A Stitch in Haste

What would Alexander Hamilton do?

Professor Randy Barnett: (WSJ - $)

Federalist No. 76: To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity...

He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

Professor Douglas Kmiec:

The president actually believes that, as Alexander Hamilton put it, the Supreme Court is intended to be "the least dangerous" branch of government. Hamilton himself drew this inference from Montesquieu, who taught the first Americans everything they knew about the separation of powers. And the most important thing Montesquieu taught the Founders is that the political or policymaking branches are to remain separate from the judiciary if tyranny is to be avoided. Indeed, Montesquieu instructed, the judiciary should be "next to nothing."

Guess which invocation of Hamilton I side with.

Kmiec, a former Ronald Reagan and George H.W. Bush attorney, is trying to pull the same sleight-of-hand that all the other Miers apologists are scrambling to carve into talking points: that being "nice" or "loyal" or even a "good private attorney" is somehow interchangeable with being qualified.

Yes Miers seems like a perfectly nice person with a perfectly nice résumé, one that would certainly land her any variety of senior legal positions in the private or even the public sector. Perhaps she is even qualified for a circuit court appointment where she could begin to gain judicial and jurisprudential experience.

But what on earth does that have to do with the Supreme Court?

I am still waiting for someone — anyone — to point to a single credential in Miers' background that suggests she has any competence whatsoever to do what the Supreme Court does: apply complicated principles of constitutional law to complicated fact patterns?

No tiptoeing around the issue. Open Thread: Which selling point has anything to do with the most complex constitutional law questions of our time? Fully explain you answer!

--Graduate of a second-rate law school. (Has her GPA or class rank been disclosed? Even her grade in Con Law would be helpful.)

--One year filling an uncontested, at-large seat on the Dallas City Council.

--Head of the Texas Lottery Commission.

--Survivor (conqueror?) of the Texas "old boy network" of lawyers.

--Head of a state bar association.

--Head of a large private law firm.

--Active civic volunteer.

--Political insider notorious for loyalty and "hard work."

I ask again: how does a single one of those otherwise praiseworthy credentials relate in any way to what the Supreme Court actually does (i.e, complex constitutional litigation)?

I actually do concur with Miers' supporters to some extent: She is not stupid. She is not weak. She is not ambivalent.

And she is not qualified to sit on the Supreme Court.

If you don't believe me, then just ask Alexander Hamilton.