Bush Nominates Miers to Supreme Court

Miers Would Replace Associate Justice Sandra Day O'Connor

Dr. Thomas Hansford , an assistant professor of political science at the University of South Carolina, was online Tuesday, Oct. 4, at 1 p.m. ET to discuss President Bush's nomination of White House Counsel Harriet Miers to replace retiring Justice Sandra Day O'Connor.

Hansford has published numerous articles on judicial politics and is co-author of a forthcoming book on the interpretation of precedent on the U.S. Supreme Court.

The transcript follows.

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Redway, Calif.: Dr. Hansford- Isn't it possible that Bush is more interested in a loyalist than a jurist for this nomination? This statement of hers; "George Bush is the smartest man I know," should send out red flags. This smacks of cronyism.

Dr. Thomas Hansford: Hi. Glad to be here.

The cronyism charge will certainly get thrown around. I think it is entirely possible, though, that Bush was mainly concerned with selecting someone about whom he has great private information and the Senate (Dems in particular) have very little. I also think that Miers, along with Roberts, will shift the Court in a more pro-executive power direction, and that probably matters a lot to Bush.

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Arlington, Va.: Wait a minute...is the President really expecting us to believe that he has no idea where his latest nominee stands on abortion when she has served as his counsel through issues like partial birth and stem cell? At what point should the press corps just groan in unison? Don't you think that is beyond contempt to expect the voters to believe that he hasn't discussed Roe with her?

Dr. Thomas Hansford: I would think Bush has a pretty good idea as to her position on privacy and abortion. But, there is a long tradition of nominees acting as if they have never thought about the more controversial constitutional issues. Believable? No.

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Boston, Mass.: After FEMA's disastrous response to Katrina, and the revelation that FEMA's chief was utterly inexperienced, isn't it somewhat politically dangerous for the President to nominate a candidate with little judicial experience? The subheading on every article I've seen so far is "Miers has no experience as judge." Isn't this something that the Democrats could take a stand on, linking it to Katrina and the recent FDA nomination blooper? Or is it more politically dangerous to nominate a candidate with a record of stated positions?

Dr. Thomas Hansford: Yeah, I think the Dems will try to score some points on this. The question is, will they actually vote to reject her based on her lack of judicial experience? I very interested to see how the ABA rates her. I would guess she'll get a Qualified rating (I see no way she'll get Well-Qualified), but if she were to get a rating of Not Qualified, then this will likely doom her nomination.

Also, keep in mind that even if the Dems "take a stand," as you put it, she will still get confirmed unless several Republicans defect.

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Fairfax, Va.: Today at his press conference the President was asked if over the decade of his association with Miers he had ever talked with her about abortion. At first he answered the question by saying he had no litmus test on abortion; then when it was asked a second time, he answered that he had not talked about abortion with Miers. In your opinion was the President being truthful or not? Was his answer credible?

Dr. Thomas Hansford: As I mentioned earlier, in my opinion this really isn't credible. But, the president wants to avoid conveying that he has any policy-oriented litmus tests. Except maybe when he is talking privately with concerned groups.

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Anonymous: Hello: Isn't the Court in session? How can they commence with only eight judges, what if there is a tie? Also, why was Roberts chosen as Chief Justice over sitting Justices with their accumulated experience? Thanks.

Dr. Thomas Hansford: The Court can go ahead and operate with only 8 justices and has done so several times in the past. If there are still only 8 when they are deciding a case and it looks like they will split 4-4, then they will likely hold a case over for reargument. That will allow the 9th to join them.

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Alexandria, Va.: Conservatives are complaining that this nominee is not a conservative in the mold of Justices Scalia or Thomas.

I think she's very much in the mold of Justice Thomas. The President who nominated her knows exactly how conservative she is, but there is no paper trail to allow attacks on her on that basis. Beyond the Thomas model, she can legitimately avoid answering almost any question on recent policy on the basis of lawyer-client confidentiality, since she is the President's Council. She can similarly avoid answering questions about any discussions she's had with George W. Bush since he was his attorney in the past.

A perfect stealth nomination.

A practical question is, if she was confirmed to the Supreme Court, how many of the cases that are likely to come up in the next few years would she have to recuse herself from, because of her work developing the government's side of those cases or issues?

Dr. Thomas Hansford: She does appear to fit the "stealth nominee" mold for the reasons that you mention. What is interesting about this is that this typically a tactic used by the President when the other party controls the Senate. Here, we have the President selecting a nominee about whom we (and presumably the Senate) know very little, even though there is a Republican majority in the Senate.

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Ft. Lauderdale, Fla.: Dr. Hansford:

Of course we've seen lot's of statements relevant to the fact that there have been other SCOTUS justices without actual experience as a jurist, and they've brought a fresh perspective to the bench; however, unlike a great many of the other previous non-judicial nominees, I can't see very much in the way of actual trial experience with this nominee nor even have I been able to ascertain if she's admitted to practice before SCOTUS - although that is mostly an honorarium.

