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Miers Senate Questionnaire:
The National Review has posted the 57-page .pdf file containing Harriet Miers' responses to the Judiciary Committee's questionnaire. The second half contains discussions of cases Miers has litigated, and the last three pages has a discussion of her views on "judicial activism." No suprises, as far as I can tell, but still interesting reading. Hat tip: Howard.
devil's advocate (mail):
AP is reporting the questionaire says she would support Const. Amend to ban abortion, no public funds for abortion, etc. It is just me or isnt that new info, officially on the record opposing the practice as immoral?

It is going to be hard for her to claim the personal vs. legal view distinction on an issue like that one. I suspect she will continue to offend both sides (conservative and liberal) if she sticks to that. Both will think she is trying to hide something with a John Kerry-style nuanced defense. Why doesnt she come out and say it like Bork, why is the WH scared to advocate for its positions? There are more R Senators than in Bork's day.
10.18.2005 1:11pm
Elias:
Maybe I'm not especially worldly—or maybe I'm just a crank who hates filling out forms—but I can't believe the Senate Committee actually asked Miers some of this stuff. Just on page one, it apparently asked her to state her name. Presumably the questionnaire was already addressed to Miers, and then delivered to Miers, and there certainly has been some media coverage of this whole nomination thing, but I guess there still might be some mystery as to whom exactly President Bush nominated. Question One clears up that burning question. Why, the nominee is someone named Miers—Harriet Miers!

(OK, I guess in theory Miers could have some aliases floating around out there. Fine.)

But then, in a move that can only be construed as inflammatory, the Senators instruct her to "[s]tate the position for which you have been nominated"! Uh, don't the Senators, like, already know that? Especially since it says, right at the top of the questionnaire, "NOMINEE FOR THE SUPREME COURT OF THE UNITED STATES"?

You'd think I'd get over this ticky-tack stuff and move on to the substance of the other 56 pages. But you'd be wrong. The first page is an outrage. Impeach Specter and Leahy!
10.18.2005 1:14pm
Marc Bohn (mail):
Devil's Advocate: A survey accompanying the questionaire included Miers affirmative response to a 1989 survery questiong whether she would support a Constitutional Amendment banning abortion. See:
10.18.2005 1:42pm
42USC1983 (mail):
My Westlaw sub. won't get me into sct-briefs, but any students or professors out there should be able to get the cert. petitions in Jones v. Bush (cert. denied, 531 U.S. 1062 (2001)). Of course, did she write this? Is there a way to get the trial transcript from this case? Texas readers? (Which also raises a question: If she's such hot stuff, why hasn't the administration leaked these transcripts?)

I also see she didn't file a cert. petition from 1982 until 2001. (p. 32.) Am I missing one? While I don't think it should be the sine qua non of a SCt. justice, her lack of cert. work disturbs me. If she was a "pioneer," she had to be filing cert. petitions, since, well, pioneers change the law and you need 5 justices to help you do that.

Her work in Microsoft Corp. v. Manning (p. 33-34) seems pretty interesting. If she cogently wrote a brief addressing those issues, I'd be impressed. So, as they say, Where's the brief?
10.18.2005 2:26pm
Kent Scheidegger (mail) (www):
I disagree that there are no surprises in the questionnaire. First, I am surprised by the definition of judicial activism in the question. The primary characteristic of judicial activism is usurping to the judiciary decisions that the Constitution actually vests in the elected branches. The question only relates to that tangentially.

The answer, as well, deals in generalities and avoids the main point. Maybe that is not a surprise, but it is a disappointment. Perhaps the committee should have asked Ms. Miers whether she agrees with Justice Black's statement in McGautha v. California: "Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power."
10.18.2005 3:26pm
18 USC 1030 (mail):
I have a question for all the Con Law Professors: If you instructed your students to write on the subject of judicial activism, would Miers' answer be acceptable? To me, the answer was without any substantive discussion whatsoever. Also, her writing seems to be lacking a bit. Finally call me picky, but there was no mention of "usurping decisions" to the judiciary that remain in the hands of the executive or legislature.
10.18.2005 3:40pm
Steve:
"Judicial activism" is a political term. Of course there is no substantive definition!
10.18.2005 4:54pm
ras (mail):
43USC1983

If she's such hot stuff, why hasn't the administration leaked these transcripts?

