Getting to a Nominee’s View of the Constitution

Harriet Miers has submitted her response to the questionnaire of the Senate Judiciary Committee. Her response reveals her to be a competent, ambitious, corporate functionary. She rose through the ranks to lead her law firm and the Texas Bar while representing big corporations (that’s what big law firms do) and participating in every conceivable community/legal/charitable/do-good organization in sight. No wonder she didn’t have much of a personal life. She was out networking, connecting, schmoozing and getting ahead. Like Woody Allen, she showed the value of “showing up”. Even so, she ends up with a fraction of the net worth of John Roberts. Maybe she should have come to Washington sooner. John Roberts’s questionnaire revealed precious little in community involvement, in fact virtually none. He was a legal eagle with little time for the rest of life.

There are different roads to the Supreme Court then. But the end result? Both nominees answered a question about judicial activism. Though phrased differently, they said the same thing and often used the same words like “humility” and “limited”. But it is clear that each wrote their own response. Roberts quotes Felix Frankfurter, Miers cites her mentor, Federal District Judge Joe Estes. Roberts quotes Chief Justice John Marshall, Miers cites her experience on the Dallas City Council. The end result is the same—judicial restraint is a good thing. The legal experience revealed shows a gulf as wide as the Atlantic. Roberts is a major leaguer; Miers is minor league all the way.

But does life experience give us hope that Miers will understand the personal side of the cases she will decide? Amidst all the corporate and legal memberships she has had over the years, Miers lists being Chair of the Advisory Committee of Girls, Inc. (1987), a member of the Progressive Voters League (1987) and a Board member of the YWCA and Goodwill Industries (no dates given), and a member of Meals on Wheels (no dates given). Was this social conscience jettisoned as she entered politics or does she still have it, though hidden?

In 1989 Miers filled out a form for the Texans United for Life. She scored 100%, or by my scoring 0%. She supported banning abortion except to save the mother’s life, and she stated that she would appear at press conferences to promote the goals of the pro-life movement and that she would participate in pro-life rallies and special events.

Is Harriet Miers the next Lewis Powell—a corporate lawyer, bar association president, a seeker of compromise and a person with a social conscience? Or is she an ideologue or an unprincipled politico who has cast aside for political expediency or in a true conversion whatever experience she might have had with the underprivileged who need more than the rest of us the protection of the law?

The Senate Judiciary Committee failed utterly to find out what kind of person John Roberts was or what his constitutional beliefs really were. It was not a fair fight. He was smarter in his answers than they were in their questions. I am sure that Harriet Miers will give similar responses to questions about a right to privacy and, despite conflicting press reports, seems to have already done so to Senator Specter.

So, it is time for a new tack. Let’s ask Miers something new. Let’s see what she is made of constitutionally. Rather than go over the same privacy questions which will elicit nothing of value, how about going through the 1988 Report to the Attorney General: “The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation.” This Report lays out 15 vital constitutional issues facing the court. Now clearly the nominee will not answer direct questions on probable cases, but the report gives a roadmap on possible different methods of constitutional analysis on such issues as equal protection, due process, the first amendment, and federalism. She should be asked which method of analysis she supports and why.

The issue of federalism perhaps provides the most fruitful road for probing questions. Justice Goldberg in his concurring opinion in Griswold cited the Ninth Amendment as a basis for his opinion that there were rights not specifically enumerated in the Bill of Rights that were protected from federal interference. In other words, the people had certain natural rights that could not be infringed. The Ninth Amendment has undergone numerous incarnations over the years and there is fresh scholarship on what its original meaning was, whether it was a rule of interpretation or a source of rights. Miers should be asked about natural law and what she thinks the Ninth Amendment means. Are there natural rights or not? How does a judge discern them? Are the states as well as the federal government prohibited from interfering with them? These are the new questions that Harriet Miers should be asked. Maybe then we’ll learn what is behind the façade.

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