Federal File

Miers on Meyer

Court nominee’s silence on 1923 education case is OK, professor says.

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White House Counsel Harriet E. Miers has been on an uncomfortable path toward the Nov. 7 start of her confirmation hearings to replace retiring Supreme Court Justice Sandra Day O’Connor.

Sen. Charles E. Schumer, D-N.Y., a member of the Senate Judiciary Committee, reportedly was dissatisfied after his 45-minute conversation with Ms. Miers on Oct. 17, in which she was reluctant or unable to discuss a historic education case, Meyer v. Nebraska.

Meyer, which the Supreme Court decided in 1923, is often cited as an important part of the foundation for the “personal liberty interest” the high court has found in the 14th Amendment’s due-process clause, which in turn was central to the court’s 1973 decision in Roe v. Wade upholding abortion rights.

Robert T. Meyer, a teacher at a parochial school, was found guilty of teaching a Bible story in German to a 10-year-old child, in violation of a World War I-era Nebraska law that mandated English-only instruction in public and private schools and allowed foreign-language instruction only after 8th grade.

In overturning the conviction, the Supreme Court ruled that “the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state.”

Liberty, the majority said in Meyer, “denotes not merely freedom from bodily restraint but also the right of the individual … to acquire knowledge.”

The court’s Roe decision cited Meyer as one of a line of cases supporting a constitutional right to privacy.

Sen. Schumer told reporters that he asked Ms. Miers about Meyer and other cases that were important to the right to privacy.

“On many, she wouldn’t give answers. On many others, she deferred, saying, ‘I need to sort of bone up on this a little more, I need to come to conclusions,’ ” the senator said, according to Newsday.

It is unclear whether Ms. Miers was unfamiliar with the 1923 case or whether she was simply wary of dropping any clues about how she might rule on an abortion case.

“I don’t think you hold it against her, that she had little to say about Meyer,” said Perry A. Zirkel, a professor of law and education at Lehigh University in Bethlehem, Pa. “Although it’s a fairly historic education case, and [in] some sense a political case, it’s not one of the top Supreme Court decisions.”

He added, “I wouldn’t hold it against a law professor who didn’t know about [Meyer].”

Vol. 25, Issue 09, Page 36

Published in Print: October 26, 2005, as Miers on Meyer

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