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Questions for Epstein & Segal: OUPblog Bookclub

In this first installment of the OUPblog bookclub, Lee Epstein and Jeffrey Segal answer questions on the Miers nomination and the future of the Judiciary branch under Bush’s picks. Enjoy!

1) Much was made during the Roberts confirmation hearings over his ideological beliefs and their possible effects on American law. But, what effect might Roberts have in his role as Chief Justice on the Judiciary system as a whole? Could his tenure over the next twenty to thirty years alter the judiciary in any serious way? What do you think that might be?

A) As Chief Justice of the United States, Roberts is also the head of the judicial branch of government. The formal duties of this position include Chairmanship of the Judicial Conference of the United States, and the Federal Judicial Center, and administrative leadership over the federal judiciary. The Chief Justice testifies before Congress over the need for new lower court judges, the salaries judges are paid, and the potential creation of new courts. Chief Justice Burger, for example, thought that an intermediate court of appeals was necessary to help with the Supreme Court’s caseload. Under Chief Justice Rehnquist, the Court’s docket shrunk dramatically, obviating the need for such a court. Rehnquist also argued against political interference with the independence of the judiciary. While Roberts’ seemingly endorsed Congressional control of the Court’s jurisdiction while in the Justice Department, we doubt he would take such a view as Chief Justice.

2) In your opinion, is Harriet Miers qualified to be a Supreme Court Justice? Does her resume compare favorably to past nominees or not?

A) Unlike every nominee since 1975, Harriet Miers has no prior judicial service. But neither did John Marshall, Earl Warren, or William Rehnquist. Marshall and Warren, though, had extensive political experience, and Rehnquist did graduate at the top of his Stanford Law School class. Miers, though, did rise to the presidency of the Texas Bar Association, the first woman to do so, and when seated, will be the only justice to have held elective office.

3) Who do you think should have been nominated for these two positions? Who are the biggest people that got passed over? Why?

A) Given a Republican president, Roberts was almost a perfect choice for the Chief Justice position. He is both exceptionally well qualified and very conservative, yet he had a fairly negligible paper trail. Thus, Democrats were unable to pin him down on hot-button issues such as abortion and affirmative action. As for Miers, President Bush passed over a large number of seemingly qualified conservatives, including Priscilla Owen and Edith Jones, both judges on the 5th Circuit Court of Appeals. But like Janice Rogers Brown of the D.C. Circuit, Owen and Jones may have been filibustered by the Democrats. Certainly, though, the most influential judge on the Courts of Appeals is Richard Posner of the 7th Circuit, founder of the school of law and economics. Given his age (66) and a long list of controversial statements, Posner will join Learned Hand among the top lower court judges never to have made it to the Supreme Court.

4) How will Miers and Roberts change the dynamics of the Supreme Court? Who is now in the “swing vote” position that O’Connor occupied?

A) Ideologically, the replacement of Rehnquist with Roberts will change very little, as Roberts is pretty close to Rehnquist ideologically, and neither is close to being a swing vote. Miers, we believe, will be substantially more conservative on social issues than O’Connor, thus shifting the “swing vote” position to Kennedy. While Kennedy is fairly conservative, he has a liberal streak that shows up in issues such as abortion and gay rights.

5) Do you think that any other Justices will step down during the Bush administration? Who could that be?

A) Based on age alone, the most likely retirement candidate is John Paul Stevens, who is 85. But the liberal Stevens might hesitate to retire while the conservative Bush is president. Antonin Scalia will turn 70 this term, but may be hoping that the Court will finally be turning in the direction he prefers.

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