Randy Barnett argues
that the Miers nomination is exactly what Hamilton, in Federalist #76
, says the Senate's power to block a nomination was designed to prevent. He quotes Hamilton (the italics are Barnett's):
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.
He goes on to argue that "Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton's description any more closely". I beg to differ. I think Barnett is missing Hamilton's point. He says that "the core purpose of Senate confirmation of presidential nominees is to screen out the appointment of 'cronies', which Merriam-Webster defines
as 'a close friend especially of long standing'". But as I read Hamilton, I see his purpose as "to prevent the appointment of unfit characters
...candidates who had no other merit
than" being the president's crony.
Qualified cronies, I don't think Hamilton, or the other framers, would have had much problem with. And Miers is clearly qualified. As Barnett himself says, "I imagine she is an intelligent and able lawyer. To hold down the spot of White House counsel she must be that and more." He goes on to say that she "would be well qualified for a seat on a court of appeals". So she is competent to be a judge, just, in Barnett's opinion, not a Supreme Court judge. But I doubt that that's what any of the framers had in mind as far as qualifications.
The other thing the framers were afraid of, obviously, was that the president would nominate someone who was qualified, but was not of good character. In other words, a crook. Abe Fortas, for instance. Barnett says that "the Senate once successfully resisted President Lyndon Johnson's attempt to nominate his own highly able crony, Abe Fortas, to be chief justice", but as I understand it the problem with Fortas was not that he was Johnson's crony, but that there were serious (and subsequently confirmed) allegations against his integrity. There have been plenty of presidential cronies appointed before, with the senate's consent, and I see no reason why Fortas would not have been able to join their ranks, had the senate been convinced of his honesty. And that is indeed what senate confirmations are for. I'm confident that if Miers had any obvious skeletons in her closet (no, I'm not going there) Bush would not have nominated her, since he would know that it would be bound to come out and cause her not to be confirmed. As Barnett quotes Hamilton, "the possibility of rejection would be a strong motive to care in proposing". So Miers is a fit character, well qualified to be a judge, and that is all that Hamilton is arguing for in Federalist #76.
UPDATE: Beldar made essentially the same points two days ago. I've been offline since Monday evening, and am only beginning to catch up on what's been going on in the world while I wasn't looking.