Incomplete, Insulting: A Look At The Miers Questionnaire
By James G. Poulos
Posted On October 20, 2005

The Washington Post reports today on Sens. Specter and Leahy's "barely" concealed "irritation" with H.E. Miers's Responses to Senate Judiciary Committee Questions -- and, thereby, with Miers herself.

And though this reinforces the singularly awkward way in which HEM has managed to dissatisfy members of every political interest without, it seems, even quite trying, good taste suggests we make our own judgment based on her words themselves.

A read-through of the Miers responses, sure enough, reflects what has been suspected all along (that is, prior to her Senate hearing): although Miers may from time to time recite the right lines, she has been cast in the wrong role.

The exchange over judicial activism is instructive:

[Question for comment:] Some of the characteristics of this "judicial activism" have been said to include:

a. a tendency by the judiciary toward problem-solution rather than grievance-resolution; b. a tendency by the judiciary to employ the individual plaintiff as a vehicle for the imposition of far-reaching orders extending to broad classes of individuals; c. a tendency by the judiciary to impose broad, affirmative duties upon governments and society; 54 d. a tendency by the judiciary toward loosening jurisdictional requirements such as standing and ripeness; and e. a tendency by the judiciary to impose itself upon other institutions in the manner of an administrator with continuing oversight responsibilities.

[HEM response:] The role of the judiciary in our system of government is limited. While its role and its independence are essential to the proper functioning of our tripartite system of government, the courts cannot be the solution to society's ills, and the independence of the courts provides no license for them to be free-wheeling. And, of course, parties should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom and correctness of their preferred course. Courts are to be arbiters of disputes, not policy makers. As has been said many times, the role of the courts is to interpret law and not to make it. My own beliefs about these issues have been formed over many years, and find their roots in the beginning of my legal career. [...]

What is clear at first blush is that the writer of the question can muster more pith and substance in one sentence than Miers can find in several paragraphs. The aggravating tendency of Miers to pad her phrases with of-courses and as-has-been-saids seems at this point more than a simply stylistic problem. A paragraph like the following has all the specificity and sophistication of the final blue book page in a timed law school exam:

"Judicial activism" can result from a court's reaching beyond its intended jurisdiction to hear disputes that are not ripe, not brought by a party with standing, not brought in the proper court, or otherwise not properly before the court because of the case's subject matter. An additional element of judicial restraint is to be sure only to decide the case before the court, and not to reach out to decide unnecessary questions. The courts have the essential role of acting as the final arbiter of constitutional meaning, including drawing the appropriate lines between the competing branches of government. But that role is limited to circumstances in which the resolution of a contested case or controversy requires the courts to act.

Though accurate and even inoffensive to the non-activist mind, Miers' comment, one suspects, could be replaced by the drawing of a cloud and not lose its essence. But one looks toward the clouds in frustration as one encounters -- and has to read through -- the bravery and insight Miers marshalled to come up with this attack on bad law:

Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent.

The only surprise is that Miers did not cite directly to Dred Scott as an example of the limits of stare decisis. And one shivers when trying to decode what the hell it means to reverse law not only because doing so is "right" but because it's the "prudent" thing to do as well. Trumping jurisprudence with practical "prudence" is the svelte way O'Connor cobbled together the plurality grotesque of the Casey opinion, which refused to overturn Roe because if it did overturn Roe, the American people would suspect the Court of paying too much attention to the attitude of the American people. Neither Roe nor any other case, Brown and Scott included, should be overturned out of "prudence" -- bad law should be chucked out because it warps the internal legitimacy of law itself. By way of proof for this proposition one need go no further than the agonized nonsense and constitutional mockery we're all forced to endure on account of Roe itself. Anyone, pro-life or pro-choice, unwilling to trust abortion law to the crucible of federal democracy is living in the wrong jurisdiction, and the wrong country.

But in terms of raw ominousness the most striking petard to which Miers has bellied up is laid bare in the following:

Finally, my time serving in the White House, particularly as Counsel to the President, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the Executive Power. And by necessity my work has required that I deal with the power of Congress in relation to the Executive. The remaining, and essential, component in our system is of course the power of the Judiciary. The Judicial Branch has its own role to play in the separation of powers. It is part of the system of checks and balances. In interpreting the law in the course of deciding contested cases and controversies, the Supreme Court holds the Executive and Legislative Branches to their respective constitutional roles.

The words speak with a clarity that escapes Miers herself. Spinning -- if HEM is even capable of such deception -- her role as Chief Legal Henchwoman to the President as seperation-of-powers street cred is what we elitist intellectuals refer to as A Howler of the first rank. Pity that's the only thing first-rank about this blighted nominee.

Mr. Poulos is an attorney and writer living in Washington, D.C.

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