The Nomination of Harriet Miers

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The Interim

With the nomination of Miers to fill the O'Connor vacancy, the president has responded to the potentially controversial setting by nominating a woman whom the president paints as eminently qualified, describing her as a woman of enormous accomplishment; she understands the law; she's got a keen mind." But in nominating someone with so little record regarding the prominent constitutional issues of the day, indeed so little public record at all, the president has created considerable anxiety, not so much among the Democrats and liberal groups that constitute the natural opposition to the president, but even more so among the most conservative of those who represent the normal supporters of the president. They see a missed opportunity to place someone on the Court with impeccable conservative credentials with a jurisprudence similar to that of Scalia or Thomas.

The nomination now enters a critical phase of the appointment process—the interim period in which judicial watch groups, interest groups, and members of the Senate Judiciary Committee engage in considerable scrutiny of the nominee, the likes of which most of us thankfully will never endure. Nominations of apparently well-qualified individuals have foundered when information comes to light during this period. If the accused in the American legal system are innocent until proven guilty, Supreme Court nominees are typically presumed qualified until shown otherwise. The adversarial system that is our legal system carries over into this nomination process, as it should. A nominee should be able to withstand the scrutiny that political adversaries and even supporters of President Bush will give this nominee. Keep in mind that what little opposition surfaced in the Senate against Justice O'Connor in her nomination by President Reagan came not from the left, but from "pro-life" advocates concerned about O'Connor's position on Roe v. Wade. In the first days of the Miers nomination, this would seem to be the case here as well.

What to Watch For

Far better than reality TV is reality Press. The Miers nomination is ultimately in the hands of the American people. The more interest that the public shows in the nomination, as revealed through the polls, the more the press will pay attention and the more information you will get regarding the qualifications of Harriet Miers and her suitability to replace Justice O'Connor. The presumption favors the nominee, the burden rests with those opposing the nomination to stir public opposition sufficiently to get the attention of the Senate. That's what this interim period is about. Watch for how the different advocacy groups treat the nomination, especially to whether outright opposition emerges. Look for key players, both in the Senate and outside, to comment on the nomination. For example, Senator Hatch (R-Utah) is a key Judiciary Committee member who has announced his strong support of the nomination. Hatch's record is one of being a lead cheerleader of Republican presidential nominations, so this support is no surprise. Another much newer Republican senator on the Committee, Sam Brownback (R-Kansas), has expressed considerable concern over the nomination. On the other hand, Harry Reid (D-Nevada), the Senate Minority leader, reportedly even suggested Miers to the president as a potential nominee.

The Advocacy Groups

Nominations become controversial when a nominee stirs opposition sufficient for the spending of considerable resources to battle the nomination. Opponents will attempt to rouse public opinion in an effort to stimulate the growth of opposition resulting in the acquisition of resources, especially money, to further that opposition and an effort to lobby various members of the U.S. Senate to oppose confirmation. In the case of Roberts, we may expect to see exploratory efforts at rallying opposition, namely, attempts to reveal aspects of Roberts' record and work that could raise concerns about his appointment to the Supreme Court. Supporters of Roberts will spend some money in an effort to prevent the opposition from generating any worrisome level of controversy that might stir public opinion and cause senators to take notice.

The first steps in this little dance of politics have been taken already. Even before the nomination came forth, Progress for America, a conservative advocacy group launched a television ad designed to pre-empt or limit the impact of any instance criticism of the president's nominee, especially of the type that occurred in the Bork nomination of 1987. Within hours of the nomination, an ad was produced supporting the nomination and arguing that the nomination deserved a vote in the Senate, i.e., should not be subject to any filibuster by the Democrats. Progress for America announced it would be spending $700,000 on its media campaign.

In the meantime, liberal groups have either begun to test the waters regarding whether opposition is viable or have already announced their opposition. MoveOn.org has created a link on its Web site announcing its opposition to the nomination and soliciting contributions to fund this opposition. The more established Alliance for Justice and the People for the American Way have voiced concerns about the nomination, suggesting that Roberts appears to be more conservative than O'Connor and calling for careful and complete scrutiny of the nominee by the Senate Judiciary Committee.

Any number of advocacy groups will enter the arena regarding the nomination, soliciting your support and vying for your attention. While some people have decried this intrusion of advocacy groups into the appointment process, it has actually served to democratize the selection of Supreme Court justices, deservedly focusing public attention on these extremely significant appointments. Moreover, these groups serve as a vehicle by which an individual may join with others so that one voice can become many, reaching both the public sphere and the United States Senate.

