Republican opponents of Harriet Miers’ Supreme Court nomination seem to have settled on a new strategy, which they believe may ultimately derail her chances: Make her look stupid.
Some of the advocacy groups that are concerned about Supreme Court nominee Harriet E. Miers’s lack of a record on social issues are favoring a new approach to thwarting her nomination: Asking the nominee, who has no judicial experience, complex questions about constitutional law and hoping she trips up.
Groups are circulating lists of questions they want members of the Senate Judiciary Committee to ask Miers at her confirmation hearings. The activists’ thinly veiled hope is that Miers will reveal ignorance of the law and give senators a reason to oppose her.
”We are trying to establish that there are thousands of questions that law students routinely deal with … and if she can’t get to that level, it doesn’t matter if you’re for the left or the right, at that point it’s a fait accompli that she is not fit for the office,” said Eugene DelGaudio, president of Public Advocate, a conservative profamily group.
I have to admit, this is a clever, albeit cruel, strategy. Even Judiciary Committee Chairman Arlen Specter (R-Pa.) has said that Miers — who has no substantive background in constitutional law, never published anything of substance, and has never argued a case before the Supreme Court — will need “a crash course in constitutional law.”
Clever senators and staffers, however, won’t. I don’t doubt that the White House will do whatever it takes to prepare Miers, but there’s only so much that can be done in a short period of time.
Many, on both sides, are already skeptical about Miers’ intellectual prowess. It didn’t help when Pat Leahy asked her to name her favorite Supreme Court justices and Miers responded, “Warren” — which led to some confusion over whether she meant Earl Warren (a liberal icon) or former Chief Justice Warren Burger (a conservative who voted for Roe v. Wade).
Rest assured, at the hearings, it could get ugly.
Some of the questions from social conservative groups are similar to law school exams, aimed at testing Miers’s knowledge of legal doctrines. Others demand specific information about her credentials, framed in a skeptical voice.
Concerned Women for America, one of the nation’s largest antiabortion groups, wants senators to ask: ”All attorneys are required to attend and complete mandatory continuing legal education courses. How many of Miss Miers’s courses have been on the subject of constitutional law? . . . What were the subjects, what were the courses and dates of participation?”
Public Advocate wants senators to ask Miers: ”Have you ever read Sir William Blackstone’s Commentaries on the Laws of England? If so, what was Blackstone’s view of the foundation of the common law? If not, why not?”
Keep in mind, it won’t be Dems asking these questions. Senators like Brownback and Coburn, who seem to be looking for an excuse to vote against Miers, will be handed these questions and will be able to justify their pop quizzes.
Bruce Fein, an attorney and former Reagan administration aide who opposes Miers’s nomination, said he thinks Miers is vulnerable to close questioning on Supreme Court cases. He predicted that it would be easy for senators to ”make a fool of Miers” by marching through constitutional cases and asking her to explain.
”If there is an intent to show that she just knows none of these things, I think they’ll have to recess and see if there is a gracious way for her to withdraw,” said Fein, who helped prepare Justice Sandra Day O’Connor for her confirmation hearing in 1981. ”I just can’t imagine a nomination where a candidate is unable to answer 40 questions that someone with a reasonable immersion in constitutional history would have on the tip of their tongue. The Supreme Court isn’t for on-the-job training.”
Already, staffers for six of the 10 Republican members of the Senate Judiciary Committee have “expressed some dissatisfaction” with Miers and are reportedly searching for ways to prompt her withdrawal. The pop quiz route would no doubt be brutal, but it might give some of these conservative lawmakers the pretext for opposition.
On the other hand, this strategy is not without risk. If Miers is better prepared than her critics expect, and she can speak intelligently on a variety of areas of constitutional law, this strategy could backfire and seal Miers’ confirmation. Conservative senators would look like callous bullies who couldn’t back up their threats.
Either way, Miers’ hearings are bound to be more interesting than Roberts’.