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Published on October 4, 2005, Page A6, Kansas City Star, The (MO)

Article 2 of 53; 994 words   

Questions abound surrounding O'Connor's final session and Miers' future challenges   

Q. What role will lame duck Supreme Court Justice Sandra Day O'Connor have now, given that she's unlikely to finish the court's current term?

A. Legal analysts said that on issues where broad consensus existed within the court, O'Connor could vote on and even write opinions in some cases before leaving. Her powers of persuasion could influence her colleagues, and she could be helpful with the workload of writing decisions.But where her   vote is pivotal - for instance, a 5-4 tally with O'Connor in the majority - the case would likely be delayed and argued a second time after O'Connor's replacement is sworn in. That's because she would be unlikely to remain on the court months later when a final ruling is made public.

Think of Supreme Court decisions being made in two phases. An early vote is taken, often within a week of hearing oral arguments. Then majority and dissenting opinions are assigned, and the justices weigh in again, based on whether they can still sign on to the specific arguments in those rulings. O'Connor's successor will not vote on cases heard before he or she is sworn in.

"There's just so much internal negotiation that goes on within the court," said Eric Claeys, a law professor at St. Louis University who was a clerk to William H. Rehnquist when he was a Supreme Court justice. "People on the outside have the expectation that the justices who decide a case knew it from beginning to end."

Q. Will O'Connor's service in the court's current session influence what her colleagues or her successor do in the future?

A. Indeed, judicial experts say, O'Connor's most significant role this fall will be deciding what cases are granted certiorari, or a hearing before the court. For instance, the justices are expected to vote among themselves this week whether to hear Hamdan v. Rumsfeld. That case challenges how the Bush administration has chosen to use military tribunals in dealing with terror suspects held at Guantanamo Bay, Cuba. O'Connor wrote last year about the court's need to take on cases involving human-rights treaties. That led analysts to anticipate that she would vote for the court to hear the case - a vote that is expected to be close.

"Deciding what cases the court hears is one of the most important things justices do," said Steven Lubet, a Northwestern University law professor.

Q. If she's sworn in as a Supreme Court justice, will Harriet Miers rule on policies she influenced at the White House?

A. Short answer: If she wants to.

Longer answer: Judicial ethics call for justices to recuse themselves - to withdraw from judging - if they have a conflict, such as playing an earlier role in the case. O'Connor routinely recused herself from cases every year when they involved companies in which her husband owned stock.

Justices have also famously sat in judgment on cases where others perceived conflict. As a Justice Department attorney, Rehnquist testified before Congress about an Army intelligence program that was alleged to spy on civilians. Later, while sitting on the high court, he brushed off calls to step aside from the case by saying that he had only been a congressional witness, not a creator of the program. Congress responded by passing a law calling on judges to recuse themselves from issues on which they had testified to lawmakers.

Justice Antonin Scalia declined to recuse himself from a case involving Vice President Dick Cheney's energy policy task force when critics said the pair's lavish duck-hunting trips together could make it difficult for the judge to remain objective. Scalia countered, among other things, that sitting out the case raised the potential for a 4-4 tie and the court could "find itself unable to resolve the significant legal issue presented by the case." That reasoning was criticized because it could be used against any recusal.

"It's not a good argument," said Lubet, an expert in judicial ethics. "Supreme Court justices recuse themselves all the time."

Q. Will things that Miers wrote as White House counsel - or legal adviser to the administration - give us a view of her judicial philosophy?

A. They might. If we saw them, and few people think we will.

Unlike the volumes of memoranda and briefs that Chief Justice John G. Roberts wrote during the administrations of Ronald Reagan and the first President Bush, Miers' writings were done for an administration still in power. The president's people are expected to widely claim executive privilege or lawyer-client privilege - keeping those papers out of consideration during her confirmation hearings.

"You'll see Democrats requesting materials," said Barbara Perry, a government professor at Sweet Briar College who has interviewed most current Supreme Court justices. "But I don't think they'll see much."

Q. Why are people calling Miers a "stealth nominee"?

A. Legal historians say few, if any, nominees in modern times have been chosen for the high court with such a minimal public record that could reveal how they would act as a jurist.

Most nominees are judges, and their lower-court opinions give some clue to how they might rule from atop the judicial system.

Even other nonjudges revealed more about their legal temperament. Earl Warren weighed in on policy as the governor of California. Robert Jackson was attorney general. William O. Douglas was chairman of the Securities and Exchange Commission. Louis Brandies wrote extensively for law reviews.

Although Miers has been active in public life and in the American Bar Association, and has served under Bush in his White House and when he was governor of Texas, she has not written or spoken much publicly about her own views on the law.

"She's the ultimate stealth nominee," said Susan Low Bloch, a Georgetown University law professor and former clerk to Thurgood Marshall. "Roberts was the A-plus candidate. ... Here, we don't have evidence of that. ... This is a really smart bench she would be joining. She could be intimidated."

http://www.kansascity.com Published on October 4, 2005, Page A6, Kansas City Star, The (MO)