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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, October 3
A Surprising Choice
To the surprise of most observers, including me, President Bush announced White House counsel Harriet Miers as his choice to succeed retiring Supreme Court justice Sandra Day O'Connor. The N.Y. Times has this profile. Many think Miers to be an odd choice, given that she's never served as a judge and has only two years experience in elected office, on the Dallas City Council. Her principal distinctions appear to be having been the first woman partner at a major Texas law firm and the first woman president of the State Bar of Texas -- no small accomplishments, to be sure, but not ones that would seem to prepare one for the type of work she'd do on the U.S. Supreme Court.

Because she would be replacing Justice O'Connor, the swing vote on so many critical issues, Ms. Miers nomination is in a sense of even more importance than that of Chief Justice Roberts, who was replacing the reliably conservative Chief Justice Rehnquist. One evident advantage of the Miers nomination, from the White House's perspective, is that it gives the Democrats a small target. As with now-Chief Justice Roberts, there appears to be relatively little in her record to attack. The other side of that coin is that conservatives hoping for someone to shore up the right wing of the Court don't know quite what to make of Ms. Miers.

The first-day reaction to Miers has thus been decidedly mixed. Senate minority leader Harry Reid, who apparently suggested her as a potential nominee, praised Ms. Miers effusively. On the other hand, conservatives were split. David Frum is "disappointed, depressed, and demoralized," worrying that "there is no reason at all to believe either that she is a legal conservative or--and more importantly--that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left." Fred Barnes, on the other hand, says that during talks over judicial nominations "it became clear to Bush that she had exactly the philosophy of judicial restraint he favors and that she wouldn't 'grow' as a justice and turn into a swing vote or a liberal." (Interesting, by the way, that some conservatives' opposition to evolution applies even to judicial nominations.)

What do we know about Ms. Miers' views on election law and voting rights issues? Well, about as much as we know about her views on anything else: practically nothing. But for critics of incumbent gerrymandering, there's a small bit of encouraging news coming from her days on the Dallas city council. The A.P. reports that:
Miers criticized colleagues who wanted to keep their old districts. Some colleagues thought Miers' attacks on the status quo and the power of incumbents were well-intentioned but naive.
Ms. Miers confirmation hearings should be interesting. Not because she'll reveal anything about her views (she won't). And not because there's much doubt over the outcome (she'll be confirmed, absent some unexpected revelation). The hearings will be interesting -- much more so than the Roberts hearings, I expect -- because Ms. Miers will face a greater challenge than did then-Judge Roberts in gracefully not answering questions that Senators ask. Roberts had argued before the Supreme Court 39 times, and was thus extremely well-versed in the complex constitutional matters that are the bread and butter of the Court's work. This made it easy to demonstrate facility with the law in response to questions, without disclosing anything about his own views. He also had a sense of humor, probably also honed during his years as an appellate advocate, which he used to take the edge off what would otherwise have been tense moments in the hearing.

Ms. Miers' principal experience is not as a Supreme Court advocate but as counsel to corporate clients. This sort of work presents its own challenges, but they are of a sort that's markedly different from what she'll face during her confirmation hearings. While undoubtedly very smart, she won't likely be as conversant with the difficult constitutional issues that she'll be grilled on during her hearing. How effective will she be in responding to questions without disclosing anything about her real views and judicial philosophy? I'm anxious to find out.

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