Perspective: Questions on choosing a Supreme Court justice

The confirmation of John Roberts as Chief Justice of the United States, and the nomination of Harriet Miers as an associate justice, have renewed interest in the process of Supreme Court appointments, but unfortunately the “oughts” of the process have not become any clearer. What criteria should the president apply in choosing nominees? Just what is the Senate’s role? Should nominees tell the president how they would vote on particular issues, like whether Roe v. Wade should be overruled? If they tell the president, should they also tell the Senate? Should they tell the Senate even if they didn’t tell the president?

The Constitution spells out some of the procedure, but none of the substance, of Supreme Court appointments. We know that the president nominates and the Senate gives “advice and consent.” Does “advice” mean that the president must consult the Senate in advance? (No.) What vote is required for “consent”? (At least half plus one.) Is each nomination entitled to a vote on the floor of the Senate? (We don’t know.)

The Constitution’s words provide no clue on the qualifications for appointment to the Supreme Court that either the president or the Senate should apply. This means that the standards are political, not legal. It is up to each president and each group of senators to create for themselves a set of standards to apply. Politics may be significantly constraining: Would a conservative president be able to take the political heat if he nominated a liberal to the Court? Would senators risk the political consequences and confirm an extremist?

This brings us to Harriet Miers. Who is Harriet Miers, why did President Bush choose her and should the Senate confirm her? Harriet Miers is apparently an accomplished lawyer, and there is nothing wrong with picking a lawyer, as opposed to a sitting judge, for the Supreme Court. If confirmed, Ms. Miers would be the only member of the Court whose previous job was not as a judge of a federal appeals court. This could add an important perspective to the Court. It is a little troubling, but not disqualifying, that her only government experience has been as a legal advisor to the president. There are probably dozens of qualified lawyers with experience that would have better preparation for the issues that come before the Court, but whether someone else would have been better does not mean that Harriet Miers is not qualified.

I assume that the president chose Harriet Miers because he likes to reward his friends and because he believes (maybe even knows) that she will join the conservative wing of the Court, together with Justices Scalia, Thomas and Roberts. The biggest problem facing the Senate (and the American people) is that we have very little information on Ms. Miers’ views on the issues that will come before the Court. We know she has been an advocate for strong executive power, but that should be expected in her role as a lawyer for the president. We are beginning to learn that she has taken staunchly anti-abortion positions, such as favoring a constitutional amendment to ban abortion except when the woman’s life is in danger, but we really don’t know how she would approach any issue as a judge, as opposed to as an advocate or politician. We can be confident that if any senator asks her point blank: “Would you overrule Roe v. Wade?” she won’t answer, even if she has told the president, or anyone else, privately. It’s not only liberals that are concerned. We know so little about Harriet Miers that even conservatives are concerned that she might not be staunchly conservative as a member of the Supreme Court.

The concern about her conservatism, and the president’s attempts to reassure his conservative base, reveals that everyone knows that Supreme Court decision-making is political, not legal. In my view, senators should ask all Supreme Court nominees direct questions about specific legal issues, and if they don’t get the answers they want, they should vote against confirmation, and use any procedural device they have to prevent confirmation even if they are in the minority. The reasons for this are quite simple. A Supreme Court nominee is interviewing for the virtually unreviewable power, with life tenure, to write our Constitution and to re-write our Constitution, not according to any binding legal standards, but rather, together with his or her eight colleagues, based on their own political views. I would never give someone unreviewable power to write my Constitution without knowing their views on the important issues. If you think this is liberal paranoia speaking, note that Robert Bork, who was rejected by the Senate for the Supreme Court supposedly because his views were too conservative, also attributes the current confirmation process to the Supreme Court’s own activism.

When President Bush says he is against judicial activism, what he means is that he is against liberal judicial activism, not the conservative judicial activism practiced by his model Justices Scalia and Thomas, and about to be practiced, I fear, by Chief Justice Roberts. On this score, I found her promise to strictly apply the Constitution and law particularly troubling. Strict application of the law seems to be a signal that she will resolve any doubts against a liberal application of laws, regardless of the legislative intent behind the law. This would raise conservative judicial activism to new heights. My guess is that if confirmed, Harriet Miers will join the ranks of conservative activists. I could be wrong, but I wouldn’t bet on it.

Jack Beermann is a professor and Harry Elwood Warren Scholar in Boston University’s School of Law.