By nominating Harriet Miers to replace retiring Justice Sandra Day O'Connor, President George W. Bush may have unwittingly performed a public service. People on both the left and right are wondering who Harriet Miers is, what she believes, and whether she is qualified to serve.
The time is ripe for a bipartisan consensus that Supreme Court nominees must answer senators' questions about their views on important legal issues to earn confirmation.
Neil S. Siegel is an assistant professor of law and political science at Duke Law School. Previously, he clerked for Associate Justice Ruth Bader Ginsburg at the Supreme Court of the United States and then-Chief Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit.
No reasonable person would buy a used car without first learning important information about how the vehicle functions. Yet Americans are routinely told that they have no right to know what a president's nominee thinks about basic constitutional issues, even though a lifetime appointment to the Supreme Court is at stake.
For instance, the Senate confirmed John Roberts without learning whether his current legal outlook is most like that of Justices O'Connor, Kennedy, Rehnquist, Scalia or Thomas. Almost without exception, everything Roberts said during his confirmation hearings was compatible with his being like any of them. But the same person cannot be all those justices. They span profoundly different breeds of judicial conservatism.
John Roberts' record was thin compared to that of most other recent nominees. But Harriet Miers' record makes the Roberts file seem overstuffed. And Roberts replaced Chief Justice Rehnquist, a change unlikely to move the Supreme Court significantly to the right.
Miers, by contrast, has been nominated to fill the most important seat on the court. O'Connor has cast the decisive vote in cases involving affirmative action, abortion restrictions, campaign finance reform, church-state separation and gender discrimination.
What does Harriet Miers think of those issues and myriad others? It's anybody's guess.
The White House will refuse to release documents from her service in the Bush administration. She has not worked in previous administrations in any capacity. She has not served as a judge of any sort. She has not signed relevant briefs or written law review articles. And with the exception of recent revelations about her past views on abortion, she does not appear to have otherwise taken stands on constitutional issues during her career. It is no coincidence that the president chose such a candidate.
So what should the Senate do? One option is to trust President Bush's judgment. Anyone who cares about our country's future should not regard that as an attractive alternative. No president warrants blind trust on matters of the utmost public importance, let alone a president with a disturbing track record of placing loyalty and friendship above competence and moderation.
A better option would be for senators on both sides of the aisle to agree that Harriet Miers will not be confirmed if she won't share her views on constitutional issues. She should not be asked to give promises about how she would vote in particular cases and for all time — like the corrosive promise President Bush offered his base last week that she is a true conservative whose views won't change over the next 20 years. But there is no intellectually defensible reason for Miers to refuse to share her assessment of past Supreme Court decisions.
For all the rave reviews John Roberts received for his performance during his confirmation hearings, few people seemed to notice that he offered no coherent justification for his refusal to discuss his current views of past cases. He already has strong beliefs; how would it compromise his judicial independence to reveal them?
We know the sitting justices' positions on past decisions, yet no one thinks their independence has been compromised when they hear future cases. Justices, moreover, are free to evolve over time, as many do. And in any event, any promises that a misguided nominee made during a confirmation hearing would be unenforceable.
The truth lies in political calculation, not legal reasoning. Roberts wouldn't talk because he knew that he had the votes and talking could only get him in trouble. Miers won't talk unless she is convinced that she won't get confirmed without sharing her views.
If senators won't demand answers now, they should agree to do so after Justice O'Connor's seat is filled. No one knows how the 2006 and 2008 elections will turn out. Both Republicans and Democrats have a long-term interest in precommitting to an institutional insistence upon learning a nominee's core legal beliefs. Neither party will control the presidency and the Senate forever.