[Congressional Record (Bound Edition), Volume 151 (2005), Part 16]
[Senate]
[Pages 22086-22087]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             HARRIET MIERS

  Mr. CORNYN. Mr. President, I rise to commend the President on his 
selection of Harriet Miers to be associate justice of the Supreme 
Court. I have had the pleasure of knowing both Ms. Miers and the 
President for a number of years, from our days in Texas in State 
Government in particular. In Texas, President Bush had the reputation 
of being a uniter. Literally, we had divided government, with Democrats 
controlling the House and the Senate. He worked on a daily basis with 
Lt. Gov. Bob Bullock and Speaker Pete Laney, who were of the other 
party. When he came to Washington, he hoped he would find a Bob Bullock 
or a Pete Laney on the other side of the aisle so he could continue in 
that tradition, doing what he believed was best for the people who had 
sent him here--all the people. Unfortunately, we know that Washington's 
political environment is way too partisan and even poisonous.
  The President has chosen wisely with this nominee. He has chosen a 
nominee who should, and I believe will, unite us.
  I am proud to say that Harriet Miers is a fellow Texan. She was born 
and raised in Dallas and attended Southern Methodist University, where 
she received her bachelor's degree in mathematics and her law degree. 
That is kind of an unusual combination for lawyers. Most lawyers eschew 
mathematics, but she nevertheless has a bachelor's degree in 
mathematics. Following law school, she clerked for a Federal judge and 
then joined one of the finest law firms in our State, where she 
practiced for a number of years before she came to the attention of a 
Governor who would then become our current President.
  As proud as I am to say that Harriet is a fellow Texan, I am even 
more proud to say she is a friend. I have known her for about 15 years. 
I have come to know her as a fine and decent human being, someone who 
has dedicated her life to serving others, from the clients in her law 
firm to the people of Texas, and now to offering herself to serve all 
of us in this great country.
  It is especially fitting that Harriet Miers be nominated to the seat 
being vacated by another trailblazer, Justice Sandra Day O'Connor. 
Justice O'Connor was the first woman to serve on the Supreme Court of 
the United States. But Harriet has blazed a few trails of her own. She 
was the first woman hired by her law firm. She was the first woman to 
serve as the president or comanaging partner of that firm. She was the 
first woman to serve as the president of the Dallas Bar Association, 
and then she was later selected to be the first woman to serve as 
president of the State Bar of Texas, which is the association 
encompassing all members of the legal profession in Texas.
  As these accomplishments make clear, she has had a long and 
distinguished professional career. Her dedication to her clients, to 
her community, and to the rule of law has made her a leader in my 
State.
  Her accomplishments do not end at the border of Texas. Over the last 
25 years, she has worked at the highest levels of our national 
Government in the White House, including serving as the President's 
closest legal adviser. Moreover, before she came to Washington, she was 
known and respected nationally for her legal skills and her advocacy 
for legal services being provided and available to all Americans. She 
was very active in the American Bar Association, and she is well known 
by lawyers throughout the country. We will hear increasingly more and 
more of them come forward to speak, without regard to partisan 
affiliation or other considerations.
  This long and distinguished career has made Harriet well qualified to 
serve as an associate justice on the U.S. Supreme Court. I am not 
alone. She has received praise from Senators on both sides of the 
aisle, including the Democratic leader, the senior Senator from Nevada. 
