Miers foes see law questions as way to derail nomination
Groups aim to make her seem unqualified
WASHINGTON -- Some of the advocacy groups that are concerned about Supreme Court nominee Harriet E. Miers's lack of a record on social issues are favoring a new approach to thwarting her nomination: Asking the nominee, who has no judicial experience, complex questions about constitutional law and hoping she trips up.
Groups are circulating lists of questions they want members of the Senate Judiciary Committee to ask Miers at her confirmation hearings. The activists' thinly veiled hope is that Miers will reveal ignorance of the law and give senators a reason to oppose her.
''We are trying to establish that there are thousands of questions that law students routinely deal with . . . and if she can't get to that level, it doesn't matter if you're for the left or the right, at that point it's a fait accompli that she is not fit for the office," said Eugene DelGaudio, president of Public Advocate, a conservative profamily group.
The groups oppose Miers because her scant record offers them insufficient proof that she would be a staunch conservative. But, mindful that judicial nominees resist talking about ideology, they believe that a better strategy is to make her appear unqualified.
Miers's supporters counter that she will demonstrate that she is well versed in broad issues of constitutional law. They said that trying to catch her with arcane questions would be inappropriate, and may elicit sympathy for her.
Still, several key Republicans -- including Senator Arlen Specter of Pennsylvania, chairman of the Judiciary Committee -- have said they intend to closely question Miers on her knowledge of constitutional issues. And the fact that groups are zeroing in on her qualifications raises the stakes for Miers's performance at the hearings next month.
Some of the questions from social conservative groups are similar to law school exams, aimed at testing Miers's knowledge of legal doctrines. Others demand specific information about her credentials, framed in a skeptical voice.
Concerned Women for America, one of the nation's largest antiabortion groups, wants senators to ask: ''All attorneys are required to attend and complete mandatory continuing legal education courses. How many of Miss Miers's courses have been on the subject of constitutional law? . . . What were the subjects, what were the courses and dates of participation?"
Public Advocate wants senators to ask Miers: ''Have you ever read Sir William Blackstone's Commentaries on the Laws of England? If so, what was Blackstone's view of the foundation of the common law? If not, why not?"
Miers studied law at Southern Methodist University. She was a corporate attorney in Dallas, rising to the head of her firm and the Texas state bar association. But most of her career has been spent on business issues, not constitutional matters.
Bruce Fein, an attorney and former Reagan administration aide who opposes Miers's nomination, said he thinks Miers is vulnerable to close questioning on Supreme Court cases. He predicted that it would be easy for senators to ''make a fool of Miers" by marching through constitutional cases and asking her to explain.
''If there is an intent to show that she just knows none of these things, I think they'll have to recess and see if there is a gracious way for her to withdraw," said Fein, who helped prepare Justice Sandra Day O'Connor for her confirmation hearing in 1981. ''I just can't imagine a nomination where a candidate is unable to answer 40 questions that someone with a reasonable immersion in constitutional history would have on the tip of their tongue. The Supreme Court isn't for on-the-job training."
But Ronald Cass, dean emeritus of Boston University School of Law and a Miers supporter who is cochairman of the conservative Committee for Justice, said that attacking her with law-exam questions would be ''childish." Miers, he said, will do fine on addressing broad issues, and the hearing should focus on her legal philosophy, not on her knowledge of specific cases.
''I think the whole exercise smacks of a silly fantasy of how to embarrass somebody you don't like," Cass said. ''I think it would be seen very widely as an improper way to conduct a Senate confirmation hearing."
Still, there are growing indications that Miers's basic competence will be a central focus of the confirmation hearings.
Specter said Sunday on ABC's ''This Week" that he will vigorously question Miers about her grasp of constitutional matters, such as privacy and abortion law, because she has yet to prove that she can handle such ''very esoteric, complicated subjects that require a great deal of background."
''The jurisprudence is very complicated and I will be pressing her very hard on these issues," Specter said.
And after meeting with Miers last week, Senator Jon Kyl, an Arizona Republican who sits on the Judiciary Committee, wrote in his blog that Miers ''has a lot of homework to do" before the hearings begin.
''Both Democrats and Republicans should -- and I suspect will -- focus on her qualifications and whether she is prepared to grapple with the constitutional issues of our day," Kyl wrote.
In another sign that Miers's supporters may be worried about perceptions of her Supreme Court knowledge, the Republican National Committee last weekend rebutted reports that Miers had told a senator that her favorite Supreme Court justice was former chief justice Warren Burger.
Few scholars would name Burger, whose opinions are generally considered undistinguished, as a leading light. Conservatives were particularly alarmed because Burger voted for the Roe v. Wade decision granting abortion rights.
In its press release, the RNC clarified that Miers had just named Burger as one among several favorites, and that she only meant Burger was important ''in terms of his role in the administration of justice."
Meanwhile, conservative criticism of Miers's nomination continued yesterday.
''Bush has turned his finest hour into a political debacle," said Mathew D. Staver, president of Liberty Council, a conservative group. ''The reverberations from his decision to nominate Harriet Miers have political consequences, if not corrected, that will haunt the Republican Party for some time."
The grass-roots conservative attack on the White House underscored questions about how the Bush team is handling the Miers's confirmation. Many of the prominent conservative lawyers who took roles in defending the nomination of John G. Roberts Jr. have remained silent this time, and the team guiding Miers has not always done her favors.
Last week, for example, former senator Dan Coats, an Indiana Republican chosen by the White House to shepherd Miers's nomination through the Senate, drew ridicule when he appeared to suggest to CNN that Miers would give a voice on the court to nonintellectuals.
''If great intellectual powerhouse is a qualification to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole," Coats said.
Miers's supporters have also accused her critics of sexism and elitism. Laura Bush defended Miers yesterday on NBC's ''Today" show as a role model to young women.
''That's possible, I think that's possible," Mrs. Bush said when asked whether criticism that Miers lacked intellectual heft was sexist. 