CWA Responds to Harriet Miers' Qualifications for the Supreme Court 10/10/2005

Concerned Women for America (CWA) initially responded to President Bush’s nomination of Harriet Miers on October 3 by expressing our cautious optimism and hope that we would be able to support the nomination. This memorandum expresses our assessment of what has transpired since the President made his announcement and of any new information about Miss Miers.

The media are brimming with coverage about Miss Miers’ background and qualifications and the ensuing debate over her nomination. CWA staff members have been heavily involved in evaluating information about Miss Miers and in expressing CWA’s response.

At this time, CWA cannot endorse the nomination but we remain open to persuasion. We do not believe that we have learned anything more about Miss Miers that justifies endorsement. We have not and will not express any criticism of Miss Miers personally or of the President. A principled position stands or falls on its own merits. Personal attacks serve only to undermine and discredit.

Several good friends have strongly endorsed the nomination. That is their right, and we continue to respect and count them as friends. Some have opined that those who haven’t endorsed the nomination have succumbed to “elitism” and “sexism” or a failure to trust the President. Nothing could be further from the truth with respect to CWA’s position.

CWA has never required that nominees we support must have Ivy League credentials. Many of those we have supported for the circuit courts and the Supreme Court did not attend Ivy League law schools, for example Judges Janice Rogers Brown, Michael McConnell, Edith Jones, Michael Luttig, Priscilla Owen and Emilio Garza.

Likewise, it would be unwarranted to withhold endorsement on the basis of an Ivy League education. Our support of Miguel Estrada, Judge Samuel Alito, Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas repudiate the notion.

Secondly, we evaluate nominees on the same basis regardless of whether they are women or minorities. We reject the notion that a nominee should be selected or rejected on the basis of sex, race or ethnicity. Neither equal justice under law nor one’s judicial philosophy is dependent upon such factors. The symbol of Justice wears a blindfold to communicate that people stand equal before the courts.

We do not agree that conservative “activists” care only about how a judge will vote on issues but only conservative “intellectuals” care about the rationale and process by which a judge arrives at a decision. CWA opposes judicial activism whether it is liberal or conservative. No one should use the position of a judge to advance a personal policy preference. To do so disrespects the separation of powers mandated by the Constitution and the role of the judiciary.

A qualified nominee for the Supreme Court must have more than intellectual ability and legal competence. It requires a deep knowledge of and experience in constitutional law. That must be coupled with the ability to stand one’s ground as a stalwart and persuasive voice for interpretation of the Constitution faithful to its text and the Founders’ intent. We believe the best evidence of that is a record of having done so.

White House representatives and other supporters of Miss Miers immediately announced that she is an evangelical Christian. There is continual emphasis on her faith and the advantage of having an evangelical Christian on the Supreme Court. We do not doubt Miss Miers’ faith in Christ—we share it.

Like CWA, most of those emphasizing Miss Miers’ faith have resisted any attempt to impose a religious test on any person seeking public office. The Constitution forbids it. We find it patronizing and hypocritical to focus on her faith in order to gain support for Miss Miers.

President Bush continues to express that his reasons for selecting Miss Miers are his personal knowledge of her integrity, character, intellectual ability, her legal career and accomplishments as first woman president of the Texas State Bar, her influential positions within the American Bar Association (ABA), her position as White House Counsel for the past eight months and her commitment to judicial restraint.

The President stated in his press conference in the White House Rose Garden on October 4 that Miss Miers is the “best qualified person in the United States.” He said he liked the idea that she was from outside “the judicial monastery.” He promised that “when it’s all said and done, the American people are going to know what I know.”

WHAT DO WE KNOW ABOUT MISS MIERS’ QUALIFICATIONS THAT CONFIRM SHE IS THE “BEST QUALIFIED PERSON” FOR THE SUPREME COURT?

We do know that there are several men and women, some of whom are mentioned above, that we believe are much more highly qualified than Miss Miers. They share Miss Miers’ personal character qualities of integrity, intelligence, a generous spirit and public service but their professional experience is far more extensive than hers.

More importantly, they have records proving that they are committed to textual interpretation of the Constitution and the limited role of a judge. They meet the President’s criteria for a Supreme Court justice. Many were confirmed after being nominated by him for positions on the circuit courts of appeals.

With all due respect to the President and those who place great weight on selecting a nominee from outside “the judicial monastery,” we do not agree that those who are bring perspective and life experience to the bench that judges lack.

Judges, like others, were born into a family, attended school, socialize, acquire employment, marry, vote, serve in other branches of government, work in the private sector, experience loss of loved ones, know the experience of being a mom or a dad, suffer health problems and other hardships, interact with ordinary people, watch movies, attend concerts and sporting events, read books that have nothing to do with law and write something other than legal opinions.