She has also received praise from this side of the aisle, from our 
majority leader, as well as the senior Senator from Kentucky, our 
deputy majority leader. She is without question a consensus nominee.
  I know that makes some people nervous in a body where we have become 
so accustomed to locking horns and fighting over so many things, some 
of which are important. There are contests on principle, but sometimes 
there are those who would pick a fight to keep that partisanship and 
bitterness going. The President has chosen well by choosing a consensus 
nominee. It is not surprising because this President has engaged in an 
unprecedented act of consultation on the two nominations to the Supreme 
Court: First, now-Chief Justice John Roberts and now soon-to-be 
Associate Justice Harriet Miers.
  One thing you will not find in Harriet's long and distinguished 
career is service as a judge. I want to talk about that because some 
have said that that is actually a weakness. I suggest that it is not a 
bad thing, nor is it unprecedented. Forty-one of the one hundred and 
nine Justices who have served on the U.S. Supreme Court had no previous 
judicial experience. These 41 included some of our Nation's most 
influential and best-known justices--William Rehnquist, Lewis Powell, 
Byron White, Robert Jackson, Felix Frankfurter, Lewis Brandeis, Joseph 
Story, and John Marshall. Indeed, a little bit of diversity of 
background and experience is important to have on the Supreme Court. 
The Supreme Court is full of Justices who have served either as 
academics or as court of appeals justice judges before they have been 
nominated to the Supreme Court bench. Certainly, while they are a 
distinguished body of jurists, what the Court is actually missing is 
someone who has had practical legal experience, someone who will 
understand the real-world consequences of the Court's decisions for the 
American people.
  I have been one who has been concerned about the fact that the 
Supreme Court sometimes seems out of touch with America. When you have 
the Supreme Court decide that the Ten Commandments is legal in Austin 
but illegal in Kentucky and you have 10 different opinions for 9 
Justices to explain it, clearly there is something amiss. Harriet Miers 
will provide a strong dose of common sense and reconnect the Court with 
the American people in an important way.
  It is also important to have someone who has actually been elected to 
office, as Harriet Miers has been. She has been elected to city council 
in Dallas, perhaps not high national office but nevertheless an 
important one. Once Justice O'Connor leaves the Court, there will be no 
one left on the Court, but for this nominee, who has ever held elected 
office. There is already no one there who has ever served at the 
highest levels of the executive branch of Government. If it were not 
for newly confirmed Chief Justice John Roberts, none of the Justices 
would have been actively engaged in law practice in the past 35 years. 
Even the Chief Justice himself was primarily focused on appeals. A 
Justice Harriet Miers fills these gaps.
  She was elected city councilwoman in Dallas. She served at the 
highest levels of this administration, now as White House counsel, and 
she has spent her entire professional career representing clients in 
courtrooms across the State of Texas and even across the Nation.
  I am not the only one who believes practical, real-world experience 
is important for a nominee. The senior Senator from Nevada, the 
Democratic leader, yesterday said that he thought this was actually a 
plus, not a minus. The senior Senator from New York echoed this view, 
stating that the fact she hasn't been a judge before is actually a 
positive, not a negative. I think those sentiments are much as I have 
explained. Certainly, they can speak for themselves.
  I know there are many Americans who are unfamiliar with Harriet 
Miers. This is understandable. She has been working outside of the 
limelight her

