Lame defense

• Article
• Comments ()
• Click-2-Listen
• Videos

By

The patently lame arguments of defenders of Harriet Miers' O Henry-like surprise nomination to the U.S. Supreme Court confirm her unsuitability. She should graciously withdraw and spare the Supreme Court and herself embarrassment.

According to the owlish observation of former House Speaker Newt Gingrich, Miss Miers must be a female version of Justice Antonin Scalia because "George W. Bush selected her." But President Bush should be distrusted over Miss Miers because no one else (including Miss Miers herself) would have made the nomination.

The president is thoroughly unschooled in constitutional law and ill-equipped to recognize gifted and longheaded minds -- for example, Chief Justice John Marshall and Associate Justices Joseph Story, Oliver Wendell Holmes, Louis D. Brandeis or Robert Jackson.

Fallible presidents need skepticism and criticism to check their follies. President Dwight Eisenhower would have profited from protests against two of his self-confessed biggest mistakes: the appointments of Chief Justice Earl Warren and Associate Justice William Brennan. Ditto for President George Herbert Walker Bush's appointment of Associate Justice David Souter, who was preposterously touted as a "grand slam" expounding a judicially conservative philosophy.

Ronald A. Cass, co-chairman of the Committee for Justice and dean emeritus of Boston University School of Law, berates Miss Miers' critics for assuming "that it is more important that their preferences for appointment to the court be respected than that the president's choice be given presumptive weight." But Miers' detractors make no such claim. They believe, however, it is more important the original meaning of the Constitution be respected than that the president be slavishly saluted. And as "Federalist 76" amplifies, the Founding Fathers were unequivocal that the Senate should defeat a nominee chosen because of personal attachment or cronyism, a standard which fits Miss Miers' nomination like a glove.

The nominee, moreover, has never championed an "original meaning" theory of constitutional interpretation that confines judicial discretion and places the justices under rather than over the law. Indeed, Miss Miers has never elaborated any interpretive theory. Her entire professional life -- actions, education, reading enthusiasms and writings -- fail to substantiate any avidity or aptitude for constitutional history, theories of democratic government, or the study of human nature to garner insights into oppression or persecution, for example, Shakespeare's "Julius Caesar," "Macbeth," or "Richard III," Gibbon's "Decline and Fall of the Roman Empire," Montesquieu's "The Spirit of Laws," Alexis de Tocqueville's "Democracy in America" or Plato's "The Republic."

Further, nothing in Miss Miers' intellectual temperament suggests she would seek to master these and similar works with alacrity after elevation to the Supreme Court. In sum, it is not Miss Miers as a person or as a lawyer that evokes opposition, but her complete inability to understand, to amplify, and to defend originalism as a justice. She is not even an epigone of Antonin Scalia, Clarence Thomas or Robert Bork.

Mr. Cass acclaims Miss Miers for dormant but potentially dazzling insights into cases affecting business or economic growth because of her experience in the corporate trenches. But he cites nothing she has said or written about the Contracts Clause, the Commerce Clause, the Takings Clause, antitrust law, labor law or federal pre-emption to substantiate his wild speculation. Toiling in the trenches or practical experience, moreover, do not mean higher wisdom. A foot soldier who understood the practical implications of the Revolutionary War was no substitute for Gen. George Washington. The business experience of Frederick Engels did not prevent the folly of his 1848 "Communist Manifesto," written with Karl Marx. Similarly, all the pedestrian experience of Miss Miers is not worth a peppercorn in interpretations of the Contracts Clause, the Sherman Antitrust Act or other business-related laws faithful to their original meaning.

Mr. Cass urges that Miss Miers' "modicum of practical judgment" might have saved the Supreme Court from its asserted misstep in Kelo, which upheld eminent domain to boost economic growth. But how would he know? She has been publicly silent. He indicates she would recognize the stumble in International Salt v. United States (1947), which held illegal International Salt's requirement that lessees of its patented machines be used only on International's salt products. But how would he know? Miss Meirs has said nothing to suggest she thinks tying arrangements between patented and unpatented articles should be permitted. In any event, a justice is obligated to interpret the law as its makers intended -- even when that intent thwarts free market economics, for instance, minimum wage or community reinvestment statutes. The egregious error of the Lochner era court was its delusion the Constitution had enshrined Adam Smith's "Wealth of Nations."

Harriet Mier deserves admiration for industry, unflinching stances against invidious discrimination and an impressive rise in a male-dominated profession. She would earn even more honor by emulating Gen. William Tecumseh Sherman's message to the 1884 Republican National Convention: "I will not accept if nominated and will not serve if elected."

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has published an "Advice & Consent Handbook" on Supreme Court appointments and the judicial filibuster.