Randy Barnett has a
post onThe Volokh Conspiracy rgarding Ron Cass's Defense of the Miers Nomination.
Ron Cass wrote:
Conservative critics should be especially ashamed. Conservatives have been insisting that judges should respect the Constitution and laws, secure that this is enough to ask. Conservatives also have been aware that the Constitution grants substantial discretion to the President in making appointments. It is his call. We have elections to determine who gets to make picks such as this, and President Bush - to the delight of conservatives across the nation - won. Now he has picked someone he knows well and believes shares his vision of modest and law-bound judging, someone who helped steer the President to select other judges in that mold. Judges like John Roberts.
It's time for those who have made common cause with the President to give him exactly the presumption that the Constitution does and political alliance should - that he has the right to make appointments of anyone who has the competence and temperament for the job. The presumption is that he has done this.
Now it's time to stop whining before the next turn of the political wheel gives conservatives something real to whine about.
My response:
Conservatives have been burned again and again by so-called stealth nominees, which is why Bush made a specific promise to nominate SCOTUS justices of the Scalia/Thomas ilk to get elected twice. He didn't cite those two by accident. That promise is a large reason he got elected. He has utterly failed to live up to that promise with the Miers pick.
And yes, a president ought to be given deference with these selections, but that deference only go so far when the pick is a crony with a weak (for the position) resume, and there certainly is not a presumption. Moreover, Bush chose to limit his own discretion when he made those campaign promises about who he would nominate.
Lastly, principled conservative opposition to this Miers pick is not for fear that she won't produce the "conservative" results we like. We know that sometimes the Constitution says that the other side should win and sometimes it says that our side should win, and sometimes it is silent so the people get to decide for themselves. It is the GOP supporters of Miers who have been assuaged by baseless promises of the correct results. The opposition doesn't care about that. We want justices to interpret the constitution without the results in mind.
To be clear, opposition to her stems from her insufficient credentials and a lack of a clearly defined conservative judicial philosophy, which getting back to my first point, is what Bush promised us to get elected. If he never made those promises that would be a different story (and Gore or Kerry might be making these picks). But he did make those promises and this pick does not live up to that promise and if Ron Cass or anyone doesn't get that, then they should shut the hell up until they can figure it out.
Again, I think it needs to be said, that yes a president gets deference to his picks, but not when they are cronies with weak resumes (or crooks). But here, Bush purposefully made promises in two campaigns about the types of justices he would nominate for the Supreme Court, specifically naming Justices Scalia and Thomas on many occasions. He won, in large part because of those promises. Because of that specific promise that Bush knew was critical to winning our support, Bush limited his own discretion politically and his supporters have a right to be pissed if he breaks that promise, and are rightly pissed off now that he has done so with this Miers nomination.
