Who is Harriet Miers?

10.06.2005 | Faculty, LawDespite some concern from the political right, White House counsel and legal trailblazer Harriet Miers will be confirmed for a seat on the Supreme Court "unless there's a smoking gun," predicts Lisa Kloppenberg, dean of the School of Law at the University of Dayton.

A constitutional law expert, Kloppenberg wrote the 2001 book, Playing it Safe: How the Supreme Court Dodges Hard Cases and Stunts the Development of the Law.

"I'm surprised by the vehemence of some conservatives' reaction. It's unknown whether she will move the court farther right or be like (Sandra Day) O'Connor and take measured rulings case by case," Kloppenberg said.

Jason Pierce, assistant professor of political science who has taught courses on the U.S. Supreme Court and researched judiciary systems in the United States, Canada, Britain and Australia, believes "more sparks will fly over the Miers' nomination than the Roberts' one.

"It appears that we could have our first evangelical Christian on the Supreme Court since the 1930s."

Still, lack of knowledge about Miers' judicial philosophy concerns some. "The conservative, evangelical wing of the Republican party was hopeful that Bush would put up a known rock-rib originalist, but because Ms. Miers is an unknown entity, the Bush administration is spending its time assuaging concerns within the conservative ranks that she is the real deal," Pierce said.

The upcoming confirmation hearings will prove critical, according to Pierce. "John Roberts' affable personality and encyclopedic mind disarmed many Senate Democrats. He effectively employed the 'Ginsburg rule,' an informal precedent established in Ruth Ginsburg's hearings where a nominee refuses to answer questions that raise issues that may appear before the court. Ms. Miers will face countless hypotheticals precisely because the paper trail is so thin," he said.

"If she employs the Ginsburg rule as effectively as Roberts, she's golden."

If Miers is confirmed, Kloppenberg believes neither she nor Roberts will "step out boldly in front of the country" on issues, particularly social ones.

"I think it's safe to say that they won't rock the boat, and if they do take the court in a more radical direction, my guess is that it would be in favor of large business interests. And it would be in favor of presidential power, more executive power," she told "Nightly Business Report" on Oct. 3.

Kloppenberg predicts Miers and Roberts will "stick with the direction the (William) Rehnquist court has taken the country." The Supreme Court has invalidated more than three dozen acts of Congress since 1995, a trend Kloppenberg believes will continue. "The court has been promoting states' rights at the expense of Congressional power," she noted.

"The difference is that they may advocate more power for the president. My sense is that they will be cautious and careful on issues, at least in the beginning. I think they'll be like O'Connor, who believed the court should not be ahead of the country on some of these issues. In the area of law and religion, such as cases involving school vouchers and display of the Ten Commandments, they may be more receptive to changing the content of the law. What role can religion play in the public square? I can see them both ruling in favor of religion in certain instances."

Kloppenberg praised the selection of a woman for the Supreme Court, noting that Miers' legal experience is solid, even though she's never been a judge.

"Enhancing gender diversity on the court is an important goal for the country," she said.

Contact Lisa Kloppenberg at (937) 229-3795 and Jason Pierce at (937) 229-2596.