Faculty Cast Doubts On Supreme Court Nominee

As a growing number of senators and commentators question President Bush’s nomination of Harriet Miers to the Supreme Court, several of the University’s leading scholars have expressed doubts about the president’s choice, saying that Miers’ views are too unknown and that her legal credentials are lacking.

Loeb University Professor Laurence H. Tribe '62, a constitutional scholar at Harvard Law School and frequent practitioner before the Supreme Court, wrote in an e-mail that Miers’ “record to date certainly does not establish the kind of intellectual excellence or breadth of experience that should be demanded in a Justice of the Supreme Court.”

Tribe’s criticism of Miers’ intellectual gravitas differs greatly from the disparagements she has received from the right, most of which are based on the fact that her views on many critical issues are unknown.

“[Bush felt] that he had given one of his nominations to the Ivy League and wanted to save the other for Texas and the religious conservatives,” wrote Kenan Professor of Government Harvey C. Mansfield ’53 in an e-mail. “By doing so, he endangered the conservative shift in the Supreme Court that those of us who voted for him badly wanted.”

But not everyone at Harvard—or outside of it—is disappointed with Bush’s choice.

Matthew P. Downer ’07, president of the Harvard College Republicans, said that Miers has a “distinguished legal and professional record and seems to be a good nominee for the Supreme Court,” and that no one should pass judgment on the nominee until after the hearings are held.

Still, even many conservative pundits, like Washington Post columnist George Will, have argued that the president is asking senators to make a leap of faith.

“The president’s ‘argument’ for her amounts to: ‘Trust me.’ There is no reason to,” he wrote in an editorial in the Post.

Since announcing the nomination on Monday, Bush has defended Miers to conservatives by asserting that she will be a reliable vote for the right.

“I know her well enough to be able to say that she’s not going to change, that 20 years from now she’ll be the same person with the same philosophy that she is today,” Bush said in a press conference Tuesday in what was widely interpreted as a reference to Justice David Souter, who has disappointed conservatives during his 15 years on the Court.

But Tribe said that Bush's attempt to reassure supporters of Miers' conservative bona fides should actually inspire worry—and for non-ideological reasons.

“If one were to take on faith the president’s intended praise for his nominee,” Tribe wrote, “it would follow that she is unqualified to serve, because a mind of which it’s possible to say, ‘there will be no change or growth’ is a mind too tightly shut to perform the complex task of legal interpretation in a changing world.”

The last contested nomination was in 1991, when Justice Clarence Thomas was confirmed by a vote of 52-48, the closest affirmative vote in a century.