Release date: Oct. 10, 2005

Miers Will Study Roberts Hearings Closely, Says Emory's Schapiro

U.S. Supreme Court Justice nominee Harriet Miers will be studying transcripts of Chief Justice John Roberts' confirmation hearings closely if she seeks to walk that same fine line between showing her knowledge of constitutional law while avoiding taking a position on most cases, says Emory constitutional law expert Robert Schapiro.

"Given the difficulty in discovering the actual views of Supreme Court nominees, one of the most significant functions of the confirmation hearings is to help to protect the existing constitutional order," says Schapiro. "An important role for Senators is to induce nominees to agree that certain decisions are indeed settled law. That process of agreement helps to embed the decisions into our constitutional order, to take those issues off the table. By the same token, if the nominee refuses to support existing precedent, the hearings can highlight that potential threat to the current state of the law."

Widely noted was Roberts' ability to comment on a wide range of issues while avoiding taking a position on most cases. "He also was able to articulate a theory about which cases he would discuss and which cases he would not," says Schapiro. Roberts refused to express an opinion about precedents that he viewed as subject to challenge. Some Senators asserted that Roberts' distinction was not entirely satisfying because "settled" precedent is challenged all the time.

A notable difference between Roberts and Miers is that Roberts "could not deny having thought about all the main cases of the current constitutionalcanon," says Schapiro. "Miers might credibly claim not to have an opinion about a variety of Supreme Court precedents. On the other hand, she will want to appear knowledgeable about constitutional law. I am sure that she will study the Roberts hearings closely."

Schapiro, former clerk to Justice John Paul Stevens, also can comment on the effects of current and future shifts on the court. His specialties include constitutional law, federal courts and civil procedure. 404-727-1103 or rschapir@law.emory.edu..

Constitutional specialist Charles Shanor says the Miers nomination is "stealth with a twist. The twist is that she may be a stealth candidate to everyone else, but not to the president. He believes he knows all he needs to know about her." Shanor can comment on the impact of the court's changing membership on a number of cases this term. His specialties also include military law, employment discrimination and labor law. 404-727-6811, cshanor@law.emory.edu

Federal jurisdiction expert Richard Freer can comment on the history of non-judicial nominees to the court. He also can comment on Chief Justice John Roberts' stated intention to increase the number of cases heard by the Supreme Court. Freer, whose specialties also include civil procedure and complex litigation, is dean of faculty and Robert Howell Hall Professor of Law. 404-636-3774 or rfreer@law.emory.edu

Emory University is known for its demanding academics, outstanding undergraduate college of arts and sciences, highly ranked professional schools and state-of-the-art research facilities. For nearly two decades Emory has been named one of the country's top 25 national universities by U.S. News & World Report. In addition to its nine schools, the university encompasses The Carter Center, Yerkes National Primate Research Center and Emory Healthcare, the state's largest and most comprehensive health care system.

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