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DEDMAN SCHOOL OF LAW im SMU. Jolm B. Attanasio Dean and William Hawley Atwell October 19, 2005 Professor of Constitutional Law By Facsimile to 202/224-9102 Followed by U.S. Mail ‘The Honorable Arlen Specter, Chairman United States Senate ‘Committee on the Judiciary 224 Dirksen Senate Office Building Washington, DC 20510 Dear Chairman Specter: I write in favor of the nomination of Harriet Miers. I have known Ms. Miers for the more than seven years that I have served as Dean of the SMU Dedman School of Law. Having observed her in various capacities, I know her to be a person who is a careful analytical thinker, who is extremely sensitive to the factual context of the issues before her, who is a consensus builder and leader, who listens well, and who is open-minded and impartial, Ms. Miers is also ‘unassuming and sincere. She is compassionate, having played a leading role in establishing legal services for the poor in Dallas and having represented pro bono clients herself, even while serving in leadership roles in various bar associations and as managing partner of her law firm. By way of background, I have taught and written in the field of constitutional law for 24 years. I co-author a casebook and a treatise on constitutional law with Norman Redlich, the former dean of the New York University School of Law; the late Berard Schwartz also of NYU; and now Joel Goldstein, a Rhodes Scholar who teaches at St. Louis University School of Law. I have written many articles about constitutional law in various journals including the University of Chicago Law Review, the New York University Law Review, the Georgetown Law Journal, and the American Journal of Comparative Law. For more than twelve years, I have been privileged to have organized numerous conferences with courts from other countries in which seven of the Justices of the Supreme Court have participated at one time or another. Some of these conferences occurred before my current position at SMU. Others are documented by photographs on our web site (www.SMU.law.edu). Some of these conferences and discussions were opened to the general public while others were behind closed doors with only some professors from SMU and other schools (¢.g., NYU, Oxford, Yale) participating. I have also had the opportunity to observe Ms. Miers in some of her roles as a bar leader, alumni leader of this University, award recipient, and managing partner of a major Jaw firm. I have heard her speak in public on several occasions. As a constitutionalist, I have no doubt that Harriet Miers is extremely well-qualified to be a Justice of the Supreme Court of the Dedman School of Law PO Box 750116 Dallas TX 75275-0116 214-768-8999 Fax 214-768-2182 United States. Ms. Miers’ legal career began as a law student at SMU. The Law School's mission is to train leaders. Currently our alumni include nine federal District Court judges and two members of Congress. Six of SMU’s alumni have served on the Texas Supreme Court and one on the Supreme Court of Missouri; countless have served as state judges. Three have been justices on the Japanese Supreme Court and others have served on the highest courts of the Philippines, Indonesia, Thailand, Taiwan, Egypt (Vice-President), and Korea. Our graduates work in over 70 countries. Many have become CEO's or presidents of companies like State Farm Insurance, Kroger, Texas Oil & Gas, Worldwide Shipping, Cathay Insurance, Stewart Title, Texas Utilities, 7-11 (Southland Corporation), Compaq Computer (Vice Chairman), Omni Hotels, Austin Industries, Transport Life Insurance, the Hart Group, and ClubCorp International; General Counsels of corporations like PepsiCo (Deputy), Fossil, Frito-Lay, Sammons, Brinker International, Dr. Pepper/7-Up, Hunt Oil, Fedex/Kinko’s, Belo Corporation, and Neiman Marcus; bar association leaders; and managing partners and named partners of some of the largest law firms in the country and the world. Others have become government ministers, presidents of parliaments, members of Congress, MP’s, ambassadors, and chiefs of staff of presidents, Among these alumni, Harriet Miers stands right at the top, having received the law school’s Distinguished Alumni Award in 1997, well before she entered the White House. As a student, Ms. Miers also distinguished herself, having served as comments editor of the Southwestern Law Review (now the SMU Law Review) and as a member of the Order of the Barristers, the preeminent service organization at the school which admits fewer than 10 people per class based on service and academic achievement. ‘The Law School has been an innovator in legal education since 1925. We have been among the first schools in the nation to offer a master’s degree in international and comparative law, a master’s degree in tax, and a doctor of juridical science degree. The School also was among the first in the nation to