Harriet Miers Supreme Court nomination

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Harriet E. Miers
Harriet E. Miers

On October 3, 2005, Harriet Miers (born August 10, 1945) was nominated for Associate Justice of the U.S. Supreme Court by President George W. Bush, to replace retiring Associate Justice Sandra Day O'Connor. She is the current White House Counsel, and was previously Bush's Deputy Chief of Staff.

Hearings before the United States Senate Judiciary Committee had been scheduled to begin on November 7, and members of the Republican leadership had stated before the nomination that they aimed to have the nominee confirmed before Thanksgiving (November 24). However, Miers withdrew her nomination on October 27, 2005.

Contents

[edit] Overview of the selection process

Bush with Miers during the announcement of her nomination
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Bush with Miers during the announcement of her nomination

On July 1, 2005, Sandra Day O'Connor announced her plan to retire as an Associate Justice of the U.S. Supreme Court, effective as of the date that her replacement was confirmed by the United States Senate. Bush appointed Miers as head of the search committee for candidates to replace O'Connor. On July 19, Bush announced that he had chosen John G. Roberts, Jr. as O'Connor's replacement. After William Rehnquist died of complications from thyroid cancer on September 3, Bush withdrew this nomination and renominated Roberts for Chief Justice, to which he was confirmed.

Meanwhile, Bush began considering Miers for the again-vacant O'Connor seat, saying he took into account suggestions by Senate Judiciary Committee Chairman Arlen Specter (R-Pennsylvania) and ranking Senator Patrick Leahy (D-Vermont) that Bush's nominees should be outside of the appellate court system [1]. First Lady Laura Bush and Senator Hillary Clinton had also both publicly expressed hope that he would nominate a woman [2].

On September 29, the internet domain justicemiers.com was registered by Progress for America, a non-profit organization closely associated with the Bush administration.

On October 3, Bush nominated Miers to succeed O'Connor. On October 27, however, Miers withdrew her nomination after overwhelming and consistent opposition from grassroots and leading members of President Bush's own party.

See also: Bush Supreme Court candidates

[edit] Nomination issues

Because little was known about Miers' position on divisive issues, and because she had no prior experience as a judge, her nomination was subject to debate on both sides. Many critics were concerned that her inner-circle relationship with the president and his staff could lead to conflicts of interests in court cases. Republican Senator Sam Brownback said on ABC News [3]: "There's precious little to go on and a deep concern that this would be a Souter-type candidate."

[edit] Positions on issues that might have come before the court

[edit] Abortion

The subject of Roe v. Wade, among other abortion-related Supreme Court precedents, is highly topical in this most recent nomination. This is in part because O'Connor had voted to overturn a number of state restrictions on abortion, often in narrowly divided 5-4 decisions.

As the confirmation process proceeded, more became known about Miers' personal and judicial views on abortion. In 1989, when Miers was running for the Dallas City Council, she filled out a survey for the anti-abortion group Texas United for Life[4]. The questionnaire sought to gauge candidates' feelings on the use of constitutional amendments or state laws to ban abortions in the event the Supreme Court overturned a 1973 ruling that established abortion rights. The questionnaire asked "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature." Miers answered "yes" to this question and all others listed.

Miers said in 1992 that she felt Supreme Court nominees should not be asked about how they would rule on abortion issues [5]. In 1993, when the American Bar Association (ABA) opted to take a stance in favor of abortion rights, Miers fought to have the full membership of the ABA vote on the topic: "If we were going to take a position on this divisive issue, the members should have been able to vote."

Many implied that since Miers is an Evangelical Christian (see biography), her own personal beliefs are likely to be pro-life. Bush himself implied that her religion was part of why he nominated her. However, it is not clear what impact, if any, her personal views would have had on her judicial rulings. The religious beliefs of nominees on abortion and other controversial social issues have been a significant part of confirmation hearings for nominees thought to have traditional religious beliefs. Some civil rights activists (notably the Catholic League for Civil and Religious Rights, Notre Dame law professor Charles Rice in the National Review, and the civil rights group the Center for Jewish Values and the right-wing anti-civil rights group Fidelis) [6] consider such interrogation by senators to be a violation of the constitutional prohibition of any religious tests for federal office.

