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October 6, 2005

[Falls Church, Virginia. October 5, 2005.] Not since 1957 - when President Dwight D. Eisenhower nominated Charles Evans Whittaker - has anyone been nominated to the United States Supreme Court to fill a vacancy left by a justice whose vote was so crucial in so many constitutional cases. Hoping to shift the power on the court in a conservative direction, Eisenhower plucked Whittaker, a little-known lawyer and inexperienced judge to fill the bill.

Five years and six days later, Whittaker - at age 61 - resigned from the court, suffering from exhaustion, having been made the target for members of the Court battling and lobbying to create a majority. Overwhelmed by his responsibilities on the Court, and without having ever written a noteworthy opinion during his tenure on the Court, Justice Whittaker failed to fulfill President Eisenhower's hope to restore a conservative majority to the Court.

This week, President George W. Bush, saying that he wanted to move the Court in a more conservative direction, nominated Harriet Miers. Miers, like Whittaker, has been a successful practitioner and a leader of her state bar. An important question is whether she, like Whittaker, lacks the physical constitution, emotional stamina, and intellectual confidence, not only to survive on a Court that oftentimes is bitterly divided, but also to act independently both from her colleagues and from the very smart clerks whom she will hire to do her research and much of her writing.

If Ms. Miers is like Justice Whittaker, then she ought not be confirmed, for she would be, as columnist George Will has written, "the wrong pick." The challenge then, is for the Senate Judiciary Committee to ask Ms. Miers questions that explore her character and her convictions, both as a person and as a lawyer in order to ascertain whether she is emotionally, spiritually and intellectually fit for this job.

OUTLINE OF QUESTIONS BELOW

1. HARRIET MIERS' LEGAL WORLD
   1. Legal Philosophy
   2. Strict Constructionist
   3. Judicial Behavior
2. HARRIET MIERS' "CONSERVATIVE" VIEWS
   1. Converted Conservative
   2. Social or Economic Conservative
3. HARRIET MIERS' JUDICIAL TEMPERAMENT
   1. Judicial Independence
   2. Personal Character

