Senators must tell Miers: No answers, no confirmation

October 06, 2005|By ERWIN CHEMERINSKY

Harriet Miers is truly a stealth candidate for the Supreme Court, and senators must insist that unless she answers detailed questions about her views, she will not be confirmed.

Unlike Chief Justice John G. Roberts Jr., who authored dozens of briefs and hundreds of memos on crucial issues, Ms. Miers apparently has little record on constitutional questions. The Senate cannot confirm Ms. Miers on blind faith that she will not be a vote to radically change the law in countless areas in which Justice Sandra Day O'Connor has been the crucial fifth vote.

The importance of this Supreme Court seat cannot be overstated. Chief Justice Roberts' replacing William H. Rehnquist is unlikely to change the direction of the court. By all accounts, Chief Justice Roberts' views are likely close to the positions that Chief Justice Rehnquist took.

But Justice O'Connor has been the fifth vote for the majority in cases upholding abortion rights, allowing affirmative action, striking down death sentences for ineffective assistance of counsel, enforcing separation of church and state, providing remedies for gender discrimination and permitting regulation of contributions in election campaigns. Ms. Miers has the potential to change the law in all of these areas.

She apparently has no record on these issues. I could not find a single law review article that she wrote. Nor could I locate any Supreme Court briefs that she authored. Unlike every other nominee for nearly 35 years, she has not served as a judge and so has no judicial opinions to scrutinize. She spent her career in private practice in Texas before being the state lottery commissioner and then going to work in the Bush White House.

President Bush undoubtedly named her, in part, precisely because of her lack of a paper trail. But senators cannot confirm her without knowing her views on how the Constitution should be interpreted and on the key issues that likely will confront her as a justice.

I have no doubt that she will try to follow the example set by Chief Justice Roberts and refuse to answer all questions about her views. Senators must make clear from the outset that they will not accept this approach, especially from a nominee about whom so little is known and who has the potential to so dramatically change constitutional law.

Senators need to explain clearly that there is no justifiable reason for refusing to answer questions about constitutional issues. Ms. Miers may try, as did Justice Clarence Thomas, to say that she never has thought about abortion and whether Roe vs. Wade was rightly decided. But that is not a credible answer. Surely, Ms. Miers has views on this question and others, such as whether affirmative action is ever justified and whether there should be a wall that separates church and state.

Ms. Miers may try, as did Chief Justice Roberts, to say that it would be inappropriate to answer questions about matters that could come before her because it would prevent her from being perceived as impartial. But this is just wrong. Everyone knows the views of John Paul Stevens or Antonin Scalia on abortion, but no one says they are too biased to sit when abortion cases come before the court. All justices have views on the issues before them; being ignorant of these views doesn't make the justice more impartial.

Three years ago, the Supreme Court declared unconstitutional a Minnesota law that prohibited candidates for elected state judicial office from stating their views on disputed legal or political issues. The court emphatically rejected the claim that knowing a judge's views in any way undermines impartiality. The same is as true for appointed federal judges as for elected state judges.

The reality is that a person's views determine how he or she will vote as a justice on the issues where the Constitution's language is vague and where justices must decide what interests are sufficiently important to allow the government to infringe upon liberties.

The framers of the Constitution believed deeply in checks and balances and thus intentionally did not make selecting Supreme Court justices the sole prerogative of the president. The Senate has an equal and independent role to play. Now, with so much at stake, the senators must fulfill their constitutional responsibility and make clear that without detailed answers from Ms. Miers, they will not confirm her for a lifetime appointment to the nation's highest court.

Erwin Chemerinsky is the Alston and Bird professor of law and political science at Duke University.

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