Just a theory of course, but here's a chain of reasoning on the subject. It is, of course, open to intepretation along the way, but I think it holds up overall:

1. Bush has decided he cannot break the fb. He tried for years and the Senate wouldn't budge.

2. Therefore, since D's were gonna fb any obvious conservative, Bush's choices were reduced to nominating either a Squish or a Stealth.

3. If Bush truly wanted a non-squish conservative - and his previous nominees at all levels indicate he is very consistent on the issue - his choices were further reduced to just one: Stealth. Even Roberts was something of an unknown to many.

(btw, as a layman, I am loosely using "conservative" very loosely, just to say that Bush wanted to nominate a judge similar to his other nominees)

4. This leaves Bush working from a very short shortlist indeed. How many Stealth Conservatives are out there that Ted Kennedy wouldn't fb? Hellooooo Harriet!

[This doesn't mean that HM is actually gonna be a conservative judge or not. We can't be sure either way. It just means that Bush himself thinks she is the most conservative choice he can get confirmed at this time.]

5. If HM is a stealth conservative, then the *last* thing Bush wants to do is set off a fb by advertising her proclivities too soon, while there is still time for the D's to organize, or worse, for her nomination to die in committee. After committee, however, it would take several R's to vote her down, as opposed to just one beforehand.

6. So all Bush's best evidence, transcripts or otherwise, will be kept under wraps till the last possible moment. That's what stealth entails, and all driven by the threat of a fb.

--

One interesting possibility that emerges, then, is this: HM gets thru committee by sticking to platitudes, but once before the Senate itself she switches, and makes comments such as, "I think Clarence Thomas is the most brilliant Justice ever. I share his judicial philosophy and my goal is to be just like him."

If dunno if she'd actually wanna do this. More likely, I think, she'd stealth thru to the very end, rather than take such a chance, if she could. But, depending on the questioning, it may not be entirely up to her.

It'd sure put the Dems in a pickle if it happens. If it didn't provoke a fb fight - one that the Dems would lose by virtue of having recommended her with the promise not to fb - it would at the very least ease the pressure on the next Bush SCOTUS nominee, should that occur.

For sake of arg, say the next one is Luttig to replace RBG. What would the Dems say to justify a fb of him? That he's less qualified than HM? That he secretly wants to be like Clarence Thomas?

Anyway, you get the idea. If the chain of reasoning above has merit, everything else kinda flows from that, not just the choice of HM herself, but also why it's been like pulling teeth to learn more about the kind of Justice she intends to be: it's too soon for the stealth nominee to reveal herself yet, if she even intends to do so at all before confirmation.
10.18.2005 5:24pm
David Maquera (mail) (www):
I predict the Harriet Miers nomination/fiasco will be voted down by the Senate: 51-49 by my last count.
10.18.2005 5:34pm
ras (mail):
David Maquera,

I predict the Harriet Miers nomination/fiasco will be voted down by the Senate: 51-49 by my last count.

Bush will be counting votes along the way. If it looks unpromising beforehand, I'd expect HM to toughen up her talk and put the D's in a bind, per my prev comment above.

Remember, Bush could even use HM to break a fb in addition to then withdrawing her nomination. A face-saving compromise like that might be just what someone like McCain would go for, considering the pressure he'd be under if the D's fb.

The potential variations allow for many different moves yet, by all the players in this most complicated of dramas. I wouldn't be suprised if it gets made into a Quinn-Martin production one day, and we're only in Act II so far.
10.18.2005 5:42pm
Matt Barr (mail) (www):
Kent Scheidegger: Would that her answer to the judicial activism question merely avoided the point!

Standing and subject matter jurisdiction are the first questions any court has to deal with, not just Judge Joe. Each is averred by the plaintiff, and the defendant can challenge in their reply if they like. The only unique thing about them is that the court may dismiss a case either on motion of the defendant or on its own for lack of standing or jurisdiction.