sponsor legal clinics serving low-income citizens in the ‘community. In partnership with Senator Hutchison and the State Department, we organize the Rule of Law Forum which brings high level leaders to the United States to meet with counterparts. Among the leaders who have participated in one or more of the first four delegations are: the Vice-President, seven Senators, three Supreme Court Justices, the Deputy Secretary of State, and the President of the New York Federal Reserve Bank. We are the headquarters of the Appellate Judicial Education Institute, perhaps the preeminent provider of continuing education for appellate judges in the United States. This year’s full-time students had a median LSAT of 162 and an undergraduate GPA of 3.73. We had 2,420 applicants to enroll 181 students in our day program. Our faculty includes scholars like Joseph Norton who holds honorary doctorates at the Universities of Stockholm and London and Mare Steinberg who has organized conferences for Fortune 500 and other corporations, and for the New York Stock Exchange. Marc Steinberg, Alan Bromberg, and ‘many other faculty are frequently quoted in publications like the Wall Street Journal and the 2 New York Times, We also have visiting professors like Judges Patrick Higginbotham and the late Richard Amold of the United States Court of Appeals. Our publications include The International Lawyer, the most widely distributed U.S. international law review in the world. Ofcourse, many lawyers have had great legal educations. The fact that Ms. Miers had a ‘great legal education is only one of many factors which qualify her to be a Justice of the Supreme Court of the United States. What kinds of qualities does the country need in a Justice of the Supreme Court of the United States? That depends on one's conception of the role of the Court. What was the Framers’ conception of the Supreme Court of the United States? As you know, the debates at the Constitutional Convention tell us little about their conception of the responsibilities of that institution which after all has become the centerpiece of the American conception of the rule of law. In Federalist number 78, Alexander Hamilton said that the judiciary’s only power is “JUDGMENT” as the Congress has the power of the purse and the President, the power of the sword. Hamilton also articulated a theory of judicial review in Federalist number 78: he said that a conflict between the “manifest tenor” of the Constitution and a Congressional act must be “irreconcilable” before the Court can act to invalidate the statute. This would appear to imply a narrow power of judicial review, at least with regard to Congressional legislation. I am not suggesting that the Supreme Court has ever followed this narrow view of judicial review articulated by Hamilton, but only that one prominent framer of the Constitution argued for a narrow power in the Federalist Papers. Early in our history, Chief Justice John Marshall staked out a broader power of judicial review, at least with regard to Congressional legislation. In McCulloch v. Maryland, the State of Maryland challenged the power of Congress to establish a Bank of the United States arguing that the Bank is nowhere listed in Congress's powers under Article I, section 8. Marshall responded with a broad interpretation of the power of Congress to establish the Bank; this power is nowhere to be found in Article 1, section 8. Marshall famously opined that “it is a constitution we are expounding.” Like Hamilton, Marshall and James Madison, Ms. Miers has had the unusual privilege of having been part of constitutional moments, those pivotal times when constitutions are drafted, and those involved in that process have to think deeply about the most difficult and foundational constitutional questions imaginable. ‘These questions generally are far more difficult than all but a few and arguably any cases a Justice of the Supreme Court of the United States will face in her entire tenure. I have been privileged to have witnessed such moments although at a far less deep level than Ms. Miers undoubtedly has. For example, I organized what to my knowledge is the first visit of the Russian Constitutional Court to the United States and their first visit with Justices of our Supreme Court. I have team taught with the founding Vice-President of the South African Constitutional Court, with drafters of that new South African Constitution, and with the Deputy of the Supreme Soviet of the Soviet Union who drafted the Estonian constitutional reforms. The pressure of these moments on the key players involved is palpable. Ms. Miers must have thought about such issues, although she appropriately will almost surely not admit to it because of national security reasons and the attorney-client privilege of serving the current President. She had to have thought about them in a way that Supreme Court Justices think about 3