Print

Email story

Comment

Email editor

Precedent doesn't bode well for Miers

By MARTIN DYCKMAN
Published October 16, 2005

If George W. Bush were faithful to "original intent," would his nationwide search for a Supreme Court nominee have ended where it began: at the desk of his personal lawyer?

It is hard to read his mind. Not so Alexander Hamilton's. The great original Federalist would have said, "No."

The Constitution, it is true, does not require that a justice even be a lawyer, let alone a conspicuously brilliant one. But that's because the framers took it for granted.

". . . (T)here can be but few men in the society who will have sufficient skill in the laws to qualify them for the station of judges," Hamilton wrote in Federalist 78. "And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge."

In Federalist 76, Hamilton remarked that Senate confirmation of judges and other high officials "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 connections, from personal attachment, or from a view to popularity."

Hamilton might not consider Harriet Miers unfit, but he would have been intensely suspicious of a president's motives for nominating anyone so close to him to a lifetime seat on the Supreme Court. Only his family could be more personally attached to Bush than his personal lawyer, whose selection, however clumsily managed, was meant to be popular with the religious right.

There's a precedent for a president appointing his personal lawyer to the court. Lyndon Johnson was at the height of his power, and Senate Democrats at the height of theirs, when he chose Abe Fortas in 1965. Johnson had considered no one else for the vacancy he created by sending Arthur Goldberg to the United Nations. The Senate confirmed Fortas by voice vote. Only three Republican senators spoke in opposition.

But there are at least seven points of comparison with which today's Republicans can hardly be comfortable.

Unlike Miers, Fortas was a renowned constitutional scholar who had argued and won major cases before the court. They included Gideon vs. Wainwright, in which the court had appointed Fortas to represent the Florida prisoner asserting the right of indigent criminal defendants to public counsel.

Like Miers, Fortas had helped Johnson seal a questionable election: the 87-vote Texas Senate primary in 1948 that earned him the nickname, "Landslide Lyndon." Fortas' brilliant strategy resulted in Justice Hugo Black stopping a federal district judge who was about to upset the Texas canvass. That was quite the opposite of the Supreme Court's interference with the Florida vote count 52 years later.

Unlike Miers, Fortas had never joined the White House staff. His contacts, however close and frequent, were not on a daily basis.

As Miers is bound to, Fortas refused to discuss his private advice to Johnson. His opponents made an issue of that, especially after Johnson tried to promote him to chief justice. That is a particularly inconvenient precedent for today's Republicans.

The attempt to put Fortas in the center chair Earl Warren was vacating evoked the first modern-day filibuster against a Supreme Court nominee. That was by Republicans, another example they would prefer that everyone forget.

Johnson was a seriously weakened president by then. The cause of his grief was an unpopular and apparently unwinnable war.

Unlike Miers, it is hoped, Fortas was unethical. He continued to advise Johnson personally while he was on the court. Their friendship blinded them to the impropriety. He also took money under circumstances that ultimately destroyed his career and reputation. He withdrew his nomination for chief justice after the Republicans found that he had taken $14,000 from wealthy friends and former clients to conduct summer seminars at a university. He resigned from the court in 1969, under threat of impeachment, after the Nixon administration helped LIFE magazine uncover a $20,000-a-year retainer he had taken from the family foundation of Louis Wolfson, a Florida industrialist under investigation by the Securities and Exchange Commission who later went to prison for stock manipulation. Fortas had returned the money but the damage was irreparable.

History regards the Fortas affair as the foundation for all subsequent judicial confirmation struggles. They didn't begin with Robert Bork.

But history must not be this president's best subject.

Martin Dyckman's e-mail address is madyckman@verizon.net

[Last modified October 14, 2005, 21:16:03]