Major Players among Judicial Advocacy Groups
Organization	Description	Leader
Alliance For Justice	Created in 1979, the Alliance describes itself as "a national association of environmental, civil rights, mental health, women's, children's and consumer advocacy organizations." This liberal alliance sponsors two programs that deal with the Supreme Court. One is the Supreme Court Watch, which is currently running a series of podcasts on the Roberts nomination, and the other is the Judicial Selection Project, which deals specifically with judicial selection at the federal level.	Nan Aron has directed the Alliance since its inception.
Committee for Justice	The Committee for Justice was formed in 2002 as a group ". . . of eminent leaders, former government officials, legal scholars, and practitioners based in Washington, DC united to defend and promote constitutionalist judicial nominees to the federal courts and educates the public on the importance of judges in American life." Created by C. Boyden Gray, White House counsel for the first President Bush, the Committee for Justice was created to support Bush nominees to the federal courts.	C. Boyden Gray is founder and leader of this Committee.
Free Congress Foundation	The Free Congress Foundation describes itself as both politically and culturally conservative, dedicated to the cultural war that imperils ". . . our traditional, Judeo-Christian, Western culture. . . ." Its Center for Law and Democracy operates a Judicial Selection Monitoring Project that ". . . evaluates judicial nominees, reviews decisions of judicial appointees, assesses the Senate's role in the judicial selection process, and participates in the debate over the proper scope of judicial power."	Paul Weyrich has headed the Free Congress Foundation since its inception in 1977.
Judicial Confirmation Network	The Judicial Confirmation Network describes itself as ". . . an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States . . . . work(ing ) to ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote." In reality, it is essentially a Web-organization created specifically to support President Bush's nominees to the Supreme Court.	Gary Marx is executive director and Wendy Long is legal counsel.
MoveOn.org	MoveOn.org is the liberal newcomer in the Internet age. Citing its genesis in 1998 by Joan Blades and Wes Boyd, MoveOn.org is now a 501(c)(4) nonprofit that distinguishes between its political action and civic action efforts, providing "a way for busy but concerned citizens to find their political voice in a system dominated by big money and big media."	Besides Blades and Boyd, Carrie Olson and Eli Pariser head up the MoveOn.org team.
People For the American Way	People For the American Way is a 501(c)(3) organization describes itself as "committed to countering the forces of social discord and fragmentation with an affirmation of 'the American Way:' respect for diversity; freedom of thought, expression, and religion; equal justice; and a sense of community." Its Independent Judiciary program focuses on the Courts and is the source of its commentaries and information regarding the Roberts nomination.	Ralph Neas became the head of PFAW in 2000, but has been involved with Supreme Court nominations since Justice Stevens in 1975.
Progress for America	An outgrowth of the Bush-Cheney 2000 campaign and the telemarketing and fundraising firm of Feather Larson Synhorst-DCI, Progress for America is a 501(c)(3) organization that advertises it intends to ". . . advance a conservative legislative agenda to reform Social Security, confirm President Bush’s judicial nominees, overhaul the tax code and end lawsuit abuse."	Brian McCabe is president of the organization.

The Senate Judiciary Committee

During the interim period, it can seem like the Senate is doing little to move the confirmation process along. Rest assured, however, there is a flurry of activity in all of the offices of the members of the Senate Judiciary Committee, which will hold hearings on the nomination, most likely in September. Despite Republicans and Democrats having majority and minority counsel offices for the committee, respectively, staff for each senator on the committee are also gathering their individual files on Roberts. A lengthy questionnaire has been sent to Roberts that requires him to provide detailed information regarding all aspects of his professional and financial life and even some of his personal life. Each member of the committee will meet with Roberts personally and have the opportunity to ask questions that provide some insight to who this person is.

Despite the initial ad from Progress for America warning against any hasty judgment opposing the nomination, it is really the supporters of the president in the Senate who have largely made up their minds to support the nominee while others are more likely to take a wait-and-see attitude. We can expect most Republican senators on the Judiciary Committee to announce their support of the nominee and most Democrats suggest they will withhold judgment until the information has been gathered and the committee has had the opportunity to hold its hearings. What everyone hopes to avoid is anything akin to the Thomas confirmation hearings in which new information became public after the hearings had already begun, forcing more protracted hearings that proved embarrassing to the Senate and the Judiciary Committee.

The Nominee

John Roberts is a busy man. Between now and the hearings, he will visit most members of the U.S. Senate, with special attention to the 18 on the Senate Judiciary Committee. He will complete the questionnaire from the committee, that alone taking days to compile and complete. In addition to other public appearances and meetings, he must begin to prepare for the hearings. He will have considerable help from the staff in the Bush administration, likely from individuals both from the Justice Department and the White House legal counsel's office. They will set up mock sessions of the Judiciary Committee hearings to prepare him in answering questions from the committee.

The Press and the Public

Ultimately, no controversy can be sustained in a Supreme Court nomination without a divided public and without a press that recognizes the basis for a controversy and duly reports on it. Advocacy groups and politicians can appeal for your support or opposition to a nomination, but unless a sufficient number of the public is persuaded to the viewpoints of the opposition, no controversy will emerge. The endorsement of the president alone is sufficient to generate substantial public support in favor of the nominee. Without knowing anything about the nominee, it is typical that a majority of the public will accept on faith the characterization of the nominee by the president.

Opposition takes longer to unfold, as it should. It is right to expect the president will have nominated someone who at least has the professional competence to serve on the Court, although some would argue that has not always been the case. Keep in mind, however, that every nomination is political, even if the nominee may only be a pawn in the game. Opposition unfolds as the jurisprudential world view of the nominee becomes clearer. As individuals become more familiar with the character and views of the nominee, as argued by advocates and reported by the press, opposition with either take root or largely wither.

The confirmation is more democratized than ever before and you are part of that process. Inform yourself of the arguments put forth by advocates and information reported by the press. If you think Roberts should be confirmed either support some group advocating his confirmation and let your senators know your feelings or, and this will sound most uncivic of me, do nothing. Confirmation will occur in the absence of opposition. If there is no opposition to speak of, save your money. Most organizations you give to in support of the nomination will spend it on something else if they find they don't need to spend it in battling for the confirmation. If, on the other hand, you oppose the nomination, again support some group in opposition (strength in numbers and all of that) and let your senators know of your opposition. If you know your senators favor confirmation, then let senators on the Judiciary Committee who have not announced their support for confirmation know about your opposition. Opponents don't have the luxury of doing nothing.