What are your thoughts on this?

Dr. Thomas Hansford: I'm not sure how much trial experience she has. It is true that, historically, many justices had no prior judicial experience. But, typically these justices had held fairly high-profile positions, such as governor, attorney general, etc.

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Chicago, Ill.: What is the likelihood that Miers will be able to analyze substantive questions of Federal law without really any background in Constitutional issues?

Dr. Thomas Hansford: I would guess that it is going to be a lot harder for her than it was for Roberts. He had a lot of experience dealing with constitutional issues and clearly had little problem discussing a variety of constitutional issues when questioned by the Senate Judiciary Committee.

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Arlington, Va.: Re: "Hello: Isn't the Court in session? How can they commence with only eight judges, what if there is a tie?"

O'Connor is still on the bench and will remain until her successor is confirmed.

Dr. Thomas Hansford: Yeah. I got a little carried away with the abstract part of the question and ignored the present reality that O'Connor says she will stay on until a successor is confirmed.

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Arlington, Va.: I read during Roberts confirmation that being a lawyer isn't even a requirement for being a Supreme Court Justice so how come Judicial experience becomes so important?

Dr. Thomas Hansford: Anyone can become a justice as long as: 1) there is a vacancy, 2) the president nominates them, and 3) the Senate confirms. There's hope for you (and me) still.

The expectation that Supreme Court nominees have some sort of judicial experience is a relatively new one. Recently, nominees have come from Federal Appeals Courts. I think 2 things are behind this expectation: 1) presidents want to have a good sense as to how someone will decide cases. Without prior judicial experience, it is harder to know this. 2) Judicial experience (as long as there are no real red flags) is often equated with having the qualifications to serve on the highest court. Studies show, not surprisingly, that the more qualified a nominee is, the more likely they are to be confirmed.

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Charleston, S.C.: Dr. Hansford,

Thanks for taking questions today. From a political perspective, Bush has made a disastrous selection for the court. Conservatives were willing to overlook his rampant expansion of government spending, his nation-building fiascos et al primarily because of this selection. Now, he has failed the conservative movement once again and all these other issues will now be reevaluated by many Republicans, myself included. In your opinion, is George W. Bush truly a conservative?

Dr. Thomas Hansford: I'm not going to tackle the question of whether President Bush is a true conservative. But, I will say this. Miers may in fact be a very conservative justice, if she is confirmed. I (and just about everyone else, I suspect) just don't know yet. Again, Bush presumably has more information about her policy/legal preferences than just about anyone else and he may think he is picking another Thomas.

A lot of conservatives do seem to share your concern, though. That might be a function of the fact that there were a number of more-certain conservatives on the supposed short list.

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Washington, D.C.: Good afternoon Dr. Hansford. My question is why is it so hard for the President to find a minority that is qualified to serve on the Court? I heard him talking about diversity on the Court, does that mean white men and women are the only one qualified? How can you tell if they don't have any type of paper trail? Thanks for your response.

Dr. Thomas Hansford: Supposedly, Bush has been very interested in nominating Alberto Gonzalez. Maybe he wasn't chosen due to the potential torture scandal that is sort of simmering away. His nomination would surely bring such issues to the front burner.

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Alexandria, Va.: I've read that Ms. Miers has been involved with the American Bar Association and this is cause for concern for some conservatives. But is the ABA a "liberal" organization ? Other than rating Clarence Thomas "unqualified", have they done anything to deserve this epithet?

Dr. Thomas Hansford: Officially, the ABA is completely non-partisan and non-ideological. In the last 2 decades or so, conservatives have been making the argument that the ABA is left-leaning and that their ratings of judicial nominees have been affected. I have seen no hard evidence of this, though.

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Bethesda, Md.: Can the President's lawyer - who has called her boss the smartest person she knows - be expected to rule with even a semblance of impartiality on cases that involve the Bush administration? Will she be forced to regularly recuse herself? I supported the President's nomination of Roberts because he appeared to be open-minded and thoughtful about the law (in addition to being overwhelmingly qualified), but the Miers nomination seems like a veiled threat to judicial independence. The appearance of an independent judiciary is essential (hence the squabble a couple years ago when Scalia and Cheney went duck-hunting together). Does this nomination appear to you at all to threaten the appearance and reality of an independent judiciary?

Dr. Thomas Hansford: As I mentioned before, I think that both Roberts and Miers (if confirmed) will push the Court in the direction of allowing for increased executive power. This of course has implications for issues flowing from the war on terror. I'm not sure I'd necessarily equate this with the judiciary being less independent. You can independently decide that another branch of government can exert more power.

