Thursday, October 06, 2005

An Originalist Argument Against The Confirmation Of Harriet Miers.

Well, Ann Althouse didn't take my challenge to put the nomination of Harriet Miers in its rightful context - Federalist Paper Number 76 - so I'll do it myself, though no one reads my blog :)


The best argument against the confirmation of Harriet Miers is an originalist argument.

Let's turn to the words of one of our nation's Founders, Alexander Hamilton, who in explaining WHY the Senate has an advise and consent role in checking the powers of the President to appoint just anyone to the Supreme Court explained:

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. . .

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. . . 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.

(From Federalist Paper 76, emphasis added).

Yes, I do believe I hear Hamilton rolling over in his grave as I write this.

Just imagine Hamilton on the Senate Judiciary Committee, with Harriet Miers before him, trying to explain why it's good enough that as Dubya's personal lawyer for the past twenty years on and off, as someone whose heart Dubya KNOWS, why, of course she should continue to serve his interests as a Supreme Court appointee. Judicial experience? Who needs it... she put on an Ann Landers hat and wrote the "Ask the White House" column for Dubya. Isn't that good enough? Ability to engage in constitutional analysis? Feh. She'll give conservative voters the results they want, even if she has to write a Dick and Jane narrative to get there. Isn't that her right? Damn this liberal elitism anyway... what right do they have to expect someone well versed in constitutional law to serve a life term on the Court anyway. Dubya wants her, Dubya likes her, and gosh darnit, that's good enough. Why shouldn't it be?

Why not?

Ask Hamilton. Read his words again. If it doesn't describe this nomination to a tee, better than any blog or newspaper editorial, I don't know what does.

The case has been made -- there IS no case for Miers' competence as a constitutional scholar. There is no evidence she knows habeas corpus from Halliburton's copulation, no evidence she can be impartial or even the least bit skilled in her interpretation of the Constitution... there is nothing at all evidencing her ability to have warranted this brazen appointment.

If only we could bring our Founders back from the dead to give these self proclaimed conservatives a what for.

I'm really tempted to write my next article solely devoted to the matter of reclaiming originalism for those of us who actually care about the unenumerated, inalienable rights the Founders promised, the separation of powers they so carefully laid a foundation for (that are now being trampled on hideously)...

... to be a true originalist is to be horrified by this latest defiling of the Constitution and all its protections by our President.

It's time for the Democrats to join forces with the conservatives who have until now led the outcry against Harriet Miers. I don't know what they're waiting for, really. It's all there. Federalist Paper 76 versus Dick and Jane "Ask the White House."

It doesn't take a rocket scientist to get why it DOES take a real scholar, if not an experienced judge -- an impartial, intelligent, reflective person of much higher caliber than Harriet Miers -- to serve on the highest court of the land.


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