Judge Janice Rogers Brown is a classic example of someone who has experienced and overcome some of the most challenging adversities. She is the daughter of an Alabama sharecropper, an African-American single mother who worked her way through college and law school. She was appointed to and re-elected by a large majority of Californians to the State Supreme Court.

During her confirmation hearing after President Bush nominated her to the U.S. Court of Appeals for the D.C. Circuit, her intellectual ability, knowledge of the law and record of judicial restraint were compellingly demonstrated. Her judicial temperament and grace under fire shone like the sun. She is not what some have referred to as Eastern elitist. Judge Brown is notably more qualified to sit on the Supreme Court.

There is no reason to settle for less when there are so many excellent individuals from which to choose. The President says he knows that Miss Miers is the best-qualified person. We do not presume to know what President Bush knows about Miss Miers, and whether we know does not mean that she is not the best-qualified person.

We believe it is reasonable and necessary to be certain that Miss Miers is at least well qualified for the Court before we can endorse her nomination. That requires credible evidence.

As the Scriptures state, “Now faith is the substance of things hoped for, the evidence of things not seen.”1

Contrary to popular opinion, faith does not mean believing despite any evidence. Biblical faith appeals to evidence. Man should not expect others to exercise faith without evidence2 when God does not do so.

WHAT EVIDENCE DO WE NOW HAVE THAT MISS MIERS DESERVES TO BE TRUSTED WITH A LIFETIME APPOINTMENT TO THE NATION’S HIGHEST COURT?

Until 2001, Miss Miers’ legal experience was as managing partner of a large corporate law firm. Corporate law, like several other areas of legal practice, does not generally involve constitutional issues. When it does, the lawyer does not educate herself on the issue beyond what is required to adequately represent her client.

Was Miss Miers’ corporate practice primarily transactional (contract writing and negotiations) or was it primarily litigation? How many of her cases involved constitutional issues? What were the issues? Did Miss Miers do most of the research and writing herself? Has she argued constitutional issues before a court? How many times? In what courts? In how many did she prevail? Are there any published opinions? If so, what are the case names and citations?

To which of the Founders was Miss Miers referring in her acceptance statement, and why?

What did Miss Miers mean when she promised to keep our judicial system strong and what would she do to accomplish that commitment?

Does Miss Miers believe that the Declaration of Independence is important to understanding the U.S. Constitution?

Does Miss Miers believe that Supreme Court members should consider foreign law when interpreting the meaning of the U.S. Constitution?

It has been reported that Miss Miers’ favorite Supreme Court Chief Justice is Warren Burger. Why?

Has Miss Miers authored or co-authored any amicus curiae briefs that argued constitutional issues? If so, in which cases and courts?

All attorneys are required to attend and complete mandatory continuing legal education courses (M.C.L.E.). How many of Miss Miers' courses have been on the subject of constitutional law? If so, what were the subjects, what were the courses and dates of participation? Has Miss Miers instructed at an M.C.L.E. course on the subject of constitutional law?

Has Miss Miers spoken or debated on any subject of constitutional law, theory of interpretation, the role of the courts or separation of powers? When, where and on what subjects?

Is Miss Miers published on any subject of constitutional law? What are the publications, titles and dates of publication?

Has Miss Miers been a visiting lecturer on constitutional law in any law schools? When, where and on what subject?

It is reported that in the late 1990s when Miss Miers was a member of the advisory board for Southern Methodist University’s law school she helped initiate a women’s studies lecture series. The lecturers have been women who espouse a radical theory of feminism. Gloria Steinem delivered the series’ first lecture in 1998. In the following two years, the speakers were Patricia S. Schroeder, the former Democratic congresswoman widely associated with women’s causes, and Susan Faludi, the author of Backlash: The Undeclared War Against American Women (1991). Ann W. Richards, the Democrat whom George W. Bush unseated as governor of Texas in 1994, delivered the lecture in 2003.3

Has Miss Miers expressed any opinion about the dominance of feminist theory in the women's studies program? Does Miss Miers share the feminist theory that lecturers have presented? Has she disassociated herself from the lecture series or attempted to bring lecturers to the program that represent a traditionalist perspective on women? Why has she not participated as a lecturer?

Supporters of Miss Miers point to her work as president of the Texas Bar Association to influence the ABA to adopt a neutral stance on abortion. It did not. Until accepting a position as White House staff secretary in 2001, Miss Miers was still heavily involved in the ABA.4

Why did Miss Miers participate in a voluntary professional association whose amicus briefs do not consistently appeal to a textualist interpretation of the Constitution, which she has promised to do?

If Miss Miers does not support abortion, why did she continue in leadership positions in the ABA, which does support abortion? If she were not in her current position, would she continue to participate despite its opposition to a constitutional amendment banning same-sex marriage, its support of physician-assisted suicide, the International Criminal Court and requiring the Boy Scouts of America to allow homosexuals to participate as Scout leaders?

