Roger J. Miner, 77, a veteran member of the federal bench who was known for his outspoken criticism of what he viewed as the politicization of the process by which federal judges are chosen, died Feb. 18 at his home in Hudson, N.Y. He had a heart ailment, said his son, Mark Miner.
Judge Miner was nominated by President Ronald Reagan to the federal trial bench in New York, and Reagan elevated him in 1985 to the U.S. Court of Appeals for the 2nd Circuit.
After the turbulent proceedings in which the Senate rejected Reagan’s nomination of Robert H. Bork to a vacancy on the U.S. Supreme Court, Judge Miner was widely reported to be one of the federal judges considered by the White House to fill the seat. The nomination eventually went to Anthony M. Kennedy.
Judge Miner, who was said to have been considered when later vacancies arose on the high court, remained on the 2nd Circuit until his death, serving since 1997 as a senior judge with a reduced caseload.
Over the years, he built a reputation for measured rulings and courtroom conduct and as a judge who showed little tolerance for the intrusions of politics into judicial chambers.
In legal circles, however, he was perhaps best known for his willingness to express his views in public about the federal judicial nomination process.
His commentary was notable not only for its bluntness but for the fact that it broke with the tradition of silence about the process among members of the judiciary.
“The Constitution simply is not working as the framers intended,” Judge Miner wrote in the American University Law Review in 1992, as reported by the New York Times. “Merit has been more or less consigned to the back seat.”
Particularly dismaying to Judge Miner was what he perceived as a tendency for presidents to nominate federal judges who share their political views and who have a history of ruling accordingly.
In the view of many legal observers, this tendency owes much to the controversy surrounding the 1987 nomination of Bork, a former solicitor general who had long decried what he considered to be liberal activism in the judiciary.
The reasons for the selection of one judge over other jurists for the high court often remain obscure and are not publicly documented.
However, Jonathan Turley, a law professor at George Washington University, said many experts take the view that Judge Miner was not nominated largely because he “did not hide” his conviction that women have a legal right to seek an abortion. That view would have put him at odds with Reagan and many conservative voters.
In a telephone interview Sunday, Judge Miner’s wife, Jacqueline Miner, a former vice chairman of the New York State Republican Party who also worked in the Reagan administration, recalled advising her husband against advertising his position during the vetting process.
He replied that his “reputation is not worth a seat on the Supreme Court of the United States,” she said Sunday.
Although generally regarded as a conservative judge, he was known throughout his career for displaying an independent streak.
On the appeals court in 1996, for example, he voted to strike down a New York law that made it a crime for a doctor to help a patient commit suicide.
“Physicians do not fulfill the role of ‘killer’ by prescribing drugs to hasten death any more than they do by disconnecting life-support systems,” Judge Miner wrote in the majority decision. “What business is it of the state to require the continuation of agony when the result is imminent and inevitable?”
Roger Jeffrey Miner was born April 14, 1934, in Hudson.
After serving in the U.S. Army Judge Advocate General’s Corps in Japan and Korea in the 1950s, he joined his father’s law firm in Hudson, called Miner and Miner. He was the corporation counsel for the city of Hudson in the early 1960s before becoming Columbia County’s district attorney in 1968. He was elected to the state Supreme Court in 1976.
Survivors include his wife of 36 years, Jacqueline Mariani Miner of Hudson; two sons, Larry Miner of Santa Monica, Calif., and Mark Miner of Austin, Tex.; two step-sons, Ronald Carmichael of Alexandria and Ralph Carmichael of Phoenix, Ariz.; a brother; and six grandchildren.
Judge Miner once made a speech in which he discussed possible improvements for the judicial nomination system. He referred, in jest, to a Scottish approach that Benjamin Franklin raised at the Constitutional Convention.
In that process, lawyers selected their best colleague and made him a judge — “in order to get rid of him, and share his practice among themselves.”