2005 October 07 Friday
Alexander Hamilton On Harriet Miers Appointment

Randy Barnett points to Federal Paper No. 76 by Alexander Hamilton:

"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 mine.)

Barnett points out that Miers is a perfect example of what Hamilton was talking about.

Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush's personal lawyer. Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton's description any more closely. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?

Ann Coulter reacts to Harriet Miers:

"No. She’s something new: a complete mediocrity.”

Well, she's not new for the Bush Administration. Mediocrity is what I expect from the Bushies. I can't say I'm disappointed by the Miers appointment. My expectations are too low to feel disappointment. The proper feeling? Disgust.

Ann Coulter told Hannity and Colmes that Miers is an "embarrassment". She told Bill O'Riley: "I don't think she's qualified for the job" and "We are talking about the Supreme Court" and "First woman head of the Dallas bar assocation? We're talking about the Supreme Court". "This shows stunning arrogance by the President" and "This is laughable it is so absurd". You go girl!

Coulter points out the extremely low odds that the best person for the job of Supreme Court justice would just happen to be President's personal lawyer. Bush isn't taking this seriously. Yes, it is the Supreme Court we are talking about. An appointee ought to have exceptional qualities and those qualities should have been recognized by others.

Coulter makes an excellent point about conservatives who have gone through the Ivy League and came out still conservative:

Third and finally, some jobs are so dirty, you can only send in someone who has the finely honed hatred of liberals acquired at elite universities to do them. The devil is an abstraction for normal, decent Americans living in the red states. By contrast, at the top universities, you come face to face with the devil every day, and you learn all his little tropes and tricks.

Conservatives from elite schools have already been subjected to liberal blandishments and haven't blinked. These are right-wingers who have fought off the best and the brightest the blue states have to offer. The New York Times isn't going to mau-mau them — as it does intellectual lightweights like Jim Jeffords and Lincoln Chafee — by dangling fawning profiles before them. They aren't waiting for a pat on the head from Nina Totenberg or Linda Greenhouse. To paraphrase Archie Bunker, when you find a conservative from an elite law school, you've really got something.

Back in 1987 Miers was donating to Democratic Party candidates.

During that presidential campaign, Miers contributed $1,000 to the Albert Gore for President Committee, as well as $1,000 to the Democratic National Committee. Gore lost the Democratic primaries to Dukakis.

Wobble wobble wobble. (to the sound of a turkey saying "gobble, gobble, gobble")

Conservatives are angry because they had higher hopes and expectations.

Yet when the announcement came, the criticism came from a direction few expected: deep within conservative ranks. And Mr. Bush's efforts this week to reassure his base is making rifts within this highly diverse coalition more apparent.

Social conservatives want assurances that Ms. Miers will share their views on flash-point issues, such as abortion and same-sex marriage, and that she is genuinely one of them.

Conservative intellectuals, on the other hand, want someone with the legal acumen to roll back the reach of judges.

Bush has done plenty that his base ought to be angry about. Maybe the Harriet Miers nomination will serve as the straw that broke the camel's back and more people on the Right will begin to criticise Bush for a much larger range of Bush failures and policies that are anything but conservative.

A new CBS News poll shows only 26% of the American public thinks the US is headed in the right direction and only 37% approve of the job Bush is doing. Only 225 have "a lot "of confidence in Bush appointees and 30% have "some" confidence in Bush appointees. In the face of this situation Bush appoints a mediocrity "or of being in some way or other personally allied to him" to the highest court in the nation.

Bush's political tone deafness used to be viewed as a sign of his strength and determination. Now that Iraq has developed into a full debacle and he's made some other big mistakes the more common reaction appears to be be "Oh no, what's he done this time and what's he going to do next?".

Update: Check out this graph "Historical Bush Approval Ratings". The trend is downward.