Brownback, a member of the Judiciary Committee, said there was a "good chance" he would vote against Miers if she testified that Roe v. Wade was "settled law" [7].

[edit] Affirmative action

As President of the Texas State Bar, Miers supported affirmative action, going so far as to continue a quota system for women and ethnic minorities practicing law in the state. [8] Bob Dunn, the outgoing president of the organization, described Miers as "certainly one of the leaders" in supporting the quota system.

[edit] The right to bear arms

Miers included the "right to bear arms" in a list of "precious liberties" contained in a commentary she authored in 1992. - Texas Lawyer; July 27, 1992; pp. 10

[edit] Gay rights

Although Miers did not make her position clear on gay rights, she hinted at her views in answering a questionnaire submitted to her by a Texas gay rights group during her 1989 campaign for a Dallas City Council position. Miers indicated on the questionnaire that she supported civil rights for homosexuals, but opposed the repeal of the sodomy laws that were ultimately overturned by a 6-3 decision (with Justice O'Connor in the majority) in Lawrence v. Texas.

[edit] Balance of powers

As President of the Texas State Bar, Miers fought legislation that would curtail the power of the Texas Supreme Court to limit attorneys fees in tort lawsuits. Some commentators have asked whether this portends a lack of respect for the proper role of the courts. For example, conservative activist Mark Levin responded to this information by saying, "[i]f there is a bias toward judicial supremacy, it's best that we know this now, in advance of a confirmation vote." [9] Miers' rationale for withdrawing her nomination—that she feared the Senate's demand for information about her White House work would force a breach of Executive Branch secrecy—may indicate that she supported expansive presidential powers.[10]

[edit] Experience

Although Miers clerked for the Chief Judge of the United States District Court for the Northern District of Texas and worked in private practice, she never served as a judge. Miers also never argued a case before the Supreme Court.

41 of the 109 Supreme Court Justices appointed never served as a judge prior to their nomination [11]. Some examples during the 20th century include Louis Brandeis (appointed 1916), Felix Frankfurter (1939), William O. Douglas (1939), Robert Jackson (1941), Earl Warren (1953), Abe Fortas (1965), Lewis Powell (1972), and William Rehnquist (1972). The White House offered this to placate opposition, but offering the comparison to Fortas or particularly Warren further inflamed opposition among conservatives, who do not look upon either as a great exemplar of the kind of Supreme Court justice desired.

The White House has also noted that 10 of the 34 Justices appointed since 1933 were appointed from positions within the President's administration (as is the case with Miers.) These Justices include the aforementioned Powell, Warren, Frankfurter, and Douglas, as well as Arthur Goldberg and Tom C. Clark.

As a corporate litigator, Miers has modern-day experience defending corporations, including trying cases. However, it is unknown to what extent her private practice required her to address constitutional issues.

Senate minority leader Harry Reid (D-Nevada), who is said to have recommended Miers for the position, [12] [13][14][15], issued a statement:

In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court. [16]

[edit] Texas Lottery Commission

From 1995 to 2000, Miers chaired the Texas Lottery Commission (having been appointed by Bush when he was Governor of Texas). In 1997, the Commission hired Lawrence Littwin as the lottery's executive director. Five months later, however, he was fired. He brought suit over his firing, alleging that the lottery contractor, GTech Corporation, had influenced the Commission to fire him for improper reasons. GTech settled the case by paying him $300,000, with Littwin agreeing not to discuss the case or the settlement. [17]

After Miers' nomination to the Court, GTech, at the request of the Senate Judiciary Committee, released Littwin from the confidentiality provision. Conservative columnist Jerome Corsi has called Littwin's testimony "potentially explosive" because it could portray Miers as having been involved in an attempt to cover up the George W. Bush military service controversy. [18]

[edit] Education

Miers attended Southern Methodist University, where she received a bachelor's degree in mathematics (1967) and a Juris Doctor degree (1970).

