The Trouble With Harriet

Editorial

New York Times

October 20, 2005

When President Bush first nominated Harriet Miers to the Supreme Court, many people who were worried about her positions on hot-button issues cloaked that concern with talk about her credentials. But as time went on, it became increasingly clear that ideology aside, the qualification question looms large. So far this nominee has yet to demonstrate that she can even satisfactorily fill out a questionnaire about her attitude toward important constitutional questions. This page has urged that Ms. Miers be given a fair chance to prove that she is worthy of a lifetime appointment to the Supreme Court. But based on the evidence so far, it is getting hard to believe that she is.

President Bush began his campaign of support badly, by talking about their close association and insisting that "I know her heart." It is only natural to have a high opinion of one's friends, but we have already learned that Mr. Bush is an imperfect judge of capability. The White House also wasted a lot of time early on emphasizing Ms. Miers's church membership, which - in addition to looking disturbingly as if there were a religious test for high office - said nothing about whether she would be fit to decide Supreme Court cases.

Ms. Miers had an opportunity to win over the skeptics this week with her answers to the Senate Judiciary Committee's questionnaire. But her responses were so unimpressive that the top Republican and Democrat on that committee took the extraordinary step yesterday of instructing her to give it another try, this time with more "particularity and precision." She thus became perhaps the most important judicial nominee in history to be offered what amounts to a do-over on a take-home quiz.

Question 17, for instance, asked Ms. Miers to describe any constitutional questions she had addressed as a public official. That gave her an opportunity to write at length about war powers, federalism, church-state issues and similar matters that must have crossed her desk. But in describing her work as White House counsel, she offered only a few terse lines that revealed close to nothing. Her answer to a question about "judicial activism" was a model of windy obfuscation.

Her courtesy calls on senators have done no more to help her cause. The early reports are that she has hardly dazzled people with her legal mind, and senators from both parties have been frustrated by her refusal to give her views on even the most basic points of law.

There was an embarrassing bit of confusion this week after Ms. Miers met with Arlen Specter, the Senate Judiciary Committee chairman. He told reporters that she had endorsed Griswold v. Connecticut, a widely accepted decision that established a right to privacy covering purchases of contraceptives by married people. But her handlers denied it, and Mr. Specter ended up saying, somewhat unconvincingly, that he must have been mistaken.

President Bush has either picked a court nominee so underqualified that she cannot even go through the motions competently, or he believes that once he gives his personal endorsement to a candidate, the Senate will silently fall into line. But the founding fathers made it clear that filling vacancies in the judicial branch is the joint responsibility of the president and the Senate, and at this point the senators are beginning to look downright offended.

Ms. Miers will have another chance to prove herself at her Senate confirmation hearings. If she wants to convince the American people that she belongs on the court, she needs to make a much better case for herself than she has so far.