From the Salmon

I have to confess that I generally find the Supreme Court confirmation process to be a bit confusing and uninteresting. Because most people (including me) are generally unwilling to sift through thousands of pages of past legal opinions and rulings, it becomes an easy process to demagogue. When you add to that the pageantry of nonanswers and Senatorial grandstanding that passes for a hearing these days, I tend to tune them out. I’m sure it’s irresponsible of me, because these decisions are quite important. But that’s the way it is.

So I’m a little surprised that President Bush’s recent nominee, Harriet Miers, worries me so deeply.

On the face of it, this is a pretty moderate and surprisingly uncontentious move from Bush, one that I would ordinarily applaud. And the way ultraconservative pundits flipped out over Miers’ appointment yesterday almost makes me want to like her. But I can’t. It’s not for ideological reasons, since I know next to nothing about her. It’s not a competence thing, although her résumé seems pretty unimpressive for a lifetime appointment to the Supreme Court.

It’s about institutional balance of power.

I don’t find myself agreeing with The Wall Street Journal editorial page that often, but today is an exception. Boston University Law Professor Randy Barnett reminds us of what Alexander Hamilton wrote in The Federalist #76 regarding the importance of the Senate’s role in the confirmation process:

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 Barnett’s.)

Here’s what concerns me: as Barnett points out, Bush’s primary reason for appointing Miers seems to be that she was his lawyer and close confidante. And while that might make her a trusted legal adviser and a fine choice as White House Counsel, I’m unconvinced that it qualifies her to be a Supreme Court justice.

In other administration appointments, President Bush has demonstrated time and time again just how highly he values personal loyalty, sometimes to the exclusion of other qualifications or lack thereof. But loyalty to any president is irrelevant to the tasks of the Supreme Court. In fact, too much loyalty to a particular administration should be a mark against a nominee.

In the next decade, the Court could very well be hearing cases regarding executive powers, civil liberties and prisoner treatment in the fight against terrorism, election law, government transparency and so on. For the next three years, the Bush administration will be presenting arguments in many of these cases. It seems inappropriate to me that one of the people rendering judgment on administration policies and powers would be someone who has been central in crafting the legal rationale for those policies and who, at least early on, saw every paper that crossed the President’s desk.

It’s certainly possible that, once appointed to the Court, Miers wouldn’t show favoritism. The whole reason for the lifetime appointment is to free justices from the political pressures of the day. But barring a promise from Miers to recuse herself from a sizable portion of the cases before the Court in the years to come, I can’t think of what she might be able to do to convince me of her impartiality.

This pick wouldn’t be good enough for Hamilton. And, while it pains me to say this, it’s not good enough for me.