-------------------------------------------------------------------------------- End Notes

Hebrews 11: 1, New King James Version Acts 1:3: “After his [Christ’s] suffering, he showed himself to these men and gave many convincing proofs that he was alive. He appeared to them over a period of forty days and spoke about the kingdom of God.” [Emphasis added.]

I agree. It's an excellent position paper. They pretty much say what I have said: i.e., that there are several candidates more highly qualified, and that they just don't know what her positions are on the basic issues.

Unlike me, they have decided to hold their fire and wait, which is quite proper for an organization of their kind. Meantime, they do not endorse Miers, nor do they condemn her.

QUESTIONS NEEDING ANSWERS:

Was Mr Thomas'’ government practice primarily transactional (contract writing and negotiations) or was it primarily litigation? How many of his cases involved constitutional issues?

(None for Thomas)

What were the issues? Did Mr Thomas do most of the research and writing himself? Has he argued constitutional issues before a court? How many times? In what courts? In how many did he prevail? Are there any published opinions? If so, what are the case names and citations?

(None for Thomas)

To which of the Founders was Mr Thomas referring in her acceptance statement, and why?

snip- all could be asked of Thomas at the time and who would have believed him?

Has Miss Miers authored or co-authored any amicus curiae briefs that argued constitutional issues? If so, in which cases and courts?

(None for Thomas)

All attorneys are required to attend and complete mandatory continuing legal education courses (M.C.L.E.). How many of Mr Thomas' courses have been on the subject of constitutional law? If so, what were the subjects, what were the courses and dates of participation? Has Mr Thomas instructed at an M.C.L.E. course on the subject of constitutional law?

Not that I know of.

Has Miss Miers spoken or debated on any subject of constitutional law, theory of interpretation, the role of the courts or separation of powers? When, where and on what subjects?

Is Mr Thomas published on any subject of constitutional law? What are the publications, titles and dates of publication?

Back then, none for Thomas that I know of.

Has Miss Miers been a visiting lecturer on constitutional law in any law schools? When, where and on what subject?

Same again

You get the picture. As far as the CWA goes, Thomas, if nominated today would flunk their test.

As a vocal proponent of the "wait and see" position, I found this extremely lucid, and a well-stated attempt to clarify the issues outside of the vitriol that has infected the debate.

And I endorse their list of questions as a subset of the questions the nominee should answer.

I was especially pleased to see that while they did lament the number of "more qualified" prospects which were passed over, they did not say that better qualified people was a reason to vote against a nominee.

They didn't address the possibility that the people they liked more may have not wanted the job, but since they are not arguing that miers should be rejected BECAUSE we should get the others, I see no fault in their opinion.

This is what I think Rush is talking about when he talks about the opposition to Miers. I like his line "We aren't cracking up, we are cracking down".

I'm not against cracking down, so long as we realise that our elected politicians exist in a political reality, so we in my opinion need to cut them SOME slack that they might have a plan which has to be kept from us to acheive our goal.

We should certainly state forcefully what we WANT.

WHY DON'T YOU RESPOND TO ALL THE QUESTIONS - AND I BELIEVE THOMAS WAS NOT A MEMBER OF THE NAACP...........I WOULD HAVE TO RESEARCH IF YOUR ANSWERING FOR THOMAS WOULD BE ACCEPTABLE TO CONCERNED WOMEN FOR AMERICA..........BUT PLEASE GIVE IT A TRY

AS OF NOW I DON'T EVEN KNOW IF YOUR ANSWERS ARE CORRECT BUT THAT WOULD BE LIMITING THE DISCUSSION; HOWEVER, WHEN I HAVE TIME, I'LL GIVE IT A GO............HOWEVER I DON'T THINK IT WOULD CHANGE YOUR OPINION AS YOU ARE PART OF THE DIALECTIC AND A TOTALITY OF FACTS WOULD NOT INTEREST YOU.

http://www.libertygunrights.com/AlteringHumanSociety.pdf

NOW, PLEASE DON'T JUST APPLY THIS TO GUN RIGHTS BUT UNDERSTAND THE TECHNIQUE , THE CONCEPT OF THE DIALECTIC AND THEN READ ALL OF MISS MIER'S WRITINGS. TAKE YOU SAY 10 MINUTES; UNFORTUNATELY DOWNLOADING IS MORE OF A TIME INVESTMENT........

SHE IS THE PERFECT CONCENSUS CANDIDATE; I'LL GIVE YOU THAT MUCH

Thomas, if nominated today would flunk their test.

Thomas would not meet the WH criteria for this seat:

James Dobson: "He [Rove] also made it clear that the President was looking for a certain kind of candidate, namely a woman to replace Justice O'Connor. And you can imagine what that did to the short list."

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