It does not dismiss a case, as Miers says, for improper venue. Nor does a court ever change venue on its own motion, other than when the court determines that the potential jury pool is exhausted. The defendant must generally move for a change of venue.

Standing, subject matter jurisdiction and venue are not "basic rules of Article III." Much of Article III deals with federal jurisdiction, but not standing or venue. Which in any case would not be considered "rules of Article III" anyway, they're common law rules codified in virtually every jurisdiction in the country, and the ones where it's not follow them anyway.

Courts "hear[ing] disputes that are not ripe, not brought by a party with standing, not brought in the proper court, or otherwise not properly before the court" is not what anyone is talking about when they complain about judicial activism. The questionnaire helpfully tells Ms Miers what it means by that term, and that's not it.

The reason hearing cases that aren't ripe, are brought without proper standing or are not within the power of the court to adjudicate aren't judicial activism is because without those things cases are "dismissed promptly." Judge Joe didn't have a quirkly little rule, there. There is no notorious example of "judicial activism" anyone reading this can cite where the problem was any of these things. By definition, courts don't keep cases long enough to be judicially active when they're defective in that way.

This is the sloppiest two-bit work you're ever going to find on what amounts to a job application. This nonsense would get you a d-minus on a law school exam, and it wouldn't get you a second interview on any normal job application.
10.18.2005 7:32pm
Witness (mail):
42USC1983: Since when do you "need 5 justices" to help you "change the law"?
10.18.2005 8:23pm
A Guest Who Enjoys This Site:
Let's see...

"...three cases in which certiorari to the Supreme Court of the United States was sought."

The first was simply a matter of arguing that the plantiff did not have standing and that Cheney lived in Wyoming. Tough argument to make given that you have to show that someone does and/or does not live somewhere. Definitely a complicated issue, requiring a superior legal mind, since one needs, in essence, only point make the same 'residency' arguments as a college freshman paying tuition fees.

Number two was 30 years ago where she was a court-appointed attorney for a convict requesting appeal of his sentence. Not only did she lose the appeal, she was eventually denied cert. by the Supreme Court.

Number three was a pro bono representation, at the appellete level, for an indigent mother denied benefits. Once again, she lost the appeal and was denied cert.

Not a convincing record vis a vis her abilities to create convincing or persuasive legal argument at the Supreme Court level; or even the appellete level for that matter.

In answering the question related to judicial activism, she states:

"My own beliefs about these issues have been formed over many years, and find their roots in the beginning of my legal career."

Given the content of her stated views, could she have simply said, my own beliefs can be found in the Federalist Papers?

Her statement related to judicial activism occurring "when a judge ignores the principles of precedent and stare decisis" reads, essentially, as:

"Precedent and established law are important unless you find a compelling reason to take issue with the decision process used to generate such precedent. And, although I wish to only stipulate vague, societal reasons which might inform a definition of 'compelling reason,' I will be most careful in my reconsideration."

What?

In short, I see a lot of verbage dedicated to repetition of boiler plate definition of the judiciary's role; definitional language that can and is used by 'activist' judges to support THEIR activism. Her response reads like many a college undergraduate's attempt at "five paragraph essay" response; finding that they, in fact, have another 45 minutes left in the exam and should write something 'more.'

Sorry, I don't mean to be overly critical. Nor do I expect this questionnaire to be overly illuminating in terms of specifics. But, I would like to see a bit more 'original thinking' indicative of 'personal awareness' (not to be confused with 'originalist philosophy') rather than rote enumeration of the powers of the judiciary. At least that's the impression I'm left with after going through the 57 pages.
10.18.2005 9:09pm
TheAbsentMindedOne (www):
I updated my review of her Texas appellate cases. Her questionnaire contains incorrect answers about her cases.

http://theabsentmindedone.blogspot.com
10.18.2005 10:56pm
Nicole:

< rel="nofollow" href="http://www.law.umich.edu/library/news/topics/miers/miersindex.htm">Writings by Meirs

Below are links to information about and writings by Harriet Miers. They are categorized and are arranged in reverse chronological order within each category.

From the University of Michigan Law Library
10.19.2005 1:41am