According to Hamilton, Bush should be ‘ashamed and afraid’

October 4, 2005

From time to time, the Federalist Papers offer unique insight into our republican ideals. As of yesterday, they also offer insight into the kind of mistake Bush made in nominating Harriet Miers to the Supreme Court.

Randy Barnett, a law professor at Boston University, wrote an item for the Wall Street Journal today (brought to my attention by my friend Eugene) highlighting Alexander Hamilton’s thoughts on the presidential nominating process in Federalist No. 76:

“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.” [The italics are Barnett’s.]

How many ways does Bush’s nomination conflict with the principles of the man who helped design the nominating process? Let’s see, Miers is hardly a “check upon a spirit of favoritism”; she has a “personal attachment” to Bush; and she has very little merit outside her “personal alliance” to the president. As Barnett put, “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.”

Given her lack of experience, does anyone doubt that Ms. Miers’s only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser? Of course, Hamilton also thought that the existence of Senate confirmation would deter the nomination of cronies:

“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.”

Hamilton probably assumed that presidents would be capable of feeling embarrassment and that lawmakers would take their role as a check on presidential power seriously.

What a silly idealist.

Thank you for this post. More often than not right-wing nuts fall back to the Federalist Papers when they start losing constitutional arguments. I, for one, am looking forward to throwing this in their face.

  • I shudder to think of what the Founding Fathers would make of someone like W. We’ve had a few klunkers (Pierce, Buchanan, Nixon), but this guy is a true embarrassment.

  • Ah, yes. The silly idealist whom John Adams called “the bastard brat of a Scotch peddlar” “born on a speck more obscure than Corsica” – that silly idealist.

    It’s hard to even imagine what any of the Founding Fathers would have thought of George W. Bush. Laughable? Beneath contempt? As to Ms. Miers, who regards Dumbya as the most intelligent man she’s ever known (?!), she seems to have no greater claim on the post of Supreme Court Justice than having been the Bush Crime Family’s mouthpiece.

  • Bush vigorously defends his illegal war, his mistreatment of prisoners, his abridgement of citizens’ rights, his tax cuts for the wealthy, his callousness to those in need, and now this, his latest appointment of an unqualified crony to a high position, and the opposition waits for poll results before drafting their carefully worded statements of concern. History has shown us this pattern of decline before–a society is founded on high principles by people of wisdom, courage, honor, and compassion. But over time, people who are ignorant, cowardly, dishonest, and selfish come to power, and the principles are betrayed and eventually forgotten. There’s little hope for a society that has no one willing and able to challenge and overcome such people and restore its principles. Have we reached that point late in the life of a society that Yeats was writing about when he said “the best lack all convictions, while the worst are full of passionate intensity”?

  • I seem to recall Hamilton was big on the idea of an American aristocracy leading the country. I can’t imagine he’d be too thrilled to see that said aristocracy’s judgment had led to Bush the Younger as President.

  • It seems that Hamilton’s concept only works where the branches of the government are actual checks and balances against the other in that the Senate acts as a body, not as an extension of the Executive branch. Instead of dividing the totempole horizontally for each branch, it is not split vertically along the partyline.

  • If Alexander Hamilton is now an idealist, then we are well and truly fucked.

    Hamilton’s genius was his tremendous misanthropy. He trusted no-one. The Constitution he crafted was a monument to cynicism and explicitly acknowledged and accounted for the selfishness and wickedness of men. Its system of checks and balances were prompted by a profound cynicism.

    And this man, in 2005, is now viewed as an *idealist*? That’s astonishing.

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