Nominee. Few hints so far of Miers' views. (Photo courtesy of White House Photo/Paul Morse)

As the Supreme Court was set to open its fall term Oct. 3 under new Chief Justice John Roberts, observers from industry, labor unions and environmental groups were poised to look for early hints of how the "Roberts Court" will define itself. But not even two hours before the term formally began, President Bush threw a new variable into the equation, announcing he would nominate White House Counsel Harriet Miers to replace retiring Sandra Day O’Connor as an associate justice.

Bush said Miers, a former Dallas City Council member and State Bar of Texas president, "will strictly interpret our Constitution and laws" but would not legislate from the bench. Miers hasn’t been a judge, so court-watchers have no rulings to consult for signals of where she stands on key issues.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) pledged a thorough review of the nomination. He didn’t set a deadline for finishing the task, but said, "I would not expect it to go into the new year." Senate Minority Leader Harry Reid (D-Nev.) didn’t say how he would vote, but noted, "I like Harriet Miers....A nominee with relevant non-judicial experience would bring a different and useful perspective to the court."

There appear to be no major construction cases yet on the Supreme Court docket, industry attorneys say. But they add that petitions may reach the court this term to hear environmental and labor relations cases now in lower courts.

On an early October list of such petitions are two Clean Water Act cases, U.S. v. Rapanos and Carabell v. U.S. Army Corps of Engineers, that center on the question, "What’s a navigable water?" says Duane Desiderio, National Association of Home Builders staff vice president for legal affairs. He says that definition determines Corps and Environmental Protection Agency permitting jurisdiction. The court’s 2001 Solid Waste Agency of Northern Cook County ruling set Corps permitting limits. Desiderio contends it "raised more questions than it answered." Since then, the court has turned down at least six petitions to clarify the 2001 decision. "We’ll see what they do with Carabell and Rapanos," he says.

For the Associated Builders and Contractors, the big issue nearing the court is local government "neutrality" on labor unions, says Maurice Baskin, general counsel to ABC. He says several cases are in appeals courts and expects the Supreme Court this term to be asked to take at least one. An underlying issue is the scope of the court’s 1993 "Boston Harbor" project labor agreement ruling. "I think the Supreme Court is going to have to step in to keep its earlier decision in Boston Harbor from being expanded beyond all bounds," he says.