Reply to a reader about the Miers nomination and more
A reader sent me the following note, and my reply to him follows:
> Yo, Ross!
> You most likely don't recall that the first time I wrote to you it was
> because of your letter to The New York Times that said "advice and consent"
> really means prevent nepotism and cronyism. So when I sent you an email a
> couple of days ago I was wondering if you think Miers qualifies as cronyism.
> The New Yorker this week has a Hamilton quote that says the purpose of
> advice and consent is to cause a president to be embarrassed by appointing a
> crony (paraphrasing, you understand). Hamilton, apparently, couldn't imagine
> a president like Bush who is incapable of embarrassment. See Mike Brown.
> Anyway, I'm still wondering if Harriet Miers is a crony.
> I looked again at some of your Supreme Court thoughts. I would have expected
> that a libertarian would buy an implied right to privacy. What else
> motivates a sentence like, "The right of the people to be secure, etc."?
> I've always assumed that the reason the right objects to "right to privacy"
> is because it was enunciated on an issue involving sex. If it had come about
> on a question involving money, right-wingers would have been overjoyed.
You bring up a couple of very good questions.
Regarding Miers: Could be cronyism, but I don't think that's the case. Just the fact that he's known her a long time doesn't mean it's cronyism/nepotism with their additional implications of choosing someone who isn't qualified. There have been many Supreme Court justices (including Rehnquist, I believe) who were not judges before being selected for the Court.
That said, I'm not particularly pleased with the pick, particularly given that the characteristic about her which Bush wants to emphasize seem to be her evangelical christianity rather than legal talent. The recent Raich case was wrongly decided, and the current assisted suicide case easily may be, due to Justices who believe in limited government or federalism...except when they have a personal "moral" issue with the subject, like marijuana or suicide. Scalia's position in Raich was reprehensible, much worse than Thomas's error in the interstate wine shipment case.
This leads directly to your second question about a right to privacy. I am an originialist...I believe the Constitution means what it says...not more and not less. I wish I could see a right to privacy in the Constitution, but I just don't see it. I don't want to go far down the path of saying it's "implied" because then someone else can go down the path of saying that the general welfare clause implies that the government can redistribute my hard-earned money to someone who claims they need it more than I do. I don't want the government to say that the interstate commerce clause "implies" they can regulate just about anything as long as they call it that.
Of course, these things have all happened already. I would gladly give up the rulings which are based on an implied right to privacy in exchange for losing the rulings which have, through implication or overly broad interpretation, massively expanded government power at the expense of individual liberty, the key founding principle of our nation.
As I "implied" above, I absolutely agree with you that conservatives these days lose their constitutional balance when it comes to sex, drugs, or anything else where they think their moral position should trump the rule of law. It's disgusting, and its very dangerous for the country. The liberals are even worse, as they have some constitutional balance only in the few areas where the conservatives don't. The liberals are the ones who brought you Kelo, about which I have written a lot, as well as the welfare state, the insane power of teachers' unions over our schools to the detriment of our young people, racial quotas in hiring and schools, and many more absolutely inappropriate and unconstitutional uses of government.
Back to Miers for a minute: I think the reason Bush chose her is that he's incredibly sensitive about what happened with his father's nominee, David Souter. Souter has become one of the most reliable liberals on the court, including voting to let the government take your house (in the Kelo case.) Bush wanted to choose someone whom he was absolutely certain would not suddenly become a liberal when it came to voting.
It's ironic that she's having trouble with the most conservative members of the Senate, like Senator Brownback, when she's probably every bit as conservative as he is...and possibly every bit as willing to ignore the plain meaning of the Constitution if there's a "moral" issue involved.
If there's a reason to oppose Miers, it would be because one thinks that she can't or won't rule with fidelity to the Constitution, rather than ruling based on her personal views on things. That's the part that concerns me, not cronyism, because she's clearly smart enough to do the job and her lack of judicial experience is far from unique among nominees. At the end of the day, I stand by my prior comments that unless there is corruption in the nomination or nominee, or an inability for the nominee to do the job, the Senate should vote to confirm even if they have doubts about prior experience or disagree politically with the nominee. That said, I wish Bush had chosen someone else...like Janice Rogers Brown.
Thanks for keeping in touch!!!
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