Analysis: Miers on the Constitution
on Oct 18, 2005 at 2:32 pm
Supreme Court nominee Harriet E. Miers told the Senate Judiciary Committee on Tuesday that she had been involved as a private attorney in three cases that were appealed to the Supreme Court — none of which was granted review. Only one of the three appeared to involve any significant constitutional issue, and that one involved the political career of President Bush.
Miers also made a broad claim to having handled constitutional questions as White House Counsel to President Bush. But, she gave no details, even though the Committee had asked her to “describe in detail the constitutional issue you dealt with, the context in which you dealt with it, and the substance of any positions you took related to that issue.” She also failed to provide detailed support for a claim that, as a private lawyer, she handled “many cases involving issues of personal jurisdiction under the United States Constitution” and gave no details on her handling of “many First Amendment issues” while representing “a media client for many years.”
Miers discussed these issues in her 57-page response to the Committee’s questionnaire about her background. The overall impression created by her responses was that, in private practice, she was primarily a commercial litigator or adviser, and had very few occasions to delve into constitutional issues. In a section of her responses talking about private cases that included constitutional questions, she mentioned only five specifically — and one of those was also one of the three that had been taken to the Supreme Court but not reviewed there.
Even that specific case — the only one of consequence in her constitutional resume — seemed to serve mainly to reinforce the impression that the Constitution figured in her work primarily when George Bush’s interests were involved.
That case was Jones v. Bush, decided in lower federal courts in 2000 and denied review by the Supreme Court in 2001. A group of Texas voters filed a lawsuit claiming that George Bush and Richard Cheney could not run together on the GOP national ticket in 2000 because both were inhabitants of Texas, and the Constitution forbids presidential electors from giving their votes to candidates from the same state. Bush was undeniably a Texan; indeed, he was governor at the time. Miers was his lawyer and said she was “lead counsel” in the case. Cheney was living in Texas, working in the oil business, but maintained that he was an inhabitant of Wyoming.
Miers related that the case involved both a question of whether the Texas voters could sue at all (the question of “standing”) and whether the two candidates were from different states. A U.S. District Court found the voters had no right to sue, but also found they were not likely to win anyway with their claim that Cheney was a Texas inhabitant. The Fifth Circuit also rejected the challenge. The voters then asked the Supreme Court to review the case; Miers and the other members of the Bush-Cheney legal team did not file a response there; the Court denied review.
One of Miers’ two other experiences with Supreme Court cases involved a criminal case in which she was the court-appointed attorney for a man convicted of counterfeiting securities. After her client lost in the Fifth Circuit, she appealed to the Supreme Court, the federal government opposed review, and the Supreme Court declined to hear the case. Her third case involved a woman’s failed attempt to gain Social Security disability benefits. Miers represented the woman pro bono. After her client lost in the Fifth Circuit, Miers appealed to the Supreme Court; the government did not respond, and the Supreme Court denied review.
The Committee’s question specifically aimed at Miers’ dealing with constitutional issues elicited this claim about her White House lawyering service: “As Counsel to the President, I am regularly faced with issues involving constitutional questions. I am called upon to advise the President and White House officials on presidential prerogatives, the separation of powers, Executive authority, and the constitutionality of proposed regulations and statutes.”
Discussing private lawsuits in which she was involved, Miers noted two involving constitutional questions of court jurisdiction, one involving due process issues in class action litigation, and one involving the scope of the Seventh Amendment jury trial right in civil cases.
She also said that she had confronted equal voting rights issues while serving on the Dallas City Council. And, without details, she said she had served two years as a law clerk to a U.S. District Court judge, Joe E. Estes, and that in that capacity she aided in “researching and drafting opinions and orders” in the cases heard by the judge that implicated constitutional issues.
Beyond the questionnaire, the Judiciary Committee publicly released two documents that are sure to raise issues in Miers’ nomination hearings about her personal views on controversial constitutional questions — including abortion.
In 1989, when she was running for the Dallas City Coluncil, an anti-abortion group asked her to respond to a candidate survey. There were ten questions on the survey. Here were the most important, the first four:
“If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature?” Answer: Yes.
“If the Supreme Court returns to the states the right to restrict abortion, would you actively support legislation that would reinstate our 1973 abortion law that prohibited all abortions except those necessary to prevent the death of the mother?” Answer: Yes.
“Will you oppose the use of public monies for abortion except where necessary to prevent the death of the mother?” Answer: Yes.
“Will you oppose the use of City funds or facilities by any persons, groups, clinics or organizations to promote, encourage or provide referrals for abortions?” Answer: Yes.
She also responded that year to a questionnaire from Dallas Eagle Forum. Among other questions, she answered No to these two:
“Would you support an ordinance that would force individual property owners and businesses to provide accommodations to persons with AIDS (acquired immune deficiency) and those perceived to have AIDS?”
“Would you support an ordinance that would force businesses to hire persons with AIDS and those perceived to have AIDS?”
