Let the (Bush) Circle Be Unbroken?
Rather than review the intricacies of subject matter jurisdiction, I’ve been thinking about Bush’s nomination of Harriet Miers. As noted in today’s Washington Post, this is a president famous for cultivating, and then tapping, his personal network for purposes of governance. It’s pretty much undisputed that Bush is the reigning poster child for either loyalty (if you like Bush) or nepotism (if you don’t). For the purposes of semi-neutrality, let’s just refer to it as networking.
But what of networking? Is it compatible with the ideals of representative government? Does anybody else feel like the entire country is now run by Texans? In Bush’s defense, I came up with several advantages to the networking for cabinet level posts. Any subsequent thought, however, revealed that these networking advantages did not expand to a Supreme Court nominee, and were instead wrong, bad, and possibly smelly.
Networking does afford savings in search costs. If you already know somebody who is qualified, and have worked with them personally, then why go through the process of an arduous, expensive search? In this case, though, nobody seems to think that Miers has the qualifications of an impressive nominee (save Bush himself). In addition, there already was an expensive search process (headed by Miers herself) anyhow. Bush had years to come up with his short list, and and his adminitration surely spent amazing amount of time coming up with names. So Bush gets no savings here.
Working personally with somebody builds trust. The problem is, though, the fact that Bush trusts his nominee does not mean that Americans, whom the justice ostensibly serves, trust him/her. Unlike other nominees, such as those to cabinet level posts, Bush needs to prove that a justice can be trusted to adjudicate disputes fundamental to our freedoms and rights. Cabinet posts, even most Senators agree, require less of a pedigree not only because they aren’t appointed for life, but also because their primary function under Bush has been reduced to appearing on the Sunday talk shows. Here, Miers having the president's trust is the bare minimum of a standard. Ideally, she should have the trust of the legal community, if not our representatives and/or people. Here, Bush's trust doesn't convey anything meaningful as far whether Miers will be an effective and/or fair justice.
Quid Pro Quo
With many cabinet level posts, choosing team players makes perfect sense. Members of the cabinet are intended to work under Bush, advocating his agenda and adding their own views (in theory). Choosing a nominee who will loyally serve your agenda is efficient for the administration, cutting down on infighting, leaks, and uncertainty. In return for a plum post and access to power, officials in the Bush administration have been happy to comply with these demands. Of course, all of this comes at the cost of Bush’s famous insulation “bubble,” but at least there is an efficiency argument. But with a Supreme Court nominee, quid pro quo is unseemly – it expressly undermines the fundamental premise of the separation of powers. All Americans should find any implication of quid pro quo, and any attempt by the president to unduly influence or tarnish the court in order to get his way should be roundly rejected. The Supreme Court has acted as one of the few checks on executive power in the last few years. Yet despite the executive branch’s almost unfettered power, Americans don’t seem to be any safer, happier, or more prosperous.
So much for the networking efficiency theory. This is one area of government where not only do network effects lack punch, they can be downright offensive. The judicial branch has always been intended to be the least democratic branch of government, and I have never subscribed to the theory that judges should always reflect the attitudes of the public. By the same token, though, judges should not simply reflect the personal views of Bush and his inner circle. I'm sure that she's a very nice person, and has been a great personal attorney to Bush, but Miers is a dud of a nominee.