Dear Marissa:
Thank you for advising me of your view of the nomination of White House Counsel Harriet Miers to replace retiring Justice Sandra Day O'Connor on the Supreme Court. I appreciate hearing from you.
Harriet Miers was somewhat of a surprise choice by President Bush, and her views and legal approach are not widely known. The Constitution gives the U.S. Senate the special responsibility of "advice and consent" on appointments to the federal bench, and, as in the case of Chief Justice Roberts, my bottom line in judging the Miers nomination will be whether I have confidence that she will respect the constitutionally protected rights of individuals and resist the temptation to substitute personal ideology for legal reasoning.
The significance of Ms. Miers' nomination is only heightened because she has been tapped to replace Justice O'Connor who was considered the swing vote on the bench. Also, because Ms. Miers has never served on the bench at any level, the Senate has a responsibility to probe her intellect and legal reasoning and assess her judicial temperament during the confirmation process. Additionally, the White House has an obligation, I feel, to provide the full range of records and materials associated with Ms. Miers' tenure at the White House. While significant documentation from the career of recently confirmed Chief Justice John Roberts was released by the White House, I was displeased with the Administration's unwillingness to provide more of the documentation on this nomination requested by members of the Senate Committee on the Judiciary. I am hopeful that the White House will recognize the increased importance of full disclosure in light of Ms. Miers' limited public record.
The problem I struggled with before casting my vote against Judge John Roberts' nomination was that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court – so that both a Scalia and a Ginsburg will arrive at the same place most of the time – what matters on the Supreme Court are those 5% of truly difficult cases. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. And that last mile can only be determined on the basis of one’s deepest values – one’s core concerns – one’s broader perspective on how the world works and the depth and breadth of one’s empathy.
In those 5% of really hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decision about whether or not affirmative action is an appropriate response to the history of discrimination, whether or not a general right of privacy encompasses a more specific right for a woman to control her own reproductive decisions, whether the commerce clause empowers Congress to speak to issues of broad national interest that may be only tangentially related to interstate commerce, whether a person who’s disabled has the right to be accommodated so that they can work along side the non-disabled – in those cases, the critical ingredient is supplied by what’s in the judge’s heart. This will be a prime focus of my consideration of Harriet Miers nomination.
Again, thank you for contacting me on this very significant matter. I will be researching Harriet Miers' credentials and experience carefully, and I encourage you to stay in touch as this debate unfolds.
Sincerely,
Barack Obama
United States Senator
Thank you for advising me of your view of the nomination of White House Counsel Harriet Miers to replace retiring Justice Sandra Day O'Connor on the Supreme Court. I appreciate hearing from you.
Harriet Miers was somewhat of a surprise choice by President Bush, and her views and legal approach are not widely known. The Constitution gives the U.S. Senate the special responsibility of "advice and consent" on appointments to the federal bench, and, as in the case of Chief Justice Roberts, my bottom line in judging the Miers nomination will be whether I have confidence that she will respect the constitutionally protected rights of individuals and resist the temptation to substitute personal ideology for legal reasoning.
The significance of Ms. Miers' nomination is only heightened because she has been tapped to replace Justice O'Connor who was considered the swing vote on the bench. Also, because Ms. Miers has never served on the bench at any level, the Senate has a responsibility to probe her intellect and legal reasoning and assess her judicial temperament during the confirmation process. Additionally, the White House has an obligation, I feel, to provide the full range of records and materials associated with Ms. Miers' tenure at the White House. While significant documentation from the career of recently confirmed Chief Justice John Roberts was released by the White House, I was displeased with the Administration's unwillingness to provide more of the documentation on this nomination requested by members of the Senate Committee on the Judiciary. I am hopeful that the White House will recognize the increased importance of full disclosure in light of Ms. Miers' limited public record.
The problem I struggled with before casting my vote against Judge John Roberts' nomination was that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court – so that both a Scalia and a Ginsburg will arrive at the same place most of the time – what matters on the Supreme Court are those 5% of truly difficult cases. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. And that last mile can only be determined on the basis of one’s deepest values – one’s core concerns – one’s broader perspective on how the world works and the depth and breadth of one’s empathy.
In those 5% of really hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decision about whether or not affirmative action is an appropriate response to the history of discrimination, whether or not a general right of privacy encompasses a more specific right for a woman to control her own reproductive decisions, whether the commerce clause empowers Congress to speak to issues of broad national interest that may be only tangentially related to interstate commerce, whether a person who’s disabled has the right to be accommodated so that they can work along side the non-disabled – in those cases, the critical ingredient is supplied by what’s in the judge’s heart. This will be a prime focus of my consideration of Harriet Miers nomination.
Again, thank you for contacting me on this very significant matter. I will be researching Harriet Miers' credentials and experience carefully, and I encourage you to stay in touch as this debate unfolds.
Sincerely,
Barack Obama
United States Senator
posted by Marissa | 2:29 PM
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