Marshall vs Miers
By Thomas E. Brewton
web posted October 17, 2005
Unqualified, no judicial experience, just a political crony.
Miers? 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
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
Enter Stage Right -- http://www.enterstageright.com