Share |      By Randall Parker at 2005 October 07 01:18 AM  Politics American Constitution

Venomous said at October 7, 2005 3:53 AM:

How exactly does Bush have even a 37% approval rating? These people must be completely insane. If Bush were to lead them to South America to drink Kool-Aid, how many of them WOULDN'T take the drink? I'm almost at a loss for words right now.

Roy said at October 7, 2005 7:30 AM:


Not insane, just uninformed. Specifically, I'm thinking of a number of my relatives who support Bush for his "Christian values", but rarely attempt to keep informed of current events.

As an aside, the fact that many Democrats make all sorts of condescending comments about "Jesusland" only serves to strengthen their support of Bush. Sometimes I wonder if liberals are more concerned about feeling superior than they are about winning elections.

Dan said at October 7, 2005 9:19 AM:

Ann Coulter is just a right wing ideologue who is pissed because her ideologues wernt consulted by Bush. She parrots that idiotic right wing elitist crap. I get annoyed when called elitist by graduates of elite eastern prep schools. Why didnt she mention that about Roberts, my god if there is ever a elite background he had it. He grew up on an estate in "horse country" of northern Indiana,he went to a extreme;y expensive boarding school and then was off to Harvard for undergraduate and Law Degrees. Hardly a typical Hoosier from the "region." Dont get me wrong I supported him,with some misgivings concerning Bush appointing him. Miers appointment is just typical cronyism, Brown, the former head fo FEMA was an old friend from prep school.Another member fo the elite.

Randall Parker said at October 7, 2005 9:47 AM:


They view feeling superior as most important. The desire for higher status is deeply encoded in the brain. Condescension to Christians and to non-liberal conservatives is one way some people boost their feeling of higher status. This is unfortunate. The motive of higher status causes people to take a number of harmful positions in politics.

daveg said at October 7, 2005 10:30 AM:

I agree with everying you are saying, however, the strength with which David Frum and Charles Kruthhammer are oppossing this nomination says to me that perhaps it was not so bad.

I really believe that David and Charles do not have the interests of America in mind most of the time. They are the ultimate contra indicator.

Dennis said at October 7, 2005 10:43 AM:

"TRUST" does not necessarily render "AGREEMENT"

I've listened to "both sides" of the NEW conservative divide on this issue of Harriet Miers' nomination. But I'm having a VERY difficult time shaking the notion that President Bush has gone "One Toke Over The Line." A brief study on the word, "trust," reveals why it is not necessarily the antidote for the "coolaid" that is being served in White House crystal: Synonyms: trust, faith, confidence, reliance -- These nouns denote a feeling of certainty that a person or thing will not fail. Trust implies depth and assurance of feeling; Faith connotes unquestioning belief; Confidence implies strong grounds for assurance; Reliance connotes a confident and trustful commitment.

As a Christian, the definition only reinforces the fact that I can only put MY "trust" in GOD ALONE. This whole discussion of the word by the President's proponents reminds me of one of those irritating verbal gaffes that you hear so often at the beginning of a conversation: "To be quite honest . . ." I'll continue to listen, but my "Mental Threat Awareness" level is at CODE RED.

Randall Parker said at October 7, 2005 10:46 AM:


I can't figure out what you are reacting to. Coulter prefers brains in nominees. She prefers smart conservatives from the Ivy League. She's not so anti-elitist as she is anti-liberal.


Miers really is an embarrassment as an appointment to the highest court. The president's personal lawyer is rarely one of the top lawyers. I see no evidence that she's an exception or even that she's as smart as the average presidential lawyer.

Sal said at October 7, 2005 10:48 AM:

Dont forget Bill Kristol's opposition to the nomination of Harriet Myers. If Frum, Kristol and Krauthammer are opposed it must mean Bush is doing something right.

Randall Parker said at October 7, 2005 10:51 AM:


When it comes to mere humans my take is that trust has to be earned. Bush's patterns of decision-making give me plenty of reasons to think I can not trust him. So I do not trust him.

