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Miers' omissions

If Supreme Court nominee Harriet Miers cannot be candid with the Senate Judiciary Committee, she does not deserve to be confirmed.

Had it been a bar examination that Harriet Miers turned in, she would have flunked. Aspiring lawyers get second chances, but until now no Supreme Court nominee has needed one. If she cannot be candid with the Senate Judiciary Committee, she should withdraw her name.

The questions bearing on ethics led to glaring omissions. No nominee, not even the late Chief Justice William Rehnquist, has ever been burdened with so many potential conflicts of interest. He was an assistant attorney general, several steps removed from the president who appointed him. But Miers has been at George Bush's right hand throughout one of the most controversial administrations in history. As one attorney put it only half-jokingly the other day, she is plainly qualified to teach a law school course entitled "An expansive view of presidential power." But to sit in judgment on that power?

What advice did she give Bush on war powers, the Geneva Conventions, and church-state relations? Would she step aside when those issues materialize on the Supreme Court's docket? Unsurprisingly, Miers refused to document anything she might have told Bush under color of executive or lawyer-client privilege. But her response to recusal was a cursory promise to respect "the spirit and the letter of the law." Not even a first-year law student would expect to get away with that.

Another vital question asked whether she had ever said anything - and if so, what - to anyone in the administration concerning issues that might come before the court. That was, to be sure, a very broad question. But it deserved more than a cursory "No." It is impossible to believe that someone who served the president as counsel, deputy chief of staff for policy and staff secretary never remarked on abortion or any other recurring constitutional issue.

She also blew off the committee's request for information on anything that the administration, or people acting on its behalf, might have said to others "with respect to how you would rule if confirmed." All the world knows that Karl Rove led James Dobson to believe that she would overturn Roe vs. Wade. Yet there was no allusion to that, let alone an explanation, in her responses to the questionnaire.

Not even this administration could be so incompetent as to overlook the necessity of reasonable answers. Does it take for granted, perhaps, that at the end of the day the Republicans on the committee will submit tamely to doing whatever the president wants? If so, Chairman Arlen Specter has sent Bush a message that he would be unwise to ignore.

No wonder the ranking Republican and Democrat on the Senate Judiciary Committee asked Miers to resubmit parts of her judicial questionnaire with more detailed answers. Some committee members called her responses "inadequate," "insufficient" and "insulting."

Nominations are not like fine wine or cheese. They rarely improve with age. For Miers and the president, a moment of decision may be nearer than they think.

[Last modified October 21, 2005, 02:15:38]