Saturday, October 15, 2005

CWA's Jan LaRue Has Some Cautionary Questions Re: Harriet Miers' Qualifications

CWA's Jan LaRue Has Some Cautionary Questions Re: Harriet Miers' Qualifications

Monday, October 10, 2005

By Jan LaRue, Chief Counsel, Concerned Women for America

When it comes to Supreme Court nominations and Republican presidents, pro-family conservatives have a lot in common with the gullible
Charlie Brown.

CWA's Jan LaRue says it's not enough that Harriet Miers is an evangelical Christian.

Jan LaRue of Concerned Women for America has written a cautionary memo regarding the nomination of Harriet Miers for Supreme Court Justice. As a friend and former co-worker of Jan's at CWA, I have the highest regard for her judgment and integrity. We agree with LaRue--who strongly supported Judge Roberts' nomination for Chief Justice--that these questions about Miers deserve to be answered. There is simply too much at stake--and way too many unknowns surrounding this nomination--for us to remain silent or merely trust the President on this one.

Sometimes it seems that when it comes to the Supreme Court and Republican presidents, conservatives are like Charlie Brown, trying to kick that football after Lucy promises, each time, that she won't pull it back. How many times in the past have we been assured that GOP nominees to the highest court were judicial "conservatives," only for them to become reliable liberal votes on the Court? Kennedy, O'Connor, Souter--the list brings pain to the heart of every conservative.

We who advocate for "family values" and the lives of the unborn should be vigilant regarding the Miers nomination. I am troubled by the lack of information about Miers, and her reported acquiescence to a series of speeches at Southern Methodist University law school by radical, pro-abortion speakers such as Gloria Steinem.

At the bottom of this e-mail are some links to articles pro and con on the Miers nomination.--Peter LaBarbera, Illinois Family Institute.


News Release, Oct. 10, 2005

CWA: What We Need to Know About Harriet Miers

WASHINGTON, Oct. 10--Concerned Women for America (CWA) has released a memorandum explaining its evaluation of information about Harriet Miers, President Bush's nominee to succeed Supreme Court Justice Sandra Day O'Connor. The memo explains why CWA is unable to endorse the nomination at this time based on current information about Miss Miers. It is available on CWA's Web site,

"CWA staff have been heavily involved in evaluating Miss Miers' background and qualifications," said Jan LaRue, CWA's chief counsel. "We have learned nothing new that allows us to endorse her at this time. Whether we can eventually support her will depend on answers to questions raised in our memorandum and what is learned during the hearing process. We believe the American people deserve convincing evidence that Miss Miers can be trusted with a lifetime appointment to the Supreme Court.

"Nothing we have seen or heard establishes Miss Miers' knowledge of and experience in constitutional law. Much is made of her leadership within the American Bar Association, an organization that is hardly known for opposing the 'living theory' of constitutional interpretation and judicial activism," LaRue concluded.

"While we share Miss Miers' evangelical faith, we find the continual emphasis on it by her supporters to be inappropriate and patronizing," LaRue said. "It offends the Constitution."

Every judicial nominee deserves a dignified hearing and nothing less than a swift, up or down vote at the conclusion of the Senate Judiciary Committee hearing. The American people are entitled to fairness from judges and from senators who sit in judgment of them.

Concerned Women for America is the nation's largest public policy women's organization.


The Nomination of Harriet Miers to the U.S. Supreme Court

OCTOBER 10, 2005




Concerned Women for America (CWA) initially responded to President Bush’s nomination of Harriet Miers on October 3 by expressing our cautious optimism and hope that we would be able to support the nomination. This memorandum expresses our assessment of what has transpired since the President made his announcement and of any new information about Miss Miers.

The media are brimming with coverage about Miss Miers’ background and qualifications and the ensuing debate over her nomination. CWA staff members have been heavily involved in evaluating information about Miss Miers and in expressing CWA’s response.

At this time, CWA cannot endorse the nomination but we remain open to persuasion. We do not believe that we have learned anything more about Miss Miers that justifies endorsement. We have not and will not express any criticism of Miss Miers personally or of the President. A principled position stands or falls on its own merits. Personal attacks serve only to undermine and discredit.

Several good friends have strongly endorsed the nomination. That is their right, and we continue to respect and count them as friends. Some have opined that those who haven’t endorsed the nomination have succumbed to “elitism” and “sexism” or a failure to trust the President. Nothing could be further from the truth with respect to CWA’s position.

CWA has never required that nominees we support must have Ivy League credentials. Many of those we have supported for the circuit courts and the Supreme Court did not attend Ivy League law schools, for example Judges Janice Rogers Brown, Michael McConnell, Edith Jones, Michael Luttig, Priscilla Owen and Emilio Garza.

Likewise, it would be unwarranted to withhold endorsement on the basis of an Ivy League education. Our support of Miguel Estrada, Judge Samuel Alito, Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas repudiate the notion.

Secondly, we evaluate nominees on the same basis regardless of whether they are women or minorities. We reject the notion that a nominee should be selected or rejected on the basis of sex, race or ethnicity. Neither equal justice under law nor one’s judicial philosophy is dependent upon such factors. The symbol of Justice wears a blindfold to communicate that people stand equal before the courts.