Yes, I very much get the sense that Bush has finally gone far enough that a lot of accumulated doubt and distrust and anger at him has reached a critical mass. At least I hope so. The attitude in many conservative circles that "he's one of us" has allowed him to get a free ride on too many bad decisions and very un-conservative decisions.

Derek Copold said at October 7, 2005 12:12 PM:

Just because Frum, Kristol and Krauthammer are saying the sky is blue, it's doesn't mean we need to argue it's green.

In this case, they're clearly saying what's apparent to everyone who has any knowledge of politics: Harriet Miers is not a suitable appointment to the Supreme Court. As Coulter points out in the column Randall linked to, THIS is what "advice & consent" is all about. The Senate has a clear duty to reject this nominee on grounds of competence alone. Whether they'll actually do that duty is another matter.

daveg said at October 7, 2005 2:06 PM:

Constitutional Law is mostly smoke and mirrors. It is certainly not the most complex area of law, not by a long shot.

If she has been performing satisfactorily at a major law firm she will have the tools necessary to be a reasonable judge.

What matters, for a Supreme Court nomination, is character and conviction. She will have to hang tough in the face of huge opposition in order to undo the damage of Roe v Wade, as well as other nutty cases such as the latest affirmative action ruling.

I truly believe Frum et al. a) don't want to overturn Roe, b) probably don't oppose affirmative action, and c) like massive executive power.

If they don't like Miers I suspect it because she is not in accordance with one of a-c.

That said, I am giving these opinions from 30,000 feet, as we all are. Given that, my best indicator is to go against Frum et al. That's my call and I am sticking to it.

(From a guy who agrees with Randal 99% of the time).

daveg said at October 7, 2005 2:30 PM:

Looks like Lew Rockwell agrees with me.


This is a call from us old timers who have watched these guys for years. I am ashamed to say I am a *long* time national review subscriber. Almost every call these guys have made has turned out badly. When they all agree on something, with such conviction, you can be sure the right direction is the other way.

crush41 said at October 7, 2005 10:28 PM:

Bush apparently has no sense of political self-preservation. As mentioned, his approval rating is at an all-time low. It's at the drone level now--the ~38% left are going to support him irrespective of what occurs. A fiercely conservative, perspicacious Bork-like nominee would have been a real galvanizer. The Pat Buchanan contingent would have rallied alongside the neocons along with the broader majority of the country that leans traditional. With today's media, Bork would have been confirmed, especially with a Republican House/Senate.

Roy is right. The vociferous dolts on the very-left like Schumer and Kennedy (and similar rhetoric I hear spewed on campus) make me get defensive for Bush even though I think he's doing a pretty miserable job. Such a "ligtning-rod" nominee would have had the same effect, and Bush would have an opportunity to lead a popular charge. Not to mention that he's been promising such a nominee for a decade. Hard to believe he not only blew the opportunity but managed to alienate the supporters he still had hanging around (like Coulter who must be sick of looking like an empty partisan for the last couple of years).

Is anyone confident Miers will be confirmed? Senator Brownback (R-KS), a marquee social conservative, is showing reservation. If he turns against her, it's doubtful.

Randall Parker said at October 7, 2005 10:43 PM:


Yes, given the depth of Coulter's animosity toward liberals I expect it takes a lot to turn her against a Republican President. I normally do not follow her closely. But hasn't she fairly consistently defended Bush?

crush41 said at October 7, 2005 11:02 PM:

Yes, to the point of absurdity. Up until very recently with the border, I hadn't heard her criticize Bush on anything. A few months back she was on Fox saying that the Iraq war has gone masterfully. I saw her in Lawrence (KU, where I go to school). It descended into chaos pretty quickly when she got into it with some load-mouthed 'protesters' who kept shouting her down--she called on people in the crowd to force them to shut up, and some of the yelpers were literally chased out of the auditorium. She was painfully partisan, just throwing out one-liner bombs and not criticizing/questioning Bush at all.

