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…
Senator Barbara Mikulski suggested it. Television commentator Cokie Roberts confirmed it. And Laura Bush has driven it home. Intense skepticism about the qualification of Harriet Miers to sit on the U.S. Supreme Court is sexist. The only problem with this growing consensus among high profile women from both sides of the aisle is that it’s just plain wrong.
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.
Miers’ anemic answers to the questions proferred by the Judiciary Committee certainly undermine the sexism claim. Read in total, her application reads like that of a competent candidate for a district court judge seat, not a Supreme Court justice. To say this is not to impugn Miers’ intelligence or skill as a lawyer. Yes, Miers is a prominent and capable attorney who headed up a major law firm. Yes, she was the first female president elected to head the Dallas Bar Association. But the job of Supreme Court justice is a unique one. Being smart and capable are only the starting points for this job. What is blatantly lacking in Miers’ resume is a demonstration that she has committed herself to confronting and grappling with complex constitutional issues — the bread and butter of the modern Supreme Court docket. This does not require, as some have suggested, that Miers have served as a judge before coming to the Court — although such experience would help in her acclimatization to the insulated and high-pressure life of a judge. I have long advocated greater professional diversity among our Supreme Court Justices. With most recently appointed justices rising from the D.C. Circuit Court of Appeals to the High Court, we had come perilously close to creating a kind of “professional track” to the Court. The Court needs justices that have a range of experiences to bring to judicial decision making. Admittedly, Chair of the State Lottery Commission is not necessarily the kind of diverse experience I had in mind, but I welcome a justice that has some non-traditional experience in state government.
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 shou
ld 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
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.