Tipsheet: IU law experts comment on nomination of Harriet Miers

EDITORS: Harriet Miers was nominated today (Oct. 3) by President George W. Bush to serve as a Supreme Court justice. Several Indiana University School of Law-Bloomington faculty members with notable expertise on the Supreme Court and the American legal system weighed in on her nomination.

Charles Geyh, professor of law, Charles Whistler faculty fellow and author of the forthcoming book When Courts and Congress Collide: The Struggle for Control of America's Judicial System (University of Michigan Press, 2006): "The nomination of Harriet Miers may test the limits of Democrats' patience. Miers' record on issues of relevance to her future role as associate justice appears (at this juncture, at least) to be even more limited than for Chief Justice (John) Roberts, and if Miers is no more forthcoming than Roberts in her responses to inquiries from the Senate Judiciary Committee, it may lead more Democrats to vote 'no,' simply because they do not know enough to vote 'yes.' That said, it is difficult to imagine that many, if any, Republicans would be similarly troubled, and for Democrats to filibuster a nominee simply because she was insufficiently forthcoming could be a risky gambit." Geyh can be reached at 812-855-3210 or cgeyh@indiana.edu.

Craig Bradley, James L. Calamaras Professor of Law, former clerk for William H. Rehnquist and editor and co-author of The Rehnquist Legacy (Cambridge University Press, 2005): "Harriet Miers is a largely unknown quantity without much of a track record on the important constitutional issues that face the Supreme Court. It is likely that she has not formed a strong judicial philosophy on many of these issues. Her most distinctive quality is that she is an extreme Bush loyalist. However, that has been known to change in Supreme Court appointees and, in any case, will be irrelevant in three years. She appears to be qualified, though without the intellectual credentials of John Roberts. It remains to be seen what a public vetting of her background will turn up." Bradley can be reached at 812-855-1257 or bradleyc@indiana.edu.

Joseph Hoffmann, Harry Pratter Professor of Law and a former clerk for William H. Rehnquist: "Despite what you will hear from People for the American Way on the left, and Public Advocate on the right, the nominee's personal opinion about Roe v. Wade -- or any other particular issue, for that matter -- is irrelevant to whether or not she will be a great justice. Beyond the obvious legal qualifications, what we need to know is whether the nominee has the proper judicial temperament. Does she have a healthy respect for precedent, recognizing the harm that can be caused by abrupt changes in judicial direction? Is she cautious, waiting to hear from all sides before making a decision? And is she modest, believing that her own initial beliefs might prove, on further reflection, to be wrong? These are the core values required to be a great justice." Hoffmann can be reached at 812-345-1520 or hoffma@indiana.edu.

Dawn Johnsen, professor of law and former acting assistant attorney general for the Office of Legal Counsel, U.S. Department of Justice: "The president's choice of Ms. Miers puts tremendous weight on the Senate confirmation hearings. The president knows her extremely well, as his lawyer in the White House and back in Texas, so he knows if she is like the justices he describes as his models: Clarence Thomas and Antonin Scalia. On the other hand, she has very little in the way of a record. So, senators who do not want to replace Sandra Day O'Connor, the justice in the middle of the Court, with someone on the far right, will have to look to what Ms. Miers has to say in the confirmation hearings for a sense of what kind of Justice she would be. If she is not forthcoming, I would anticipate substantial opposition." Johnsen can be reached at 812-856-4984 or djohnsen@indiana.edu.