We do not agree that conservative “activists” care only about how a judge will vote on issues but only conservative “intellectuals” care about the rationale and process by which a judge arrives at a decision. CWA opposes judicial activism whether it is liberal or conservative. No one should use the position of a judge to advance a personal policy preference. To do so disrespects the separation of powers mandated by the Constitution and the role of the judiciary.

A qualified nominee for the Supreme Court must have more than intellectual ability and legal competence. It requires a deep knowledge of and experience in constitutional law. That must be coupled with the ability to stand one’s ground as a stalwart and persuasive voice for interpretation of the Constitution faithful to its text and the Founders’ intent. We believe the best evidence of that is a record of having done so.

White House representatives and other supporters of Miss Miers immediately announced that she is an evangelical Christian. There is continual emphasis on her faith and the advantage of having an evangelical Christian on the Supreme Court. We do not doubt Miss Miers’ faith in Christ--we share it.

Like CWA, most of those emphasizing Miss Miers’ faith have resisted any attempt to impose a religious test on any person seeking public office. The Constitution forbids it. We find it patronizing and hypocritical to focus on her faith in order to gain support for Miss Miers.


President Bush continues to express that his reasons for selecting Miss Miers’ are his personal knowledge of her integrity, character, intellectual ability, her legal career and accomplishments as first woman president of the Texas State Bar, her influential positions within the American Bar Association (ABA), her position as White House Counsel for the past eight months and her commitment to judicial restraint.

The President stated in his press conference in the White House Rose Garden on October 4 that Miss Miers is the “best qualified person in the United States.” He said he liked the idea that she was from outside “the judicial monastery.” He promised that “when it’s all said and done, the American people are going to know what I know.”


At this point we do not know.

We do know that there are several men and women, some of whom are mentioned above, that we believe are much more highly qualified than Miss Miers. They share Miss Miers’ personal character qualities of integrity, intelligence, a generous spirit and public service but their professional experience is far more extensive than hers.

More importantly, they have records proving that they are committed to textual interpretation of the Constitution and the limited role of a judge. They meet the President’s criteria for a Supreme Court justice. Many were confirmed after being nominated by him for positions on the circuit courts of appeals.

With all due respect to the President and those who place great weight on selecting a nominee from outside “the judicial monastery,” we do not agree that those who are bring perspective and life experience to the bench that judges lack.

Judges, like others, were born into a family, attended school, socialize, acquire employment, marry, vote, serve in other branches of government, work in the private sector, experience loss of loved ones, know the experience of being a mom or a dad, suffer health problems and other hardships, interact with ordinary people, watch movies, attend concerts and sporting events, read books that have nothing to do with law and write something other than legal opinions.

Judge Janice Rogers Brown is a classic example of someone who has experienced and overcome some of the most challenging adversities. She is the daughter of an Alabama sharecropper, an African-American single mother who worked her way through college and law school. She was appointed to and re-elected by a large majority of Californians to the State Supreme Court.

During her confirmation hearing after President Bush nominated her to the U.S. Court of Appeals for the D.C. Circuit, her intellectual ability, knowledge of the law and record of judicial restraint were compellingly demonstrated. Her judicial temperament and grace under fire shown like the sun. She is not what some have referred to as eastern elitist. Judge Brown is notably more qualified to sit on the Supreme Court.


There is no reason to settle for less when there are so many excellent individuals from which to choose. The President says he knows that Miss Miers is the best-qualified person. We do not presume to know what President Bush knows about Miss Miers, and whether we know does not mean that she is not the best-qualified person.

We believe it is reasonable and necessary to be certain that Miss Miers is at least well qualified for the Court before we can endorse her nomination. That requires credible evidence.

As the Scriptures state, “Now faith is the substance of things hoped for, the evidence of things not seen” (Hebrews 11: 1, New King James Version). Contrary to popular opinion, faith does not mean believing despite any evidence. Biblical faith appeals to evidence. Man should not expect others to exercise faith without evidence (Acts 1: 3: “After his [Christ’s] suffering, he showed himself to these men and gave many convincing proofs that he was alive. He appeared to them over a period of forty days and spoke about the kingdom of God.” [Emphasis added.]) when God does not do so.


Until 2001, Miss Miers’ legal experience was as managing partner of a large corporate law firm. Corporate law, like several other areas of legal practice, does not generally involve constitutional issues. When it does, the lawyer does not educate herself on the issue beyond what is required to adequately represent her client.

  • Was Miss Miers’ corporate practice primarily transactional (contract writing and negotiations) or was it primarily litigation? How many of her cases involved constitutional issues? What were the issues? Did Miss Miers do most of the research and writing herself? Has she argued constitutional issues before a court? How many times? In what courts? In how many did she prevail? Are there any published opinions? If so, what are the case names and citations?

  • Which of the Founders’ vision of the proper role of the courts did Miss Miers refer to in her acceptance statement and why?

