Supreme Court, Round II

Back in July, I wrote in my blog entry about the Supreme Court nomination of John Roberts, arguing that the Democrats should put up a fierce fight, which of course they largely did not do. I also cited a Republican friend of mine who claimed that Roberts, who was at the time "merely" a replacement for associate justice O'Connor, might later be nominated for Chief Justice, should a vacancy occur. I had not previously heard that suggestion from anyone else, so I posted it in order to pass on this little tip. Of course, I did not relish the thought of Roberts becoming Chief Justice, but I thought it an interesting idea that might reflect some thinking inside the G.O.P.

Since my friend's supposition has amazingly come true, I decided to query him again about the latest nomination of Harriet Miers to fill the O'Connor vacancy. His reading of this situation does not give me any comfort. He expressed amazement that some Democrats seem to be accepting the nomination. In his words: "I have come to believe she is a right wing religious Christian fundamentalist who will happily vote with Thomas and Scalia for the next 25 years." Hmmm...how do you like that! Well, I can't say that this friend talks to the President personally, but he does have a some connections to the Party at the state level and seems to have a fairly good pulse of the thinking within the GOP establishment. So take that for what it's worth.

I would like to shift the terms of the debate, however. The mainstream media usually frames Supreme Court nominations as battles over cultural wedge issues, most prominently abortion. Thankfully, they are not completely ignoring the crony angle on this one. But I wish the entire debate would shift towards a new terrain entirely: Executive Power!

To me, this nomination is about executive power. Can an unpopular sitting President appoint someone within his very inner-most circle, whom no one would have considered a qualified contender beforehand, to a lifetime position on the highest Court in the land? And it is more than that: This is about executive privilege over the long run too. You better believe that many cases will come before the Supreme Court about what the President can and can't get away with vis-a-vis the Congress (or We the People). Torturing detainees in Iraq and Guantanamo? Secret wiretapping powers for "national security"? All the documents still remain classified? Congress can't know who was on that Energy (or fill in the blank) Task Force? Unlimited war powers? At least one columnist has even suggested, plausibly in my opinion, that Bush may be in big legal trouble quite soon and may need close, trusted allies on the Court who will help him out. Of course, it takes five justices to render a decision, but don't forget that Bush did muster that exact number (including O'Connor!) when the Supreme Court selected him as President in 2000. With Miers, Bush can be certain that swing seat stays with him on matters of executive power and privilege.

Let me also remind everyone that this is the SECOND (at least) time when a major Bush II appointment has been made, in which the person leading the President's search team ends up recommending him/herself. Does anybody remember the first? Yes, that's right: Vice President Dick Cheney. I was always amazed that the media did not hit harder on that one when it happened. Talk about power hungry. Talk about sucking up to Bush and making him think you love him in order to get the job yourself. Just don't forget that Cheney effectively appointed HIMSELF vice president. And now, perhaps, Harriet Stier will get away with choosing herself as Supreme Court justice. Yes, I know, Bush makes the final decision, but does anyone in the room think he is not susceptible to influence from sycophants who tell him what he wants to hear (the major theme of how Bush has made his decisions)?

Okay, back to the main point: This nomination is all about personal loyalty to Bush, period. If the right-wing gets a fundamentalist abortion-killer, then that's just icing on the cake for them. At a time when everyone seems to be attacking Bush and G.O.P. power brokers are ducking for cover from scandal after scandal, this is about circling the wagons and appointing someone as close to home as possible. Someone who can defend Bush's imperious ways on the Court. Someone who, the White House chief of staff has claimed, has no agenda other than Bush's. No wonder even many Republicans are nervous.

This is about separation of powers. Some people might think "we could do worse", although given the nominee's closeness to Bush, it is hard to believe she is not pretty far-right conservative. But I say, that doesn't even really matter at this point. Do we want the Executive and Judicial branches to remain separate from each other, checking and balancing? Or do we want to allow Bush to round out the Supreme Court with one of his closest friends and allies, the same exact one who helped him cover up how he wiggled out of service in Vietnam? Do we want an independent legal mind, or do we want an agent of Executive Power?