Monday, October 17, 2005

What Bush is up to with the Miers Nomination

William Edmunson makes the most well articulated and comprehensive case against the Miers nomination I have seen so far. One of the key issues he raises is the way in which it attempts to get around the separation of powers.
    A far more serious objection to the Miers nomination is that she is not merely a crony of the President, but a person who has been for so long in the direct, personal service of George Bush that her appointment would tend to undermine the separation of powers. As Randy Barnett (Law, Boston U.) has reminded readers of the Wall Street Journal, Hamilton explained in Federalist No. 76 the purpose of the role the Senate was given in high appointments:

    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.

    Barnett goes on to say: “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?”

    The separation-of-powers worry is far from merely valetudinarian. As Anthony Lewis reports in the New York Times, Miers has left no public trace of her views on the extent of presidential prerogatives in the name of “war on terror”–-such as torture and warrantless detention of citizens. Lewis notes, however, that torture-apologist John Yoo (UC-Berkeley, Law) wrote in the Washington Post, soon after her nomination (“Opportunity Squandered”), that Miers was “one of the key supporters in the Bush administration of staying the course on legal issues arising from the war on terrorism.” Yoo ominously added that “it is hard to see how the administration could reveal Miers’s position on these issues, given its tough, five-year struggle to preserve the confidentiality of executive-branch deliberations.”

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