Derek Copold said at October 7, 2005 11:11 PM:

"Bush apparently has no sense of political self-preservation."

Sure he does. He did exactly what he needed to win re-election, and the dopes in the GOP and the conservative movement fell for it. Instead of looking at Dubya's failures in Iraq and Washington, righties obsessed over the minutiae of John Kerry's service record, how he looked funny in bike shorts, how he spoke French and other such important matters, always telling themselves that "We still have those court appointments." Well, sorry, suckers, you put him in office with just about no incentive to behave. He can't run again in 2008, so, as long as he doesn't rape children on national television (and I'm sure Hugh Hewitt would find a way to justify even that!), Dubya can do pretty much whatever he wants.

The only thing he has to lose is his place in history, but last time I checked, Dubya never cared much for history anyhow.

asdf said at October 8, 2005 3:18 AM:

it is ridiculous that people are actually buying this idea that rightists are "anti-elitist".

If you're in favor of competence and meritocracy, you are necessarily in favor of a type of "elitism". That goes double if
you understand intelligence and IQ are quite important in a technological society.

The "anti-elitist" sentiment on the right is really a reaction to anti-democratic imposition
by *unelected*, *arrogant* elites, often of a different ethnicity than the majority population.

This is by no means the same thing as a broad-based, diffuse opposition to meritocracy in general.

Karl Clausewitz said at October 8, 2005 8:56 AM:

The more I see of George W. Bush, the more I come to believe that he's actually the one true Manchurian Candidate: a reliably blundering idiot whose ascent to the highest halls of power was specifically engineered by enemies of the United States to ruin this great country for good.

The Republican Party has its ultimate fantasy baseball line-up to make SCOTUS dependably conservative: a Republican President, a strongly Republican Senate, a fired-up conservative base, elderly and retiring justices, and a dream-team of tough-minded, battle-tested conservative jurists like Michael Luttig who've faced down the liberal pressures to boost up affirmative action and ultra-centralization of government, yet never blinked. As Antonin Scalia IIRC once said, it's not enough for a jurist to be conservative-- he or she must be a tough and very self-confident conservative who's successfully proven and defended his or her ideals in battle. Otherwise, they wind up being just another Sandra Day O'Connor or David Souter-- a weak-minded, insecure, popularity-seeking, jurisprudence-muddling loser who winds up kissing up to unworkable yet faddish liberal judicial orthodoxy and indefensible stare decisis, confusing people rather than clarifying the law, which is the judges' jobs in the first place.

SCOTUS is where the line of the law must be drawn if the USA is to survive as a unified nation. That means NO federally-mandated affirmative action, which is a direct affront to the 14th Amendment and sheer common sense, has utterly failed to help poor African-Americans, and has driven painfully high numbers of talented foreigners to return to their home countries rather than stay in the US, since they face institutionally-supported discrimination that belittles their achievements. Bakke and the lame O'Connor horsecrap in the University of Michigan decision must be overturned. That means not imposing a federally-mandated straitjacket on schools and businesses with hundreds of stupid regulations that have nothing to do with their performance or even their environmental compliance (which is the one legitimate area for government intervention). O'Connor wrote that stupid opinion in that case which allows girls in the 5th grade to sue the families of boys (and their teachers) for the obvious sexual harassment of, uh, frolicking little kids blowing kisses in the schoolyard. Could any justice be more incompetent than Sandra Day O'Connor? Oh, yeah, I forgot-- there's always David Souter and John Paul Stevens, both Republican appointees themselves.