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Bethesda, Md.: In an article, someone (perhaps Ms. Miers' pastor) suggested that her method of interpreting the Constitution might be similar to her method of interpreting the Bible: by literally interpreting and accepting the text as given. Whether this is actually how Miers interprets the Bible or whether it is conjecture, is there anything in the nominee's record that points to a particular approach of constitutional interpretation?

Dr. Thomas Hansford: I haven't seen any indication as to how she chooses or would choose to interpret the Constitution. I'm sure that senators will ask her this and it will be interesting to see what she says. Keep in mind a few things. First, there is evidence that justices adjust the mode by which they interpret the Constitution in order to reach outcomes that they like. I'm not saying this always happens. But, there's evidence that it happens some times. Second, not all justices have particularly strong preferences for a certain, specific mode of interpretation.

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Bowie, Md.: What do the Democrats have to gain by attempting to defeat the nomination? Wouldn't that simply embolden Bush to nominate a more ideological conservative who would be less tolerable to the Dems?

Dr. Thomas Hansford: Good question. If the nominee will in fact be a very conservative justice, then the Dems would have a lot to gain by trying to defeat her. If she's going to end up being like O'Connor, Kennedy, or Souter, then the Dems shouldn't resist her nomination at all. The question is, which scenario is it? That's what everyone will try to figure out.

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Washington, D.C.: This morning, I heard an administration official taking a whack at members of the Supreme Court bar (and scholars of constitutional law), deriding them as insular "elites" in negative contrast to Ms. Miers who was busy being the first woman everything in the state of Texas.

I am troubled by this. Although I see the value of a diversity of experience on the bench, this class warfare angle and derogation of skills and experience is troubling. I'm trying to imagine if anyone would try to hire, say, a general practitioner as the head of a key surgical team, and laud his lack of experience as a selling point for the decision.

Dr. Thomas Hansford: It's funny - I've seen these sorts of comments, too, and it reminds me of what happened with one of Nixon's nominees. After becoming clear he wasn't qualified, one senator defended him by arguing that mediocre people needed representation on the bench, too.

That said, I've got no problem with Bush selecting someone outside of the usual Yale, Harvard, Stanford, circle.

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Bethesda, Md.: Many of us are wondering what Harriet Miers' role was in giving legal advice to the president while his staff was outing the CIA agent or Alberto Gonzales was deciding how much of the Geneva Conventions to shred. Are these subjects fair game for the Senate to bring up during a confirmation hearing?

Dr. Thomas Hansford: People will ask these questions and I bet she won't answer them. The White House will of course refuse to turn over any sort of confidential memos that might illuminate this.

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Southern Maryland: I was confused when Bush nominated Roberts to be Chief Justice. Although not required by the Constitution, I think traditionally the Chief had first served as an Associate Justice. Was there any precedent for replacing Rehnquist with Roberts?

Dr. Thomas Hansford: Several Chief Justices had not previously served as an associate justice. Warren and Burger, for example.

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Albany, N.Y.: If I had to guess I would say Roberts and Miers will be about as conservative as Breyer and Ginsburg are liberal, consistently so, but not as extreme as the party activists had hoped. Do you agree?

Dr. Thomas Hansford: There is so little information about Miers that when making a prediction about her future voting pattern I can really only go on one thing, and that is the ideological position of the appointing president. So my best guess is that she'll be fairly conservative. Maybe between Kennedy and Scalia? I would guess that Roberts will be in that same neighborhood.

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Clarksburg, Md.: Senator Reid sounded enthusiastic about the nomination, pointing out among other things that she "answers her phone on the first ring".

What in creation does he mean? I mean, I'm not saying the his bar for acceptance is low, but I'm betting nobody could limbo under it.

Dr. Thomas Hansford: The Dems so far seem to be holding their fire. I've seen it suggested that they had indicated to President Bush that she was acceptable back when he was still deciding who to select. I do not know if this is true or not. The Dems may just be waiting in the hope that they can gather additional information about her.

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Fairfax, Va.: Are the Democrats supposed to veto a nominee because he or she is conservative? I thought the president, as a result of winning the election, was allowed to pick someone who shares his political values. I thought the senators (including the Democratic ones) were supposed to ensure only that the nominee is capable, honest, and intelligent.

This is why elections matter. Many people voted for Bush because they want conservative Justices.

Dr. Thomas Hansford: The Constitution doesn't tell us anything more than the Senate advises and must consent for a nominee to become a Justice (or any other sort of federal judge). Senators of both parties consider the ideological leanings of a nominee when deciding how to vote on them. The president has the prerogative to nominate whoever he wants and the Senate has the prerogative to vote on him/her as it sees fit.

Election outcomes do have important implications. The outcomes of presidential and senatorial contests have implications for the makeup of the federal judiciary. But, there is no evidence (that I know of) that the average Bush voter supported him because of what he might do with nominations to the Court.

That's it for me. Thanks for the interesting questions!

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