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Marshall vs Miers

By Thomas E. Brewton
web posted October 17, 2005

Unqualified, no judicial experience, just a political crony.

John MarshallMiers? No, John Marshall, whose name generally is preceded by the adjective great, some describing him as the greatest figure in the history of American law. Marshall, of course, was the Chief Justice who first enunciated the doctrine, in Marbury v. Madison, that the Federal courts have the power to nullify acts of Congress or the President that contravene the Constitution. Most legal scholars credit Marshall with having established the basic framework of Constitutional jurisprudence.

But at the time of his appointment, as with Harriet Miers, Marshall was viewed as anything but a qualified jurist.

President John Adams's Federalist party was sharply rejected in the election of 1800 that swept Thomas Jefferson into office. In those days, the newly elected President was not sworn into office until the April following the previous year's election. In February of 1801, just two months before Jefferson was to take office, President Adams appointed John Marshall to serve as Chief Justice of the Supreme Court.

The press howled that the appointment was nothing more than a political power grab, a last ditch effort by the Federalist party to hang onto power via a lifetime appointment to the judiciary that might perpetuate their political policies so recently repudiated. Marshall was denounced as an incompetent hack whose only claim was that of a political crony who was being rewarded for his loyalty to President Adams.

Marshall had no formal education. The only book he is known to have studied was a volume of Pope's poems and essays. His law education consisted of attending a course of lectures between May and June of 1780, given by Chancellor George Wythe at the College of William and Mary. Thereafter he became active in Virginia politics and was elected to Congress in 1799. There he defended President Adams against political attacks, and the President reciprocated by asking Marshall to assume various government posts, the only one of which he accepted was that of Secretary of State in 1800. Less than a year later he was appointed as Chief Justice.

No one ever described Chief Justice Marshall as a legal scholar, deeply learned in the history and intricacies of the law. His colleague Justice Joseph Story said that Marshall's bias was "to general principles and comprehensive views, rather than to technical and recondite learning."

This is not to say that Harriet Miers will be another John Marshall. It is to say, however, that deep immersion in the socialist cesspools of Harvard or Yale law schools ought to be viewed more as a disqualification than a recommendation for responsible office. The fact that Ms. Miers attended Southern Methodist University at a time when it still was a school influenced by religious principles and the fact that she is a born-again Christian suggest the possibility that she, like Marshall, may be influenced by sound general principles.

Why then is Harriet Miers subject to such calumny from both socialists and conservatives?

We know the answer, of course, with regard to the liberal-socialists. No one but an atheistic socialist can be regarded as qualified in their eyes.

With respect to the conservatives, one major fact certainly is that they have been spoiling for a fight since liberal Republicans joined forces with their socialist colleagues from the Democratic side of the aisle to engineer the deal that forestalled the so-called nuclear option to cut off filibusters of the President's nominees. It's easy to sympathize with those longing for the opportunity to give a figurative punch in the nose to odious persons like Senators Ted Kennedy, Charles Schumer, Patrick Leahy, Harry Reid, and Hillary Rodham Clinton.

But let's ask ourselves realistically whether a fracas precipitated by an in-your-face nomination of a conservative with strong and well known commitments to hot-button issues would not simply have led to yet another ignominious defeat by the legions of Darth Vader. At no time in recent memory has the Republican Senate leadership evidenced any notable parliamentary, tactical, or PR skills. The Democrats have out-maneuvered them at every turn.

Maybe President Bush simply looked at the facts in the cold light of day and concluded that the nation's interests would be better served by appointing someone who is both confirmable and committed to sound general principles. Maybe he concluded that reliance on Senators like Arlen Specter and Bill Frist was as likely to be successful as buying a lottery ticket.

The writer's weblog is The View From 1776. Email comments to viewfrom1776@thomasbrewton.com.

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