Bush was already down to about 37% support before his brain-deficient nomination of Harriet Miers to SCOTUS, and if he persists with this, he's going to lose conservative support as well. It's obvious that Miers is a David Souter waiting to happen. Who cares whether she's an evangelical Christian? So was Jimmy Carter, for Pete's sake. She's trashed the Federalist Society, downed champagne with the likes of Betty Friedan for some course she sponsored at SMU, and supported liberal candidates on more than one occasion in the past. Clinton didn't hesitate to nominate ultra-lib Ruth Bader Ginsburg, and this was when he was facing a Republican majority in the Senate-- Bush has his own party in there and he's balking at doing the converse for conservatives? WTF?

As for moronic party hacks like Hugh Hewitt and Ed Gillespie who belittle Miers opponents for being sexist and elitist-- since when did conservatives start using the classic Khmer-Rouge apparatchik style of denunciation so popular with Marxist professors on US universities? Don't debate the ideas of others on legitimate terms. No just reach for a few standard epithets-- "RACIST!!!", "SEXIST!", "ANTI-SEMITIC!!", "ELITIST!!", "HOMOPHOBIC!!"-- and shout 'em as loudly as you can until you shame and shut up your opposition. Leonid Brezhnev would've been proud. WTF is Bush thinking? He needs to withdraw the Miers nomination at once. It'll then be seen as a minor misstep, so long as he then nominates Luttig or someone cut from a similar cloth.

Karl Clausewitz said at October 8, 2005 9:00 AM:


I too tend to disagree with neocons like David Frum and Charles Krauthammer on most matters (like Iraq), but on the Miers appointment their criticisms are spot-on. Be careful about instantly forming an opinion based on the pen that's writing it-- occasionally, people like Frum even make sense. Also keep in mind that non-neocons like George Will, Laura Ingraham and quite a few others have also spoken out against this appointment.

crush41 said at October 8, 2005 10:48 AM:


Heh, maybe. Or it came from an awful alternative choice--empty lip service is still preferable to outright antagonism in the eyes of social conservatives. Personally, I voted for Bush because of capital gains tax rates--as someone young with a moderate income who has invested since I started cutting grass, the 5% rate on long-term gains is probably the most trenchant policy of the federal government in my daily life. Surely you do not think the right would have been more happy with a Kerry nominee? There was a huge opportunity for Bush and he blew it.

John S Bolton said at October 8, 2005 5:49 PM:

It is worrisome that we may be getting someone who, while being undistinguished, has the gross effrontery to feel perfectly qualified for such an important position. These are the marks of an antimerit activist, a little Kennedy, but forty years late for the party, like the Bush tribe. Will such a wizened little old quota placeholder, not feel malicious glee, as the shysters move in for the kill, getting quotas even for the science and engineering departments? Will we have a witch's cackle, instead of loyalty to the progress of civilization?

Engineer-Poet said at October 9, 2005 3:49 PM:

Bush as Manchurian candidate?  I don't think you have to look beyond our own borders for the causes here.  Bush is strongly supported by evangelical religious believers, who include among them a great many millenialists.  This was nearly as true back in the Reagan administration; I recall seeing a quote from James Watt to the effect that conservation was pointless because the end of the world was at hand.

If conservation is pointless, so are planning for the strength of the military, retirement programs, medical research... everything that is about the future, because these people believe that there will be no future, or at least none under human direction.

Even worse, some of them believe that it's up to them to actively bring about the conditions for the Second Coming.  Think about that for a minute.  No person who believes such a thing is fit to hold public office; they cannot defend the nation and the Constitution if their allegiance is to a conflicting religious vision.

This appears to include Bush himself.  He's unfit for the office he holds.

Miers was raised Catholic, but is now a member of a church which preaches young-earth creationism.  This might just have been a shrewd political move, but if her conversion was sincere she is completely compromised with regard to all legal issues regarding science vs. religion.  Public schools teaching that the earth is only 6000 years old are just the tip of that particular iceberg.