[[Page 22087]]

entire career, always serving others. I have been fortunate enough to 
know her for about the last 15 years. I have a good feel for who she is 
as a person and as a highly competent practitioner. I know that she 
believes, as I do, that judges should not legislate from the bench. I 
know she believes, as I do, that judges are not some sort of elite, 
appointed to impose their will on the rest of us. Rather, I know she 
understands that unelected judges who serve in a democracy have a 
necessarily limited but important role--to apply the law as it was 
written.
  Harriet aptly described this judicial philosophy yesterday when she 
said:

       It is the responsibility of every generation to be true to 
     the founders' vision of the proper role of the courts in our 
     society. If confirmed, I recognize that I will have a 
     tremendous responsibility to keep our judicial system strong 
     and to help ensure that the courts meet their obligations to 
     strictly apply the laws and the Constitution.

  I am confident, when the American people get to know Harriet Miers, 
as I have had the pleasure, they will be as supportive as I am today of 
this nomination. I believe the President has chosen wisely. Now it is 
up to us in the Senate to go forward with the confirmation process. 
That is not to say that her confirmation is preordained by any means 
but that we now have the obligation to undertake this confirmation 
process in a civil and dignified and respectful manner.
  I would say the Senate did itself proud in the way it handled the 
confirmation of Chief Justice John G. Roberts. We have not always, in 
recent memory, done ourselves proud in the judicial confirmation 
process, and I am speaking specifically of the filibusters that were 
previously unprecedented. But hopefully this is a new day and we have 
learned from those lessons of the past, and we will continue in the 
tradition that I think we have now reestablished with John G. Roberts.
  I think we can even do better this time around. For example, the last 
time around, some of my colleagues insisted that Chief Justice Roberts 
answer questions about issues and cases that were likely to come before 
the Court. Indeed, some of my colleagues stated they voted against his 
confirmation precisely because he refused to precommit on some of the 
hot-button issues of the day. As I said, I hope we can do even better 
this time.
  My colleagues know that, as was Chief Justice Roberts, Harriet Miers 
is ethically forbidden from pledging to rule a certain way on these 
issues or any issues that are likely to come before the Supreme Court. 
It is simply unfair to her, and I think it is a threat to judicial 
independence to insist that any nominee pledge a certain performance 
when confirmed in judicial office. I think it is unfair to her to ask 
her a question that my colleagues know she simply cannot ethically 
answer.
  Every nominee who has come before the Senate has followed these 
ethical rules and resisted making promises to politicians during the 
confirmation process. This tradition has come to be known as the 
Ginsburg standard, named for Justice Ginsburg nominated in 1993 by 
President Clinton. Justice Ginsburg was so steadfast and articulate in 
defending the right of judicial nominees declining to prejudge cases on 
issues that might come before them once they get on the bench that we 
have come to call this the Ginsburg standard.
  Some of my colleagues on the other side of the aisle expressed 
displeasure with the Ginsburg standard during the confirmation process 
for Chief Justice Roberts. The one person who did not express 
displeasure was Justice Ginsburg. Indeed, in remarks just last week to 
students at Wake Forest University, Justice Ginsburg reaffirmed the 
Justice Ginsburg standard, and she affirmed Chief Justice Roberts' 
refusal to answer questions about issues that will likely come before 
the Court.
  She said:

       Judge Roberts was unquestionably right. My rule was I will 
     not answer a question that attempts to project how I will 
     rule in a case that might come before the court. . . . A 
     judge on a collegial court should never forecast how he or 
     she would vote on particular issues. . . .

  Nor, I might interject, should we want a judge who would be willing 
to trade a confirmation vote for a pledge of performance in office. It 
would threaten judicial independence, it would violate the rules of 
ethics, and I think it would be fundamentally unfair to people who look 
to the Supreme Court as the last bastion of justice in America today.
  My hope is that Justice Ginsburg's endorsement of Chief Justice 
Roberts' confirmation conduct will persuade my Democratic colleagues to 
change their minds on how we ought to treat judicial nominees, 
including Harriet Miers. We should not treat this nominee or any 
nominee unfairly and demand that they inappropriately make commitments 
on how they will rule on hot-button issues of the day, no matter how 
curious we are.
  I must confess I am as curious as the next person, but I recognize 
there is a higher duty than merely satisfying my curiosity, or anyone 
else's for that matter: judicial independence, judicial ethics, and the 
importance of not prejudging cases so that there will not only be the 
reality of justice being disseminated on a fair and equal basis, there 
will be the perception that judges have not prejudged issues or cases.
  This is an important nomination for our country. The nomination of 
any person to serve on the Supreme Court of the United States is a 
celebration of our Constitution and of our Nation's commitment to the 
rule of law, perhaps our most important export.
  It is all the more important today because this is the nomination of 
only the third woman to serve on our Nation's highest Court. I look 
forward to a dignified, civil, and respectful confirmation process in 
the Senate.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent that I be 
allowed to speak for up to 20 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Tennessee is recognized.
  Mr. ALEXANDER. I thank the Chair.
  (The remarks of Mr. Alexander pertaining to the introduction of S. 
1815 are printed in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mr. ALEXANDER. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Sununu). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BAYH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________