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Bench Memos

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Franck & Miers



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I understand Matt’s point, as he’s written so eloquently about it many times. But, in truth, we already know what’s going on here, and that the president, despite a magnificent farm team from which to choose a solid nominee, chose otherwise. Miers was chosen for two reasons and two reasons alone: 1. she’s a she; 2. she’s a long-time Bush friend. Otherwise, there’s nothing to distinguish her from thousands of other lawyers. And holding a high post in the Bar, which the White House seems to be touting, is like holding a high position in any professional organization. But it reveals nothing about the nominee’s judicial philosophy. There are many top officials in the Bar who I wouldn’t trust to handle a fender-bender. Also, early in his term, the president singled out the Bar for its partisan agenda and excluded it from a formal role in judicial selection. The president said he would pick a candidate like Antonin Scalia or Clarence Thomas, and he did not. We all know of outstanding individuals who fit that bill, and they were once again passed over. Even David Souter had a more compelling resume that Miers.

The president and his advisors missed a truly historic opportunity to communicate with the American people about their government, the role of all three branches of the federal system, and the proper function of the judiciary. More importantly, they have failed to help the nation return to the equipoise of our constitutional system. And the current justices whose arrogance knows no bounds will be emboldened by this selection. They will see it as affirmation of their “extra-constitutionalism.” The president flinched. Some have compared have compared profligate spending to Franklin Roosevelt’s New Deal. But no one will accuse him of FDR’s boldness when it comes to the Supreme Court.

If people are disappointed, they have every reason to be.



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