Thursday October 27, 2005

What Happens After Harriet?

UD Supreme Court Experts Say Meirs' 'Constitutional Philosophy' Led to Surprise Withdrawal; Predict What Happens Next.

The chorus of critics won out as Texas lawyer and White House counsel Harriet Miers withdrew her nomination to the Supreme Court, putting the Bush Administration in full-tilt spin as it tries to regroup, according to experts at the University of Dayton.

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 "political pragmatism is behind this decision."

"The White House has refused to release documents to the Senate that Miers produced during her White House tenure under the executive privilege rule," according to Pierce. "This rule says that communications between a president and his advisers must remain confidential. Executive privilege is at stake, but Bush wouldn't sacrifice this nominee for some abstract constitutional principle that the White House foresaw as problematic with Miers from the get- go."

Lisa Kloppenberg, dean of the School of Law at the University of Dayton, believes Miers stepped aside to help the president save face.

"This is a huge political blow and an embarrassment to the president at a time when there are so many other things the president is dealing with like high gas prices, the Gulf coast and the indictments. With his next nominee, the president should appease his base."

Kloppenberg, a constitutional law expert, wrote the 2001 book, Playing it Safe: How the Supreme Court Dodges Hard Cases and Stunts the Development of the Law. She adds that Miers' record was relatively unknown and she had no constituency to speak of that could offer her a broad base of support.

"Other nominees have had no judicial records but they at least had some form of written record," Kloppenberg said. "The danger is the courts are so politicized that they lose the trust of the people. Will the courts no longer be seen as fair and impartial?"

Both Kloppenberg and Pierce believe this process may have provided a litmus test for the conservative base when pushing nominees.

"Miers and Bush realized that her nomination faced an uphill battle, with uncertainties growing in recent weeks over her qualifications," Pierce said. "My bet: Bush rightly returns to the bevy of federal appellate judges for his next nominee."

Contact Lisa Kloppenberg at (937) 229-3795 or lisa.kloppenberg@notes.udayton.edu; Jason Pierce at (937) 229-2596 or jason.pierce@notes.udayton.edu; or in public relations, Linda Robertson at (937) 229-3257 or robertson@udayton.edu.