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Thursday, October 27, 2005

 

for the prerogatives of the executive


wapo reports that harriet miers has withdrawn her nomination from consideration for the supreme court.

this page, along with the rest of the world knowing precious little about miers, noted that miers' nomination was the product of a secrecy-obsessed and imperiously ideological white house culture that refuses to be subjected to examination or discourse. miers was also a religious fundamentalist, exactly the sort of rootless revolutionist and misguided believer in destructively sacrificial noble heroism that this page believes must be kept from the high offices of this society for its own preservation. as such, it is hard to see her failure as a bad thing.

but this is no victory for the defenders of the rule of law and the enemies of the imperial president. the spotless mind remains intact. from miers' withdrawal letter:

As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy. While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue.

As I stated in my acceptance remarks in the Oval Office, the strength and independence of our three branches of government are critical to the continued success of this great Nation. Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.
from the president's statement:

I understand and share her concern, however, about the current state of the Supreme Court confirmation process. It is clear that Senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a President's ability to receive candid counsel. Harriet Miers' decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers -- and confirms my deep respect and admiration for her.
the contempt for the legislative body -- indeed, any rival power center and any form of lawful institution that might impede the unfettered presidential will -- that rules this administration is clearly on display here again. bush nominated miers specifically to keep relevant and revealing information about miers' judicial dispositions from appearing before the senate. now, in withdrawing the nomination, the president blames not himself for forcing a conflict he clearly instigated in the hopes of destroying yet another province of senatorial power but any meaningful institutional process of vetting lifetime appointees to the high court. indeed, as the writer of miers' letter notes, "Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension" -- and, if both cannot be had so easily, it is the imperial prerogative to be above question that must stand, for the latter was merely a means of expanding the former. such is the manner of constant subversion of the rule of law and separated powers that is not merely the guiding principle of this lawless administration of jacobin revolutionaries but the shining path toward american dictatorship.

that the administration which wrote these letters has the temerity to characterize the senate's request for some kind of meaningful information as some sort of overstep into a "traditional" imperial prerogative is no longer shocking. where the miers letter says that the "independence of the executive Branch [must] be preserved", it begs the questions: in a system of checks and balances, to whom should the emperor be beholden if not the senate? does freeing the executive from the constraints of senatorial review really constitute the preservation of anything?

clearly, when asked the former question, the answer for the jacobin is "the people" -- and, in answering the latter, the jacobin has revised his history sufficiently to see with eyes tainted by the prism of rousseau that the president is and has always been nothing so much as a tribune of popular endorsement -- thus revealing their answer to the former in fact to be "only himself". the further cheekily implied sanction of separated powers ("the strength and independence of our three branches of government") is masterful if rueful irony.

i fear to think what the new nomination will be. while one can all but guarantee that the next will be as much a spear-carrier for the assault on the judiciary as either miers or roberts, much was made of the unrest in the far right ideological wing of the republican camp with the miers' nomination. while religious militants were placated by miers, many among the president's hardcore militants are in their hubris spoiling for a fight, any fight, though the heavens may fall, to the bitter end in an effort to destroy the tattered remains of the modern western liberal tradition that dates back to bentham and mill -- a political prelude of the battle at meggido that so many of them so eagerly anticipate. if the president, in his current weakened state, feels compelled as so many 21st c american politicians have to unify and energize his base with the nominee instead of attempt to govern with respect to the whole of the people, then the united states might be much closer to the ominous return of the political violence that has periodically plagued western societies with ever greater intensity as our civilization trudges toward dissolution.


Do you really think Roberts will be that bad? While I tended to side with you early immediately after he was nominated, I'm not quite sure the evidence of him being alligned with Scalia's originalism is convincing. If he is anything like the judicial minimalist Cass Sunstein has described him as, I think he will be an excellent justice. Bill Kristol even has described him as an establishment conservative, contra the revolutionary conservatism of Scalia, et al.

Of course, this raises the issue of why we can't pigeonhole him at the moment. Is it because he really is a relatively non-ideological justice or is it because his neoconservatism has been muted to get on the bench? Given the ideological nature of the administration, the latter is certainly possible. However, the fact that its incompetence has overcome its ideological aims in numerous cases gives me hope for Roberts.

 
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time will tell, mr anon, but i suspect the reason he was nominated was 1) because he will be a constructionist and 2) he was extremely difficult to question. if the administration has made a mistake vis-a-vis 1), so much the better for us -- but i think it is clearly their intention to place revolutionaries on the court. and while we know very little about him, given roberts long history of involvement with the bush family, going back over 20 years, i doubt they could be so mistaken.

in any case, parties like the christian coalition, tony perkins and james dobson -- people who get their information directly from the white house, admittedly -- applauded him on constructionist grounds.

 
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Why does this all make me so uncomfortable? I want to be happy that the Miers nomination was such a fiasco for Bush, and so it appears, superficially. You're a thoughtful guy. Tell me why the cascade of evangelical appeasement, right wing opposition and finally capitulation seems so...staged. Bush's humiliation seems just a bit too perfect to be real.

Why do I have such a strong sense that there's an alternative story line behind the Miers saga that I can't quite puzzle out?

~

 
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