Miers Asked to Provide More Detail on Questions

Supreme Court nominee Harriet Miers was asked by the senior Republican and Democrat on the Senate Judiciary Committee to provide more substantial answers to several questions on her questionnaire.

Miers Is Asked to Redo Reply to Questions (NYT)

The Supreme Court nomination of Harriet E. Miers suffered another setback on Wednesday when the Republican and Democratic leaders of the Senate Judiciary Committee asked her to resubmit parts of her judicial questionnaire, saying various members had found her responses “inadequate,” “insufficient” and “insulting.” Senators Arlen Specter of Pennsylvania, the committee chairman, and Patrick J. Leahy of Vermont, the senior Democrat, sent Ms. Miers a letter faulting what they called incomplete responses about her legal career, her work in the White House, her potential conflicts on cases involving the administration and the suspension of her license by the District of Columbia Bar. Their letter also asked her to provide detailed accounts of private reassurances about her views given by the White House or its allies to some conservative supporters who have been anxious about her positions on abortion and other social issues.

The letter asked Ms. Miers to respond within a week. Mr. Specter said he had scheduled hearings on her confirmation to begin Nov. 7, overruling Democratic objections that they did not have enough information to evaluate her because of her scant record on constitutional issues before joining the White House. Both Mr. Specter and Mr. Leahy said they would not set any deadline for the conclusion of the hearings. “If the questions are not answered or their answer is incomplete, as they have been, then it’s going to be a long hearing indeed,” Mr. Leahy said.

Veteran senators and aides said they could not recall another occasion when the committee had sent back a nominee’s answers to a questionnaire because they were incomplete. Former Senator Daniel R. Coats of Indiana, the administration’s appointed guide for Ms. Miers on Capitol Hill, defended her answers in the Senate questionnaire as a work in progress. “From the very first, Harriet Miers told Senator Specter that she had years of files to go through and that there would likely have to be a follow-up on some of the questions,” Mr. Coats said. “She’s more than willing to diligently provide the information as soon as possible. As you know, it’s mountains of information.”

These questionnaires are often fishing expeditions. Given that nominees have, at least since the Bork hearings, been instructed by the appointing administration to be as vague as possible, they are unlikely to elicit much in the way of useful information. An example:

Some of the new questions may be politically challenging for Ms. Miers and the White House. One inquiry in the original questionnaire pointedly asked her about reports that in conference calls with conservative supporters the administration and its allies had offered private assurances about her views on abortion and other matters. The first part of the question asked if she had made any statement to anyone about how she might rule from the bench, and a second part requested information about “all communications by the Bush administration or individuals acting on behalf of the administration to any individuals or interest groups with respect to how you would rule.” Ms. Miers’s one-word answer to both was “No.”

The senators repeated the inquiry in their new letter. “This would include any and all communications, including those about which there have been recent press reports, in which friends and supporters of yours, among others, were said to have been asked by the White House to assure certain individuals about your views,” they wrote. “If you do not have firsthand knowledge of these communications, please endeavor to determine what sorts of communications, if any, took place.”

While I have not been privy to these communications, my strong hunch is that “No” was the correct, if infuriating, answer. Quite likely, she gave answers to the effect that her private views on abortion are separate from her view of what the Constitution says and that, since she may have to rule on the issue if confirmed, she could not discuss her legal view. As to the issue of what various people connected to the White House said in private conversations, she is neither in a position to know nor is it her place to find out. Indeed, I am not sure it is any of the Senate’s business.

I have serious misgivings about this nomination and, unless something happens in the hearings to massively raise my impression of her as a legal mind, I believe she should be rejected and the president asked to try again with someone from the upper tier of the conservative legal team (and preferably, a younger one to boot). Nonetheless, this business about incomplete questionnaires is silly.

Update: Steven Taylor (here and here) sums up what was essentially my initial reaction to this story upon seeing the headline last night: “[T]he inability of Miers to deal with them underscores the fact that it is requisite to appoint someone who has spent some time actually thinking about these things prior to their nominations.”

We’re in full agreement on that point. I continue to believe that Miers is only nominally qualified to serve on the Court but that she falls far short of the traditional benchmark for appointment. From what I’ve gathered so far, though, the questionnaires mostly dealt with nonsense such as described in the post above rather than substantive intellectual issues such as judicial philosophy.

In that vein, I am quite puzzled by Hugh Hewitt‘s continued defense of Miers:

Judge Bork and the anti-Miers crowd are increasingly defined by their Potter Stewart-like standard for SCOTUS nominees: They’ll know a good one when they see it.

I missed that part of the GOP platform or the president’s campaign detailing the demand for explicit guarantees on Roe and Bollinger, or a set of resume standards. In fact, I missed any criticism remotely approaching this sort of denunciation when Chief Justice John Roberts was nominated, or Clarence Thomas or David Souter before him. Had Judge Bork been explicit in his introduction to the new book about the importance of such matters, he would have fewer confused readers.

If other anti-Miers critics would carefully lay out their minimum standards for a future SCOTUS nominee –not by name, but by credential and case holdings of concern to them– that would help the non-BWAE conservatives get their bearings.

Why anyone would be confused at the charge that Meirs is short of the mark set by, say, Bork, baffles me. In general, I would say a Supreme Court nominee should have a clear record of having grapled with complex issues of Constitutional Law at a very high level. Graduation high in one’s class at a top 10 law school would help establish this qualification, although it is neither necessary nor sufficient. Absent that, though, publication of major law review articles, authoring major appelate opinions, or similar evidence would be necessary.

Prior service as a judge isn’t required (the late William Rehnquist did fine without it, for example) but it is helpful. Absent that, though, I’d want serious evidence that they have the intellectual and temperamental skills necessary. Having clerked for a Supreme Court justice, as Rehnquist had, is an obvious substitute.

Miers has had a perfectly distinguished legal career, achieving leadership in her state Bar Association during an era when women lawyers were still a curiousity. But she has presented little evidence of having acquired the intellectual preparation for being one of nine umpires of the national legal system.

Update: It seems I was hasty in judging the questionnaire flap to be “silly.” See Miers Questionnaire, Take II for my revised and extended remarks.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. While I agree, overall, as to the nature of these questionaires, it does seem to me that the inability of Miers to deal with them underscores the fact that it is requisite to appoint someone who has spent some time actualy thinking about these things as they pertain to the position for which she has been nominated.

    Overall I tend to find the Senate “research” at this point of the nomination cycle to be absurd, but in this case, it is all we really have–we knew far more at this stage about Thomas and Souter both than we do about Miers, and they were the quintessential “stealth” candidates up and until this point.

    Consider how much more we, the informed public, knew about Roberts at this point in the process versus what we know about Miers.