[edit] Reactions to her nomination

Miers' nomination drew criticism from both political parties, including members of the president's Republican party. Principal complaints included:

  • That her credentials under objective standards were not sufficient to qualify her for the position.
  • That her nomination was the result of political cronyism. Because her legal experiences did not compare to those of other possible conservative candidates, like federal appellate judges Edith Jones, Priscilla Owen, and Janice Rogers Brown, it was deemed likely that President Bush nominated Miers for her personal loyalty to him rather than for her qualifications. She was frequently compared to Michael Brown, a Bush appointee alleged to have gotten his position based on loyalty rather than experience. Brown had resigned as chief of FEMA exactly three weeks prior to Miers' nomination, amidst nearly universal condemnation of how he and his agency handled Hurricane Katrina.
  • That there was no written record to demonstrate that she was either a strict constructionist or originalist in her approach to constitutional interpretation. There were qualms that she could be a moderate or liberal "sleeper" who would support abortion rights, affirmative action and gay rights if confirmed to a seat on the Supreme Court.

Notable conservative commentators expressing these or other concerns included newspaper columnists Pat Buchanan, Ann Coulter [19], Charles Krauthammer [20], William Kristol [21], Rush Limbaugh, Ramesh Ponnuru, and George Will [22]; former Bush speechwriter David Frum; and constitutional scholar Randy Barnett. [23] Finally, Robert Bork, one of the premier advocates of originalism and a Supreme Court nominee under President Reagan who was eventually rejected by the Senate, proclaimed that the nomination was "a disaster on every level," and a "slap in the face" to conservatives [24].

In addition to the initial positive comments from Democrat Senator Harry Reid, other prominent Republican conservatives were supportive of Miers, including former U.S. House Speaker Newt Gingrich [25], Focus on the Family founder James Dobson (who later suggested he would have recanted his endorsement if she had not withdrawn), Senator John Cornyn of Texas [26], columnist Mark Steyn [27], and former Indiana Senator Dan Coats, [28] who became the Bush administration's appointed guide for Miers through the confirmation process.

A comprehensive list from the Republican side on the pros and cons of the Miers nomination is available at RightSideRedux.com [29].

Robert Schenck had access to Harriet Miers during her brief Supreme Court nomination and took exception that she was attending St. John's Episcopal Church, Washington, D.C. rather than a local chapter of the more fundamentalist Church of Christ as she had done back in Texas.

[edit] Additional documents

Additional disclosure forms are available via the AP:

  • A financial disclosure form dated October 17, 2005. [30]
  • A financial statement outlining Miers' net worth. [31]
  • The full, 57-page questionnaire submitted by Miers to the Senate as part of the vetting process. [32]

[edit] Withdrawal

Miers requested to withdraw her nomination on October 27, 2005, and President Bush acceded to her wishes.[33]

Bush and Miers attributed her withdrawal to requests from the Judiciary Committee for the release of internal White House documents that the administration has insisted were protected by executive privilege. Both Republican and Democratic senators denied that they were attempting to obtain privileged documents.[34]Most observers instead believed this rationale was a way for the Bush administration to pull her nomination and still "save face," by avoiding a direct acknowledgement of the lack of support for her nomination. The claim of executive privilege was in fact previously recommended as an "exit strategy" by numerous commentators, such as Charles Krauthammer,[35] and reports indicated that White House advisors had considered that as a tactic.[36]

Samuel Alito, a federal judge on the U.S. Court of Appeals for the Third Circuit, was nominated in her stead only four days after her withdrawal.

[edit] External links

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