JURIST Guest Columnist Sherrilyn Ifill of the University of Maryland School of Law says that contrary to what some female politicians, commentators and even the First Lady of the United States have said, skepticism about the qualifications of Harriet Miers for the US Supreme Court is not sexist...
Nothing is more harmful to ongoing efforts to eliminate sexism and racism from public and private life than a high profile charge that is utterly unfounded. And the charge that Harriet Miers is the victim of sexism is about as unfounded as Clarence Thomas' 1991 charge after the Anita Hill sexual harassment allegations came to light that he was the victim of a "high-tech lynching." Thomas was the subject of intense scrutiny because he was alleged to have engaged in conduct towards a female subordinate in his office, which was offensive and inappropriate. Harriet Miers is the subject of intense skepticism by those on the right and on the left (including women) because she seeks a lifetime appointment to perhaps the most intellectually and personally challenging and important legal jobs in our country on a resume that reflects very little preparation for the job at hand.
This kind of experience however, cannot replace the need for a nominee to have demonstrated their knowledge of and commitment to engaging with complex constitutional law questions. If Thurgood Marshall had been nominated to the bench straight from practice, before he served as Solicitor General and on the 2nd Circuit Court of Appeals, I would have regarded him as qualified. He'd spent 35 years as a constitutional litigator. Likewise, even if Chief Justice Roberts had not served on the D.C. Circuit, his experience litigating constitutional cases before the Supreme Court over 20 years demonstrated that at a minimum he had a firm grasp of and an intense interest in resolving the kinds of questions with which he would be confronted as a Supreme Court justice for the rest of his life. Whatever my concerns about his refusal to answer questions about specific cases, and his unsatisfactory answers to other questions, therefore, I could not argue that Roberts was unqualified to sit on the Court.
Harriet Miers presents a different case. To be blunt, her resume thick with unremarkable service on local boards -- is thin on constitutional litigation, scholarship or service. She has never appeared before the Supreme Court. She has argued only 4 cases in the federal circuit court. She has not authored a law review article or book presenting a sustained and coherent argument or exposition of a complex legal question of public significance. Nominees for the Supreme Court cannot expect to "catch-up" on constitutional law issues during the confirmation process. They must have already thought long and hard and deeply about these issues. How can we expect Miers to engage forcefully and independently in conferences with the other justices if she has only begun to think through complex constitutional law questions in the past few weeks? These deficiencies lead me (and many others) to conclude that there are countless conservative women lawyers who are more qualified than Miers to sit on the Court. They serve on state and federal courts, on law faculties and in law firms throughout this country. But these women apparently lacked the two qualifications that the Bush vetting team regarded as essential to fill this vacant seat on the Court proven loyalty to this President and a gossamer paper trial.
The Judiciary Committee, therefore, must closely question this nominee on her qualifications, and on the extent of her loyalty to this President. To argue that it's sexist to do so distracts us from the very important charge that confronts the Committee. The President's highly inappropriate conduct since Miers' nomination -- winking and nodding to his right-wing base, to assure them of Miers' anti-abortion stance -- should further spur the Committee to demand that this nominee explain to the American public who she is, and what kind of judge she would be.
Of course, there will be some who will regard Miers' gender as a reason to suspect her competence. Questions about her law school grades, whether she's a good cook and why she's single are all grossly out of bounds. But to characterize challenges to her qualifications for this most important job as sexist is simply off the mark. To confront Miers with tough questioning and to hold her to the standard of excellence that we should expect of any Supreme Court nominee is not sexist. It is the constitutional obligation of each Senator on the Judiciary Committee.
Sherrilyn Ifill is a civil rights lawyer and law professor at the University of Maryland School of Law