination.
The president is thoroughly unschooled in constitutional law and ill-equipped to recognize gifted and longheaded minds — for example, Chief Justice John Marshall and Associate Justices Joseph Story, Oliver Wendell Holmes, Louis D. Brandeis or Robert Jackson.
Ouch. Fein is right. There is no reason that the President’s choice should be given a pass just because he is the President. The Senate was given an advise and consent role in the selection of Supreme Court Justices for a reason. If the Founders had wanted judicial nominees to be approved by a rubber stamp, they would’ve provided for it. Instead, they looked to the Senate as a deliberative body that would act as a check on the Executive Branch’s efforts to make the third branch of the government in its own image. If a nominee is unqualified, or a crony of the President, or simply not tempered to be a judge, they should be rejected.
Fein goes on to discuss Miers’ qualifications to sit on the nation’s highest court:
The nominee, moreover, has never championed an “original meaning” theory of constitutional interpretation that confines judicial discretion and places the justices under rather than over the law. Indeed, Miss Miers has never elaborated any interpretive theory. Her entire professional life — actions, education, reading enthusiasms and writings — fail to substantiate any avidity or aptitude for constitutional history, theories of democratic government, or the study of human nature to garner insights into oppression or persecution, for example, Shakespeare’s “Julius Caesar,” “Macbeth,” or “Richard III,” Gibbon’s “Decline and Fall of the Roman Empire,” Montesquieu’s “The Spirit of Laws,” Alexis de Tocqueville’s “Democracy in America” or Plato’s “The Republic.”
Further, nothing in Miss Miers’ intellectual temperament suggests she would seek to master these and similar works with alacrity after elevation to the Supreme Court. In sum, it is not Miss Miers as a person or as a lawyer that evokes opposition, but her complete inability to understand, to amplify, and to defend originalism as a justice. She is not even an epigone of Antonin Scalia, Clarence Thomas or Robert Bork.
And the fact that she may be an excellent attorney is irrelevent:
Toiling in the trenches or practical experience, moreover, do not mean higher wisdom. A foot soldier who understood the practical implications of the Revolutionary War was no substitute for Gen. George Washington. The business experience of Frederick Engels did not prevent the folly of his 1848 “Communist Manifesto,” written with Karl Marx. Similarly, all the pedestrian experience of Miss Miers is not worth a peppercorn in interpretations of the Contracts Clause, the Sherman Antitrust Act or other business-related laws faithful to their original meaning.
Exactly my point. I have no doubt that the failure of this nomination would be a serious political blow to the Bush Presidency. That is all the more reason he should withdraw it.
Previous Posts:
Oppose Harriet Miers ? You’re Sexist
More On Miers
Solving The Miers Puzzle
Publius v. Harriet Miers
Why Harriet ?
Harriet Who ?