  • What did Miss Miers mean when she promised to keep our judicial system strong and what would she do to accomplish that commitment?

  • Does Miss Miers believe that the Declaration of Independence is important to understanding the U.S. Constitution?

  • Is the Constitution the primary source of our rights?

  • Does Miss Miers believe that Supreme Court members should consider foreign law when interpreting the meaning of the U.S. Constitution?

  • It has been reported that Miss Miers’ favorite Supreme Court Chief Justice is Warren Burger. Why?

  • Has Miss Miers authored or co-authored any amicus curiae briefs that argued constitutional issues? If so, in which cases and courts?

  • All attorneys are required to attend and complete mandatory continuing legal education courses (M.C.L.E.). How many of Miss Miers courses have been on the subject of constitutional law? If so, what were the subjects, what were the courses and dates of participation? Has Miss Miers instructed at an M.C.L.E. course on the subject of constitutional law?

  • Has Miss Miers spoken or debated on any subject of constitutional law, theory of interpretation, the role of the courts or separation of powers? When, where and on what subjects?

  • Is Miss Miers published on any subject of constitutional law? What are the publications, titles and dates of publication?

  • Has Miss Miers been a visiting lecturer on constitutional law in any law schools? When, where and on what subject?

  • It is reported that in the late 1990s when Miss Miers was a member of the advisory board for Southern Methodist University’s law school she helped initiate a women’s studies lecture series. The lecturers have been women who espouse a radical theory of feminism. Gloria Steinem delivered the series’ first lecture in 1998. In the following two years, the speakers were Patricia S. Schroeder, the former Democratic congresswoman widely associated with women’s causes, and Susan Faludi, the author of Backlash: The Undeclared War Against American Women (1991). Ann W. Richards, the Democrat whom George W. Bush unseated as governor of Texas in 1994, delivered the lecture in 2003. (Peter Schmidt, “Supreme Court Nominee Helped Set Up Lecture Series That Brought Leading Feminists to Southern Methodist U.,” The Chronicle of Higher Education, 6 October 2005.)

  • Has Miss Miers expressed any opinion about the dominance of feminist theory in the studies program? Does Miss Miers share the feminist theory that lecturers have presented? Has she disassociated herself from the lecture series or attempted to bring lecturers to the program that represent a traditionalist perspective on women? Why has she not participated as a lecturer?

  • Supporters of Miss Miers point to her work as president of the Texas Bar Association to influence the ABA to adopt a neutral stance on abortion. It did not. Until accepting a position as White House staff secretary in 2001, Miss Miers was still heavily involved in the ABA.

  • Why did Miss Miers participate in a voluntary professional association whose amicus briefs do not consistently appeal to a textualist interpretation of the Constitution, which she has promised to do?

  • If Miss Miers does not support abortion, why did she continue in leadership positions in the ABA (Molly McDonough, “Miers Tapped for Supreme Court: Bush’s Longtime Counselor Also Has ABA, ABA Journal Ties,” ABA Journal, 3 October 2005), which does support abortion? If she were not in her current position, would she continue to participate despite its opposition to a constitutional amendment banning same-sex "marriage," its support of physician-assisted suicide, the International Criminal Court and requiring the Boy Scouts of America to allow homosexuals to participate as Scout leaders?
  • CWA hopes to learn the answers to these and other important questions.

    Concerned Women for America
    1015 Fifteenth St. N.W., Suite 1100
    Washington, D.C. 20005
    Phone: (202) 488-7000
    Fax: (202) 488-0806

    Links Pro and Con on Harriet Miers Nomination


    Hugh Hewitt's blog (Hewitt is a Christian conservative and national radio talk show host who has taken the lead among bloggers in defending the Miers selection)

    "Court Nominee is 'Deeply Committed Christian': Dr. Dobson explains his support for Harriet Miers" (Focus on the Family CitizenLink article)

    Dr. Dobson's Focus on the Family Broadcast Supporting Miers (choose between Windows Media Player and RealAudio)


    "Bush Bets Court on Untested Aide: Decades of Hard Work by Conservative Activists Put at Risk" (online Human Events, a conservative newsweekly (IFI's Peter LaBarbera is a contribution editor to Human Events)

    "Miers Remorse: Conservatives are right to be skeptical" (column by Wall Street Journal editorial writer John Fund)
    Fund writes:

    I have changed my mind about Harriet Miers. Last Thursday, I wrote in OpinionJournal's Political Diary that "while skepticism of Ms. Miers is justified, the time is fast approaching when such expressions should be muted until the Senate hearings begin. At that point, Ms. Miers will finally be able to speak for herself."

    But that was before I interviewed more than a dozen of her friends and colleagues along with political players in Texas. I came away convinced that questions about Ms. Miers should be raised now--and loudly--because she has spent her entire life avoiding giving a clear picture of herself. "She is unrevealing to the point that it's an obsession," says one of her close colleagues at her law firm.
    "McCain's blunder: A liberal minority in the Senate will have the upper hand" (Mark Levin, author of the best-selling Men In Black and president of Landmark Legal Foundation, writing in National Review Online)

    Vice Chairman of Voter Education

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