[Mb-civic] How to question Harriet Miers - Rashi Fein - Boston Globe Op-Ed

[William Swiggard]

How to question Harriet Miers

By Rashi Fein  |  October 14, 2005

A FEW DAYS ago I had occasion to visit the John Joseph Moakley United 
States Courthouse in Boston. The building is adorned with numerous 
inscriptions: the preamble to the US Constitution; the First, Fourth, 
Sixth, and 14th Amendments; excerpts from the constitutions of Puerto 
Rico, Rhode Island, Massachusetts, New Hampshire, and Maine, and great 
quotations carved in stone.

I stopped to read and think about the two inscriptions at the entrance 
stairways of the courthouse, one by Justice Louis D. Brandeis, the other 
by Justice Oliver Wendell Holmes. I then walked through and around the 
building and read others.

All of them, from the first by John Adams in 1776 to the last by Justice 
Stephen Breyer in 1991, are deeply moving. They are part of our rich 
history and legal tradition, a ''democratic conversation," in the words 
of the courthouse brochure. And so I offer a suggestion: Suppose the 
members of the Senate Judiciary Committee were to spend less time asking 
questions a nominee to the Supreme Court would either choose not to 
answer, deem ''inappropriate," or just plain evade. Suppose instead they 
were to engage with the nominee in a conversation about the quotations 
from Boston's federal courthouse. Wouldn't the members of the committee 
and we, the public, learn more about the nominees' views than we do from 
questions that go unanswered?

Just over there, at the entrance stairway, is a statement by Oliver 
Wendell Holmes, made in 1881 before he was elevated to the Supreme 
Court: ''The life of the law has not been logic: It has been 
experience." And from the brochure, we learn that Holmes went on to say, 
''In order to know what [the law] is, we must know what it has been and 
what it tends to become." In Holmes's view, then, the law is alive and 
ever-changing.

Does Harriet Miers stand with Holmes or does she find his statement 
wanting, thinks Holmes ''too activist" a justice? Let's talk that 
through with Miers.

And let's have a look at the words of Justice Louis D. Brandeis and talk 
about the role of the Executive Branch and the application of executive 
power. Here is what he said in 1914: ''Our government is the potent, the 
omnipresent teacher. For good or for ill, it teaches the whole world by 
its example." Brandeis, the brochure notes, went on to say, ''In a 
government of laws, existence of the government will be imperiled if it 
fails to observe the law scrupulously" and ''if the government becomes a 
lawbreaker, it breeds contempt for law . . ." Does that statement inform 
our discussion about the application of the Geneva Convention and, if 
so, how?

Or we might focus on and discuss what Justice Frankfurter in 1951 wrote, 
in words that some would argue apply to ''enemy combatants" and others: 
''No better instrument has been devised for arriving at truth than to 
give a person in jeopardy of serious loss notice of the case against him 
and opportunity to meet it." He went on to emphasize that ''the validity 
and moral authority of a conclusion largely depend on the mode by which 
it was reached" and, as the brochure states, ''He warned that a fair 
process is especially critical 'at times of agitation and anxiety, when 
fear and suspicion impregnate the air we breathe.' " Does Miers agree 
with Justice Frankfurter? If not, how would she amend his statement?

There are more than 30 engravings on the Moakley Courthouse. Every one 
is both a witness to and a maker of history. It would be useful for the 
US Senate to know what Miers thinks about those statements, statements 
that the designers of the courthouse considered significant to the 
understanding of the role of law and the pursuit of justice.

In the jury assembly hall of the courthouse are inscribed the words of 
Justice Brandeis: ''Those who won our independence believed . . . that 
the greatest menace to freedom is an inert people; that public 
discussion is a political duty and that this should be a fundamental 
principle of the American government."

Applying those words in the forthcoming hearings would enable the 
citizenry to listen to the discussion and to be educated in the issues 
involved. Such a ''democratic conversation" would be invaluable, far 
more useful and instructive than yet another round of predictable 
questions and equally predictable responses.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/10/14/how_to_question_harriet_miers/
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