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Just one Guy's personal blog of thoughts & sense--common, non, and otherwise--of the world in which we live.

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Location: Nipomo, Central Coast, California, United States

I also blog over at Nipomo News, Messenger and Advocate and Bloggernacle Times

Sunday, October 09, 2005

The Founding Fathers and Harriet Miers

I can't know for certain; however, I'd venture to say George W. Bush has never read Federalist Number 76. If you want to be one up on Mr. Bush, you can review it here. In this paper, Alexander Hamilton, in his own right a brilliant constitutional lawyer, discusses the Presidential power of appointment. Specifically, in part of this paper, Hamilton discusses the Senate's role in giving its advice and consent to any particular Presidental nomination in relevant part:

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. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. 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.

So, the question now arises, will the Senate also arise to the occasion and fulfill its obligation under the Constitution? The United States Constitution sets for the standard for Executive appointments of Supreme Court Justices. The Constitution, Article II, Section II, Clause II provides:
Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The Senate's Constitutional duty is to advise and consent to Ms. Mier's appointment, contingent upon Hamilton's checks and balance formula outlined in Federalist 76. I'll reserve my final judgment until after Ms. Miers' confirmation hearings, assuming she lasts that long; however, based on what facts we know at this juncture, Ms. Miers' nomination is classic for rejection based on her well documented personal relationship with Mr. Bush, and the paucity of her constitutional qualifications.

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