Bench Memos

Some Perspective on Miers’s Questionnaire

I have heard from some other former administration attorneys who think that the Miers’s questionnaire — and its apparent deficiencies — should be put in perspective. First, and perhaps most important, no nominee’s questionnaire is complete and error-free. Readers may recall that John Roberts’ questionnaire neglected to include some of his pro bono work and some media interviews. So the issue — insofar as there is one — is whether the deficiencies in Miers’s questionnaire are greater than one would normally expect.

Second, it is likely that Senators (and others) are going over Miers’s answers more critically than they reviewed Roberts’s answers. Of course the reason for this is that there are more questions about Miers’s qualifications. No one doubted that John Roberts was qualified, so the details of how many cases he argued for what clients when did not take on the same importance. With Miers, on the other hand, how much work she did on constitutional issues or other matters is of much greater moment.

Third, one former administration attorney believes my speculation at the end of my last post is unwarranted. This attorney, who is quite familiar with the nominee vetting and confirmation process, said that no one knows more about the answers to the Senate Judiciary Committee’s questions than the nominee herself. Attorneys in the White House Counsel’s office and OLP can help fill in some of the gaps, but they are not likely to know enough of the details to identify each and every deficiency. I would suggest this problem is compounded where, as here, you have a nominee that did not go through a complete and thorough vetting before her nomination and the nominee is the supervisor of many of those who would be expected to fill holes in the questionnaire.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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