Strengthening Constitutional Self-Government

No Left Turns

Kmiec and Barnett on Miers

I missed this in the Post this morning.On the other hand, Randy Barnett has written a draft of the speech that more than a few folks on the Left and the Right might be tempted to give. Alexander Hamilton is invoked by both sides.

Update: Caleb Verbois (Comment #1) and Ken Masugi make the same point against Barnett, and in other respects are on much the same wavelength.

Discussions - 1 Comment

Professor Knippenberg,

I’m not yet sold on Miers, but I find the arguments from Barnett et al to be wholly unconvincing. He forgets that the same Hamilton who wrote Federalist No. 76 was appointed by his friend, and "father" George Washington, to the Secretary of Treasury. These sort of appointments were in fact frequent all through the Patrician Era Presidencies.

Neither is it unusual, or even normatively problematic, for someone to come to the Court without previous bench experience. One need look no farther than Rehnquist to see that.

No, the real problem I have with this nomination is that I fear the President has lost a teachable opportunity - a chance to nominate a solid, well qualified conservative jurist - and force a real debate with the Democrats in the Senate over Constitutional interpretation and the role of the Judiciary. It may be that the President determined now is not the time to have that debate...and perhaps he is right...but with 55 Republicans and a whole group of new, young conservative Senators - when might that time be?

A related problem is that it continues the Republican trend of nominating men and women who do a good job "keeping their heads down." This is not a good signal to send to the next generation of lawyers and jurists - "don’t say anything out loud or not only will you have trouble getting confirmed - but we won’t even nominate you."

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