How to question Harriet Miers

A FEW DAYS ago I had occasion to visit the John Joseph Moakley United States Courthouse in Boston. The building is adorned with numerous inscriptions: the preamble to the US Constitution; the First, Fourth, Sixth, and 14th Amendments; excerpts from the constitutions of Puerto Rico, Rhode Island, Massachusetts, New Hampshire, and Maine, and great quotations carved in stone.

I stopped to read and think about the two inscriptions at the entrance stairways of the courthouse, one by Justice Louis D. Brandeis, the other by Justice Oliver Wendell Holmes. I then walked through and around the building and read others.

All of them, from the first by John Adams in 1776 to the last by Justice Stephen Breyer in 1991, are deeply moving. They are part of our rich history and legal tradition, a ''democratic conversation," in the words of the courthouse brochure. And so I offer a suggestion: Suppose the members of the Senate Judiciary Committee were to spend less time asking questions a nominee to the Supreme Court would either choose not to answer, deem ''inappropriate," or just plain evade. Suppose instead they were to engage with the nominee in a conversation about the quotations from Boston's federal courthouse. Wouldn't the members of the committee and we, the public, learn more about the nominees' views than we do from questions that go unanswered?

Just over there, at the entrance stairway, is a statement by Oliver Wendell Holmes, made in 1881 before he was elevated to the Supreme Court: ''The life of the law has not been logic: It has been experience." And from the brochure, we learn that Holmes went on to say, ''In order to know what [the law] is, we must know what it has been and what it tends to become." In Holmes's view, then, the law is alive and ever-changing.

Does Harriet Miers stand with Holmes or does she find his statement wanting, thinks Holmes ''too activist" a justice? Let's talk that through with Miers.

And let's have a look at the words of Justice Louis D. Brandeis and talk about the role of the Executive Branch and the application of executive power. Here is what he said in 1914: ''Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole world by its example." Brandeis, the brochure notes, went on to say, ''In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously" and ''if the government becomes a lawbreaker, it breeds contempt for law . . ." Does that statement inform our discussion about the application of the Geneva Convention and, if so, how?

Or we might focus on and discuss what Justice Frankfurter in 1951 wrote, in words that some would argue apply to ''enemy combatants" and others: ''No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it." He went on to emphasize that ''the validity and moral authority of a conclusion largely depend on the mode by which it was reached" and, as the brochure states, ''He warned that a fair process is especially critical 'at times of agitation and anxiety, when fear and suspicion impregnate the air we breathe.' " Does Miers agree with Justice Frankfurter? If not, how would she amend his statement?

There are more than 30 engravings on the Moakley Courthouse. Every one is both a witness to and a maker of history. It would be useful for the US Senate to know what Miers thinks about those statements, statements that the designers of the courthouse considered significant to the understanding of the role of law and the pursuit of justice.

In the jury assembly hall of the courthouse are inscribed the words of Justice Brandeis: ''Those who won our independence believed . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty and that this should be a fundamental principle of the American government."

Applying those words in the forthcoming hearings would enable the citizenry to listen to the discussion and to be educated in the issues involved. Such a ''democratic conversation" would be invaluable, far more useful and instructive than yet another round of predictable questions and equally predictable responses.

Rashi Fein is professor emeritus of the economics of medicine at Harvard Medical School.