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The Miers Nomination: Republican Senators Have the Power to Address Their Fears that She Won't Be Reliably Conservative


Friday, Oct. 14, 2005

As has been widely reported, many conservatives are expressing concern that Harriet Miers -- President Bush's nominee to replace Justice Sandra Day O'Connor -- will not, if confirmed, be a reliable conservative presence on the Court. These apprehensions have been voiced both by Senators, like Sam Brownback (R-Kan.) who sits on the Judiciary Committee, and by influential analysts, such as George Will and William Kristol.

In this column, I will explain why I think those fears are probably overstated, and why, if those concerns in fact prove to be well-founded, the conservatives in the Senate will, in significant measure, have themselves to blame.

Will Miers Be a True and Solid Conservative Justice? Probably, Yes

Of course, it is impossible to predict completely how anyone will react to the power and pressure of being an Associate Justice; the responsibility at the Court is simply different in kind from that associated with any other job a Justice might have held before (except, perhaps, the awesome job of President, held by William Howard Taft before he served on the Court).

Yet, while prediction can't be perfect, it is far from futile. In fact, when modern Presidents have spent a lot of time and energy trying to pick judges and Justices based on the apparent ideological tendencies of the judicial candidates, these Presidents have succeeded in the main.

For example, people like to talk about how Justices O'Connor and Anthony Kennedy haven't been as conservative as President Reagan (who appointed them) might have liked. But the reality is that - in the big historical and ideological picture - both O'Connor and Kennedy clearly do lie on the conservative side of the legal ideological spectrum.

And although Justice John Paul Stevens and Justice David Souter - also picked by Republican Presidents - may be moderate to liberal by historical standards, the Presidents who appointed each of them (Ford and Bush the elder) do not seem to have spent a lot of time and care ensuring their picks would be conservative.

So how is a Justice Miers likely to turn out? I don't have the information to fully answer that. But the President surely does. You don't get to know someone as your personal lawyer and advisor for over fifteen years without getting a sense of her inherent legal conservatism or lack thereof.

To put my point another way, Ms. Miers is not so much a blank slate, as a slate that has been viewed by only a relatively small number of people. And President Bush is one of those lucky few. So when the President tries to calm jittery conservatives by saying, in effect, "trust me," he is not saying "trust me because I'm better than you at knowing what a conservative is," but rather, "trust me because I've got a much better basis for evaluation of this person than you do."

In this regard, the Miers pick highlights one problematic feature of the nomination of "stealth" candidates - that is, candidates who lack a well-developed paper trail documenting their own views: Such nominations will, in today's political climate, invariably tend to concentrate power in the White House, because the President is able to collect information -- in private and over a number of years -- that the Senate and the American people will never be able to see and consider.

This was true of Chief Justice John Roberts (who had worked in, and presumably shared thoughts with, Republican White Houses and Departments of Justice for years and years). It is even more true of Ms. Miers.

Experience and Competence Questions: Why These Concerns May Be Overstated

What about complaints raised in some conservative quarters that Ms. Miers does not have great familiarity with the complicated federal constitutional and statutory fare of the Supreme Court, and that she won't be able to accomplish a lot because she has so much to absorb?

I have a few thoughts about this. First, as sophisticated and nuanced as Supreme Court doctrine is, Supreme Court decisions are not - to quote Joey Tribbiani of Friends - "rocket surgery." Ms. Miers is obviously a smart and able lawyer - she did very well in law school, she clerked for a federal court judge, had success as a litigator and bar leader, and has vetted a lot of federal judicial candidates for the President in the past few years.

Yes, there will be a somewhat sharp learning curve for her. But if we look at the long term - as we should for any appointment likely to last a couple of decades or more - the fact that Ms. Miers's resume is not in the league of Chief Justice Roberts's doesn't mean everything.

(I should note here, as well, that the opportunities for women in law school and in the legal profession 35 years ago, when Ms. Miers was starting her career, were very different than they are today. And women back then -- and still today to some extent -- may have been pressured to make certain decisions affecting their careers on the basis of family and other personal considerations from which men are largely immune.)

