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Wednesday, October 05, 2005

 

justice harriet miers


following on the heels on the confirmation of chief justice john roberts, the white house nominated harriet miers, george bush's personal attorney, to take sandra day o'connor's chair on the supreme court.

the nomination has been, like so many stories of the bush presidency, a tale of executive impunity. as much as the left objects to the idea of a texan religious fundamentalist (whatever her appropriately unprincipled lawyerly record) being appointed to the high court, the right objects to her lack of track record -- one gets the impression that some believed their backing of roberts would be rewarded with a naked victory in the nomination of a longtime conservative militant. and the cry of cronyism and unqualification has gone up from every quarter -- from george will to the wall street journal. in will's words,

If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.
why, it must be asked, is a nominee being forwarded that was so sure to displease so many on both the left and the right?

the outstanding similarity between roberts and miers is telling. neither have any record in jurisprudence which can be attacked; both are remarkable in managing to have a long careeer as a lawyer without ever having evinced a principle. clearly, this is a quality (so-called) which the administration has sought in its nominees. and why? because it makes them unassailable on grounds of ideology. tony mauro at legal times, writing on now-justice roberts:

But there is one way in which Roberts stands apart from -- and possibly ahead of -- the others. Luttig, with 13 years on the 4th Circuit, and Wilkinson with 20 have written enough opinions that it is easy to chart how conservative they are. McConnell has only two years on the 10th Circuit, but he has a provocative paper trail from his 17 years as a prolific conservative law school professor.

By contrast, Roberts, with 20 months on the D.C. Circuit, has few opinions or other writings that have attracted enemies. As a result, some conservatives have made unflattering comparisons between Roberts and Supreme Court Justice David Souter, whose short stint on the 1st Circuit before being appointed in 1990 by President George H.W. Bush failed to reveal Souter's moderate-to-liberal leanings on some issues.

Yet those who know Roberts say he, unlike Souter, is a reliable conservative who can be counted on to undermine if not immediately overturn liberal landmarks like abortion rights and affirmative action. Indicators of his true stripes cited by friends include: clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel's office and at the Justice Department into the Bush years, working with Kenneth Starr among others, and even his lunchtime conversations at Hogan & Hartson. "He is as conservative as you can get," one friend puts it. In short, Roberts may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas.

But this take on Roberts puts some of his biggest boosters in a quandary. They praise Roberts as a brilliant, fair-minded lawyer with a perfect judicial temperament. But can that image as an open-minded jurist co-exist with also being viewed as a predictable conservative?
counsel is paid not to take moral or principled stands for or against certain issues. it is paid to defend the client as best it can, regardless of and often in contravention to personal principle. as such, counselors can claim to have no particular ideological allegiance even in spite of a resume such as roberts posesses. moreover, the durability of attorney-client priviledge is an iron bulwark against much difficult but important questioning. the administration has selected these candidates without juridicial experience on purpose because they know that the ideology of the nominees has not been exposed by the light of decision and is guarded by priviledge. in this manner, the administration can and has elevated persons of like mind without subjecting that mind to scrutiny. and, as has been said, there is nothing the pure and hubristic mind detests more than scrutiny.

also similar are backgrounds which make both roberts and miers personally loyal to the bush clan. george will again:

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.
indeed, it is hard to believe that personal loyalty, so important to this president -- vastly more important than accountable and responsible government -- isn't a primary driving force in these nominations. miers has been affiliated with the bush family for more than a decade as their personal attorney, the postmodern equivalent of one's father confessor. more subtle is the relationship of roberts to the bush family, which has sought consistently to forward his career dating back to at least 1982, where he took a position in the reagan/bush administration in associate counsel to the president. he was installed in the politico-judiciary with george h.w. bush's unconfirmed nomination of roberts to the d.c. federal appellate bench in 1992. roberts also advised florida governor jeb bush during the 2000 presidential election recount fiasco and helped construct for the bush family the supreme court case that elevated bush to power. obviously, fealty to the bush family is a central consideration in both cases.

there is also the matter of who is conspicuously not outraged by miers' nomination -- the religious right. her candidacy, according to the washington post, was run past james dobson, head of protestant fundamentalist political-paramilitary group focus on the family, to his approval. chuck colson was similarly consulted. pat robertson's political propaganda organization, the christian broadcast network, is actively talking up miers in scripted interviews. given the final bankruptcy of western protestantism into mundane cults of political revolutionism, it must be said that her allegiance to bush, who remains a hero of these cults, likely runs into their common goals.

yet these are but elements of a more troubling broad current.

Ken Mehlman, chairman of the Republican National Committee, yesterday held a conference call with conservative leaders to address their concerns about Miers. He stressed Bush’s close relationship with Miers and the need to confirm a justice who will not interfere with the administration’s management of the war on terrorism, according to a person who attended the teleconference.
this page has long observed the onset and progress of revolutionism in the guise of archaism under the rubric of constitutional originalism. this is seen here to be no less than an undermining of the separation of powers in favor of the expansion of a jacobin presidency with unchecked powers of dictatorial scope -- the very slide into tyranny described by plato. roberts and miers compound a philosophy of diminished court authority in deference to the president as tribune of the plebs -- a philosophy which they share with justices scalia and thomas -- with a personal loyalty to the bush family.

some would say that such loyalty is an ephemeral concern -- after all, george bush will not run for president again. this page would say first that such assumptions can no longer be made in the age of mass politics. but, beyond the potential suspension of balloting, there must be an appreciation of the potential candidacy of jeb bush for the presidency in 2008. should he win, it must be said that some aged sitting justices will likely not outlive his term.

in light of the already advanced deterioration of separated powers in american government, a block of justices with a philosophical desire to construct an imperial president and deep personal relationships with the first dynastic family of american power is a very serious compromise of already weakened institutions and a possible paving stone on the road to an overtly augustan political system. as was said at the opening, powerful voices on the left and right disapprove of miers nomination -- and yet there is virtually no question of her eventual confirmation. what does that say about the power of the presidency vis-a-vis the legislative and judicial branches in this moment? and how would that balance further deteriorate under the scenario we are here considering?

while it is impossible to predict the future and nearly as much so to divine the current course of events, the mutation of american government from republican constitutionalism to an augustan presidential autocracy is a clear trend in our development, much commented on here and elsewhere. the nomination of harriet miers represents no watershed event in this evolution but another incremental step toward an unquestionably imperial management. it should be seen -- and lamented -- as such.

UPDATE: harriet miers is a church-hopper, in perfect conformity with her type as a rootless individualist masquerading as a christian, as this page has previously analyzed.


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