Miers’ nomination stirs Law School profs

Yale Law School professors have expressed concerns about White House counsel Harriet Miers’ recent Supreme Court nomination, following a week of contention among conservatives and liberals across the country who have voiced skepticism about Miers’ judicial inexperience.

Some professors said Miers — a longtime friend of President George W. Bush ’68 who is little-known outside of the president’s inner circle — has yet to prove her merits as a judge, as she has never served on the bench or in any other public office, while other professors questioned Miers’ beliefs and the likelihood that she will be confirmed.

Yale Law School Professor Reva Siegel said she is troubled by the secrecy surrounding Miers’ record. Siegel, a constitutional law expert, said Miers’ appointment could set a dangerous precedent of “stealth” Supreme Court nominations.

“I’m disturbed about an incentive structure that would invite the president to select nominees to the Supreme Court whose primary virtue is that nobody but the president knows what their position is,” Siegel said. “To the extent that we’re privileging secrecy, we’re excluding all these people who had lives in the law: conservatives, liberals, law professors, people in politics, anyone who’s led a public life.”

Drew Days, another constitutional law professor at Yale, said Miers’ outsider status may be an advantage for the Court.

Career judges often must avoid certain groups to protect their impartiality, Days said, forcing them to live their lives secluded from social debate. Days said Miers may have an advantage over other Court candidates because she has had greater freedom to interact with the public.

“I think that it’s helpful to the Court as an institution to have justices who have had different life experiences in terms of their engagement with the world,” Days said. “At least for the first years when that person is sitting on the Court, he or she is likely to have more of a feel for the pulse of the man or woman on the street.”

Siegel said she agrees that experience is not a prerequisite for serving on the Supreme Court, noting that a number of justices with no experience have had great success. But because there has been little public documentation of Miers’ views in the past, Siegel said it will be important that the nominee be forthright about her opinions during the confirmation process.

“If she doesn’t have a public record, I think there’s some reason why it would be especially incumbent on her to answer questions about her judicial philosophy from the senators, so long as those questions are put to her in ways that are consistent with concerns of separation of powers and fairness to prospective litigants,” Siegel said.

Law Professor Steven Duke said he is inclined to suspect that Miers’ views are conservative because of her close ties to Bush.

Though Miers has not spoken publicly about her views on Roe v. Wade, Siegel said abortion will likely surface as a major issue for the Court in coming years.

“We don’t yet know how Roberts and this nominee, if confirmed, will vote,” Siegel said. “But there’s a chance that the constitutional protections for abortion rights would be significantly eviscerated.”

Many past Supreme Court nominees have declined to answer questions about their views on legal issues, citing the danger of pre-judging cases that might come before them. The recently-confirmed Chief Justice John Roberts, who replaced the late William Rehnquist, made such claims.

But Days said Roberts’s court credentials far surpass those of Miers, which could make her confirmation more difficult.

“The bar has been set very high after John Roberts’ confirmation,” Days said. “He had a platinum resume, and so most people would pale by comparison.”

Stuart Taylor Jr., a Supreme Court expert at the Brookings Institution, said he is doubtful that Miers is sufficiently well-informed for the job, which he said eclipses her views on specific legal issues.

“In general I think she’s an admirable person, but I don’t think she’s shown that she’s one of the better legal minds in the country,” Taylor said.

Taylor said the nomination may benefit conservatives even if it is defeated. If Democrats block the confirmation on the grounds that Miers is not qualified for the job, Taylor said, Bush’s next nominee could be much more conservative and the public might lack the patience for another battle.

But despite the questions and concerns raised about Miers’ record, Days said he believes justices often become less polarized about a number of issues when they join the court.

“Preconceptions tend to break down in many of the people who go on the Court,” Days said.

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