Moreover, to be an effective and outcome-influential Justice, one need not take the intellectual lead on the Court. To reach a result, you need five votes for one theory or approach - not five interesting and impressive theories or approaches. There are many successful Justices who were part of important outcome-determinative coalitions on the Court who didn't themselves author a huge number of pathbreaking, or even noteworthy, decisions. Justices Thurgood Marshall and Byron White, for example, were integral parts of important majorities in many lines of cases for decades, but they themselves did not pen that many pioneering majority opinions for the Court.

For these reasons, and although prediction is always very dicey, I won't be surprised if a Justice Miers turns out to be as or more conservative than Chief Justice Roberts, in the ways that might matter most to President Bush -- skepticism of abortion rights, and embrace of broad executive authority to unilaterally execute policies with any plausible connection to foreign affairs.

If Conservative Critics Do Turn Out to Be Right, Who's to Blame?

In any event, if the fears of conservative skeptics do prove prescient - that is, if Justice Miers does end up voting like Justice Souter - they have largely themselves to blame.

Why? Because the conservative Republicans in the Senate are the ones -- right now, at least - who most vigorously defend a nominee's prerogative in the Senate confirmation hearings not to answer substantive questions about his/her tentative views of past Supreme Court cases and the issues they raise. (In the past, some liberal Democrats have also defended a nominee's right not to answer, which shows only that there is more than enough stupidity and hypocrisy for both parties to share. In this area, it is best to stop citing to Party "precedents," and reclaim a constitutional vision in which the Senate plays a more meaningful role in confirmation.)

If the Senate - currently run by conservatives - adopted a stance that nominees had a duty to answer questions substantively and forthrightly (though without making promises of future voting behavior), then there could simply be no such thing as a "stealth" candidate. During the hearings, if not before, each nominee's tentative views on the great legal issues of the day would be out there for all American Senators and citizens to see and evaluate.

As I have written in a series of earlier columns, there are to my mind no serious ethical, constitutional or precedential impediments to the Senate taking such a principled position requiring substantive candor. And the counterarguments raised by those who would defend a privilege for the nominee to keep mum are, to be blunt, flimsy, makeweight, and/or disingenuous.

A World Where Senators Actually Learned About Nominees in Confirmation Hearings

What would happen today if a nominee actually had to try to be forthcoming in the Senate - and did more than simply survive the hearing intact by deflecting rather than answering questions?

In those circumstances, President Bush would have no political choice but to nominate an avowed and confirmed conservative for O'Connor's spot on the Court. If openness on the part of the nominee were required, President Bush would have to choose between an open liberal, an open moderate, or an open conservative. And given such a choice, obviously he would have to opt for the latter of the three.

Would there be the votes in the Senate to confirm such an openly conservative jurist? I think there would, even though such confirmation might be contentious and close. The Republicans have 55 votes in the Senate - and only three (from New England) of the 55 seem to be moderate enough to abandon the President if push came to shove. It is worth noting here that virtually no Republican Senators have voted against any of President Bush's nominees to all of the federal courts over the past five years.

It also bears mention that even Robert Bork lost only six Republican Senatorial votes (one of which was Arlen Specter) in 1987, and the Senate had far more moderate Republicans then than it does now. In other words, the proximate cause of Robert Bork's failed nomination was not Republican defection, but rather that the Democrats then controlled the Senate.

What about the possibility of a Democratic filibuster if President Bush were to appoint an openly conservative thinker? The reality, as I have discussed in an earlier essay, is that 51 Senators (or perhaps 50 plus the Vice-President) can undo or redo the filibuster rules any time they want. And a President's campaigning to the American people that his Supreme Court pick, who has been completely forthcoming in the hearings, deserves an up-or-down vote - one way or another -- has some powerful rhetorical appeal.

Again, any such conservative victory might be a bit bloody. But I think the result would not be in too much doubt, given the numbers, and notwithstanding the President's other political problems. So if conservative Senators really want a conservative Justice, they need only insist than nominees answer specific questions about current views of past (but still contentious) watershed cases. If they really want to know what Miers currently thinks of Roe, for instance, they ought to simply ask - and demand an answer.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author along with William Cohen and Jonathan Varat of a constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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