Miers / White

[RJLipkin at aol.com]

In a message dated 10/3/2005 6:52:11 PM Eastern Standard Time,  
SLevinson at law.utexas.edu writes:

Apropos  the discussion about who has the last word, is it
not clear that this  particular president is applying a religious test
for office that would be  patently unconstitutional if it were
formalized?  So has George Bush  in effect rendered irrelevant Article VI
and the No Test Oath  Clause? 
        Sorry for being more  interested in the last word issue, then in the 
Miers nomination, but Sandy  raised it, and so let me respond. Even if Bush is 
applying a religious test, and  I have no idea whether he is doing so even 
unconsciously, but for argument sake  let us assume he is, the point is that it 
is not a formalized test or  even probably a de facto test. So George Bush is 
not "in  effect render[ing] irrelevant Art. VI and the No Test Oath clause." 
Nor would he  being violating equal protection if he found he was more 
comfortable hiring  qualified Latino or Latinas as legal counsels rather than whites 
just  so long as he didn't violate Washington v. Davis and so forth.  Moreover, 
although I don't know who would have standing, if his choice of Miers  was 
violative of the No Test Oath, and challenged, the Court would be the final  
arbiter.
 
        The last say argument must  confront not only areas where in effect 
other branches of government have the  last say. But rather who would prevail 
if those branches were challenged in  Court. Only a more pervasive Jacksonian 
disdain (and the courage to act upon it)  of the courts would suggest that the 
Court might have the "last say" and that  turn out to be a joke because the 
other branches ignore it. The  paradigmatic context for determining the last say 
is to determine what systemic  results would follow when the elected branches 
challenged the Court's decision  in a particular case. Not just that other 
branches are thought to be the final  arbiter of a particular constitutional 
controversy.  If the Court can  intrude itself in Bush v. Gore, it can intrude 
itself in any  controversy, or so I would think.
 
Bobby
 
Robert Justin Lipkin
Widener University School of Law
Delaware
 
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