1. HARRIET MIERS' LEGAL WORLD
   Background. According to numerous reports, Ms. Miers is a "born again Christian," whose conservative views are grounded in her faith, but she would not ground her court opinions in that faith. Rather, she would base her opinions on "the law." Further, she has stated that if she were confirmed for a seat on the High Court she would be a "strict constructionist". Harriet Miers should be asked to explain her philosophy of "law," and, as a "strict constructionist," explaining by what rules she would abide.
   1. Legal Philosophy
      1. Have you ever read Sir William Blackstone's Commentaries on the Laws of England? If so, what was Blackstone's view of the foundation of the common law? If not, why not?
      2. Have you ever read Thomas Jefferson's Preamble to his 1786 Bill Establishing Religious Freedom in Virginia? If so, what was Jefferson's view of the foundation for freedom of religion?
      3. What is your understanding of the phrase "laws of nature and of nature's God" that appears in the first paragraph of the Declaration of Independence?
      4. Do you agree with this statement: "The law is a living thing, with a continuous history, sloughing off the old, taking on the new"?
      5. Do you agree with Oliver Wendell Holmes' statement that "the life of the law has not been logic; it has been experience .... In order to know what it is, we must know what it has been, and what it tends to become"?
      6. Do you agree with former Chief Justice Earl Warren that the Eighth Amendment prohibiting cruel and unusual punishment "draws its meaning from the evolving standards of decency that mark the progress of a maturing society"?
      7. Do you agree that the law of American civil society must be "religiously neutral"?
   2. Strict Constructionist
      1. Do you agree with former Chief Justice John Marshall that the Constitution governs the Supreme Court and the other federal courts?
      2. As a strict constructionist, by which of the various rules of construction of the Constitution should a justice of the Supreme Court be bound?
      3. Do you agree with the following as a rule of construction of the Constitution binding on the Supreme Court? "In expounding the Constitution of the United States ... every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added."
      4. The word - "religion" - appears in the First Amendment to the Constitution. What would be a strict construction of the meaning of that word?
      5. According to Article I, Section 16 of the Virginia Constitution, "religion" is defined as "the duty which we owe to our Creator, enforceable only by reason and conviction, not by force or violence." Do you agree with that definition of religion?
      6. Does the First Amendment protect "freedom of expression"? If so, by what rule of strict construction is there such protection? If not, why not?
      7. Do you agree with the statement of the United States Supreme Court that "its interpretation of the Fourteenth Amendment" is the Supreme Law of the Land?
      8. What if the Supreme Court's prior interpretation of the Constitution is wrong? Would that be a good and sufficient reason for a strict constructionist to overrule an opinion based upon a wrong interpretation?
   3. Judicial Behavior
      1. As you presently understand it, please describe the decision-making process of the Supreme Court.
      2. As you presently understand it, please describe the opinion-writing process of the Supreme Court.
      3. If confirmed to a seat on the Supreme Court, by what criteria would you choose your law clerks?
      4. In whom, if anyone, would you confide in making your decisions or writing your opinions should you be confirmed to a seat on the Supreme Court?
      5. Would you seek advice from Texas Supreme Court Justice Nathan Hecht in reaching your decisions should you be confirmed to a seat on the Court?
      6. Based on your long professional and personal relationship with President Bush, would you seek advice from him in reaching your decisions, either while he is President or after he leaves office, should you be confirmed to a seat on the Court?
      7. What is your understanding of the oath of office of a United States Supreme Court justice?
      8. What is your understanding of the constitutional standard of good behavior required by Article III of the Constitution of all judicial officers of the United States?
2. HARRIET MIERS' "CONSERVATIVE" VIEWS
   Background. President Bush has assured the American people that Harriet Miers would be a "conservative" justice with views closely paralleling his own. According to several reports, Miers used to be a Democrat, but after converting to Christ in her mid-thirties, she became a conservative Republican. Born in 1946, Miers apparently was converted in 1979.
   1. Converted Conservative.
      1. How soon after your Christian conversion did you become a political conservative? What factor or factors of your faith conversion contributed to this political conversion? Which Republican principles did you feel to be more in line with the tenets of your faith.
      2. Were you a political conservative when you ran for office in the 1989 Dallas city council election?
      3. On March 28, 1989, pursuant to your campaign for the Dallas city council you completed a city council & mayoral questionnaire submitted to you by the Lesbian/Gay Political Coalition of Dallas. Why did you fill out the questionnaire? Based on your views, why did you not seek the Coalition's endorsement of your candidacy? Why or why not?
      4. Did you accept the Lesbian/Gay Coalition's invitation to participate in the March 27 or March 28, 1989 screening sessions? If so, why, and please describe your three-minute presentation and the question and answer session that followed.
      5. Did you appear at the Lesbian/Gay Coalition's Candidates Night on Tuesday, April 4, 1989? If not, why not? If so, describe your three-minute presentation and the question and answer session that followed.
      6. What did you mean when you answered "yes" to the Coalition's question: "Do you believe that gay men and lesbians should have the same civil rights as non gay men and women"?
      7. What did you mean when you stated on the Coalition questionnaire that you "consider the AIDS illness as a serious total community problem"?
      8. What factors, if any, would have persuaded you to have made "AIDS/HIV status" a basis for a city ordinance prohibiting discrimination in housing, public accommodations and employment, as you indicated in the Coalition questionnaire?
      9. Were you a political conservative when you contributed:
         • $1,000 to Lloyd Bentsen in 1987,
         • $1,000 to Al Gore's presidential primary campaign (where he was seeking the Democratic nomination to run against then Vice President George Herbert Walker Bush) in 1988 and
         • $1,000 to the Democratic National Committee in 1988?
      10. It has been reported that you were you pressured by a senior partner in your law firm to contribute to the national Democratic Party and Democratic candidates including Al Gore. Is this true? If so, what does this say about the strength of your convictions?
   2. Social or Economic Conservative
      1. Do you believe that a person's sexual lifestyle is a relevant factor in considering someone for appointment to a government position? If not, why not? If so, what sexual lifestyle would, in your opinion, disqualify a person for such an appointment?
      2. In the 1990's you accepted an appointment to chair the Texas Lottery Commission. Does your acceptance of that appointment indicate that you have no moral opposition to a staterun lottery?
      3. Are you morally opposed to government-sponsored gambling?
      4. What is your rationale for supporting the adoption of children by homosexual couples?
      5. Do you favor deploying women armed service members in combat? If so, would there be any circumstance in which a woman armed service member could not be deployed?
      6. Do you support the International Criminal Court exercising jurisdiction over an American soldier accused of committing war crimes or crimes against humanity in the war against Iraq?
      7. Believing as you did in 1992 that it was inappropriate for the American Bar Association to take a position on the abortion question, would it not have been inappropriate for the ABA to take a position on child adoption by homosexual couples? Would it not also have been inappropriate for the ABA to take a position on the International Criminal Court?
      8. Do you believe that the Supreme Court should ever rely on foreign human rights law in reaching a decision on the constitution?
      9. When Justice Roberts testified was asked about the separation of church and state before the Senate Judiciary Committee, he said that "my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source." This makes it seem that Chief Justice Roberts believes that the Establishment Clause requires that the government be neutral with respect to religion. That would mean, for example, the Court could not uphold a statute against murder because man was created in the image of God. Are those your views?
3. HARRIET MIERS' JUDICIAL TEMPERAMENT
   1. Judicial Independence
      1. As a practicing lawyer, you have the reputation of always putting the interest of your clients first. As a Supreme Court justice, what would be your first priority?
      2. You have served President Bush first as staff secretary, then as deputy chief of staff, and most recently as White House counsel. During this period of time, have you ever had occasion to take a position contrary to that of the President? If so, describe the circumstances and outcome. If not, why not?
      3. You have the reputation of being fiercely loyal to the President of the United States. Why should the American people believe that your loyalty to the President will not interfere with your faithful exercise of judicial review of the policies of this administration?
      4. Do you believe that, because you are a woman, you would bring something to your work as a Supreme Court justice that a man would not? If not, would you then disagree with the Bush Administration's characterization of your appointment as one which brings much needed diversity to the Court?
      5. What role, if any, would compromise have in the decision-making process of the United States Supreme Court?
      6. Do you believe that there are any issues that could come before the Court where compromise is morally wrong? If so, what are they?
      7. What do you anticipate to be the average number of days per week and hours per day that you would work during the Supreme Court's annual term?
   2. Personal Character
      1. According to one report, you were hard as nails as chairman of the Texas Lottery Commission. Also, President Bush has called you "a pit bull in size six shoes." Do you agree with those descriptions of your personality?
      2. According to some reports, you are regarded as a "mediocre" choice, a selection "made from weakness," "disappointing," and "a capitulation." How do you respond to comments such as these?
      3. Senator Harry Reid (D-NV) has said that you were a "trailblazer" for women as a managing partner of a major Dallas, Texas law firm, and the first woman president of the Texas Bar Association. Do you agree with the accuracy of those observations by Senator Reid?
      4. Jay Sekulow of the American Center for Law and Justice has said you "are one of us," an evangelical Christian with whom the Christian community could identify. How do you react to that statement?
      5. According to President Bush, your mother "instilled [in you] a conviction that you could do anything you set your mind to." What was your reaction to that statement when the President made it in support of your nomination?
      6. Which character traits would you consider to be the most suited for your being a justice on the United States Supreme Court?