Monday, October 10, 2005

Will Miers Represent?

I agree with those who've made the argument that President Bush's nomination of Harriet Miers to the Supreme Court is outright cronyism. See, for example, this Randy Barnett piece at The Volokh Conspiracy and this one in the Wall Street Journal. Important newspaper columns detailing the wrongness of this nomination have been written by George F. Will and Charles Krauthammer. A concise summary of objection was offered by Gregory Djerejian and a call to opposition presented by David Frum and also by Stephen Bainbridge. The Corner, The Volokh Conspiracy, Bench Memos, and The Right Coast are all blogs which have also been rich in relevant arguments against the nomination. Beldar responds to many of the aforementioned and makes the best sustained argument in favor of Miers that I've seen, but I remain quite unpersuaded.

On Saturday, there was an interesting New York Times article, which includes a revealing remark with which I think the Bush administration severely undermines one of its central contentions. Dan Coats is the former Republican Senator who the Times tells us the White House has asked to help Miers get through the Senate confirmation. Orin Kerr points out this remark from Coats:
If great intellectual powerhouse is a qualification to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole.
Kerr, like Arlen Specter, derides Coats for evoking the late GOP Senator Roman Hruska, who praised mediocrity in a nominee thusly:
Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?
The Hruska mediocrity echoes* notwithstanding, I, like an insightful and more concise anonymous commenter on Kerr's post, find very peculiar and perhaps more disturbing, the multiple references from the White House's chosen SCOTUS confirmation guide to the nominees role as a representative. It's especially jarring right after reading Krauthammer:
Moreover, the Supreme Court is an elite institution. It is not one of the "popular" branches of government.

To serve in Congress, or even as president, there is no requirement for scholarship and brilliance. For good reason. It is not needed. It can even be a hindrance, as we learned from our experience with Woodrow Wilson, the most intellectually accomplished president of the 20th century and also the worst.

But constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship. Otherwise it is nothing but raw politics. And is it not the conservative complaint that liberals have abused the courts by having them exercise raw super-legislative power...?
Legislators ought to represent their constituents. The President ought to represent the American people. The Supreme Court is outside of that consideration. If someone is to represent me, I want the opportunity to replace him or here once it's apparent they no longer do. You don't give someone a lifetime appointment who's meant as someone else's representative. You give someone a lifetime appointment you trust to exercise wisdom and judgment irrespective of what you would want done on any given issue.

We select people to represent us in order to pass and execute legislation. Considering that, Coats' remarks Saturday totally undercut President Bush's promise Friday that Miers "will not legislate from the bench."



* I may have to use "The Hruska Mediocrity Echoes" as the name for some future post-Blogspot blog.

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