- The Washington Times - Sunday, October 23, 2005

It’s never a good sign when a Supreme Court nominee is asked by the Senate Judiciary Committee to start over. Upon receiving Harriet Miers’ questionnaire, Chairman Arlen Specter said her response to a committee questionnaire was “insufficient,” while ranking Democrat Patrick Leahy called it “insulting.” It’s equally troubling that what Miss Miers submitted to the senators is the only reliable guide with which to judge her jurisprudence. Nearly across the board, conservative jurists and legal commentators have panned her responses as beneath the level of a potential justice.

Mr. Leahy’s insult aside, those who had hoped that Miss Miers’ judicial philosophy would shine in her answers, instead were given “strict constructionist” boilerplate and outright mistakes. For instance, Miss Miers mentioned the “proportional representation requirement of the Equal Protection Clause” in the Voting Rights Act. But there is no proportional representation requirement in the Equal Protection Clause. Some have argued that this isn’t really much of a mistake as it is sloppy writing. But her answers to matters of “judicial activism” and constitutional law experience, though sound, were nonetheless uninspiring. Mr. Specter’s “insufficient” characterization seems right.

The White House certainly hasn’t helped its nominee’s situation. The rationale behind the president’s choice, aside from his stated reasons, was that Miss Miers is an unknown commodity. The relative lack of available markers to weigh her judicial philosophy — what is known as a “stealth” strategy — is supposed to ease her through tumultuous Senate hearings.

It was strange then that the White House would attach another questionnaire Miss Miers filled out for the Texas United for Life organization in 1989 while campaigning for the Dallas city council to her Judiciary Committee questionnaire. On the former, Miss Miers said she would support a constitutional amendment banning abortion. The White House has also pushed Miss Miers’ religion as an evangelical Christian, which in Washington is code for anti-Roe v. Wade. During a conference call with religious leaders arranged by the White House the day Miss Miers was nominated, two Texas jurists who are friends with Miss Miers were said to have assured listeners that she would vote to overturn Roe. So much for the “stealth” strategy. Democratic senators who might have been content to let conservatives sink the Miers nomination now have a hook of their own.

All of which would mean very little if we were convinced that Miss Miers, like Chief Justice John Roberts, possessed the constitutional grounding to put pro-Roe senators in their place during her confirmation hearings, scheduled to begin Nov. 7. Sadly, her committee questionnaire does not suggest that she does. Being a justice in the mold of a Clarence Thomas or Antonin Scalia means more than simply being pro-life. It requires a fundamental understanding of constitutional law and an appreciation for an originalist interpretation of the Constitution. From what we’ve seen so far, Miss Miers has not met that standard.


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