Religion can be a source of strength, but dogma is dangerous.  The forces behind Bush are sending us down the same dead-end road travelled by Islam.  We need more open-mindedness; Miers would be (and Roberts probably is) exactly the wrong sort of person to bring the Court in that direction.

mariana said at October 9, 2005 4:47 PM:

"This was nearly as true back in the Reagan administration; I recall seeing a quote from James Watt to the effect that conservation was pointless because the end of the world was at hand."

That Watt quote is total bullshit. There was a little contretemps over it this past year. The quote was used by Bill Moyers and he eventually retracted it.

Engineer-Poet said at October 9, 2005 10:02 PM:

Even if fabricated, it would not have been believed had it not been consistent with the administration's behavior.  Of course, the justification put forth for a given policy doesn't matter as much as the results (one should always ask "Cui bono?").

mariana said at October 9, 2005 11:22 PM:

I'm sorry. With the Reagan administration's behavior? Well, I'm sure some liberals in the 80s thought Reagan was trying to bring about a nuclear apocalypse with Russia.

Derek Copold said at October 10, 2005 9:18 AM:

"Surely you do not think the right would have been more happy with a Kerry nominee?"

In the longer term? Yes. Definitely.

Kerry's ability to act would have been severely constrained by the GOP-controlled congress. Remember, welfare reform, the most significant conservative political victory in a long time, occurred with a Democratic president at the helm. Kerry doesn't have a fraction of Clinton's popular appeal, so the Congress would have had even more leeway to block and force popular conservative legislation on him. You would certainly have been more likely to see a serious attempt at reforming immigration with a Kerry presidency then you will ever see with Bush, and that's something far more critical than the money we both save on capital gains cuts. After all, it's much, much harder for kids to start cutting grass these days when they have to compete with lawn services staffed with illegal alien wage-slaves.

Karl Clausewitz said at October 10, 2005 12:54 PM:

Excellent point, Engineer-Poet. Anybody who so sincerely believes in the doctrine (let alone the desirability) of such apocalyptic scenarios is, by definition, unfit for higher office. And whether James Watt actually said that or not, for whatever reason he was a a total idiot with an atrocious record on environmental defense during the Reagan Administration. You can't keep wrecking the environment more and more every year like this-- eventually, the natural controls break down and you wind up with a major plague (e.g. an avian flu) that would have otherwise been contained except for the massive destruction of wetlands and forests that tends to cool these effects down.

It's enough to make me seriously consider emigration from the United States. I speak a little German and have given Germany and Austria a thought-- I just hope that Angela Merkel has enough power there to really push through some bona fide market reforms.

RayB said at October 15, 2005 1:19 AM:

Not a defense of Miers, but a question: Until the Johnson administration, many appointees to the High Court were not judges, or even lawyers, previously. Warren was a politician; John Jay was a statesman, anddo not believe he was a lawyer; Marshall was considered a federalist flack.

There are probably posters on this site who have a better appreciation of the Constitution than O'Connor, for example, or Bryer, or Roberts and Myers, many of whom are not lawyers, but who harbor genuine affection for the traditions of their country. The Constitution is not that complicated a document; to defend it against the current political usurpation is much more a matter of integrity and moral strength than any sort of intellectual gifts.

Randall Parker said at October 15, 2005 10:14 AM:


The fear is that anyone who isn't "deep" in their thinking about conservatism, the constitution, etc, will gradually get wooed over to the Dark Side over the years. So many Republicam appointees have gone wobbly that this fear seems very well justified.

Anthony Scalia has made some pretty excellent comments on why this happens. In a nutshell: There's a great temptation to play king. Convince yourself of your wisdom and start rewriting the document to accomplish all sorts of policy objectives that you decide are good things.

Miers has a sufficiently suspicious history (e.g. donation to Al Gore back in the 1980s and criticism the Federalist Society) to cause a lot red lights to flash in conservative circles. She's also obviously a Bush crony and therefore isn't seen as an independent mind.

Hey, from a conservative perpsective maybe she'll work out. But conservatives are justified preferring appointments that are much less risky.

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