Senators on the Judiciary Committee, from both parties, are saying that the White House should release documents that will shed light on Harriet Miers’ work and views. This past weekend on Fox News, Senator Sam Brownback, R-KS, said “providing this type of information from the White House is almost a risk they assume when you nominate a candidate [for the Supreme Court] that’s from inside the White House. We need to know if we’re going to give advice and consent, and that’s our role in this process – it’s not a rubber stamp.” On the same program, Senator Pat Leahy, ranking Democrat on the Committee, said he agrees with Senator Brownback. Senator Lindsay Graham (R-SC) has also said he believes the Committee should see documents that “would give us a window” into some of her views. “Where there’s a close call,” he said, “the tie goes toward disclosure.”
Apparently reacting to these developments, yesterday President Bush said that requests for “paperwork” about White House decision-making or Miers’ recommendations to him would not be granted. We hope that doesn’t signal an absolute refusal to turn documents over to the committee. As we have said, that position is not sustainable. In fact, our view has been echoed in recent days by law professors from across the country.
Last Thursday, over 70 law professors wrote to Senators Specter and Leahy urging the Senate to insist that documents written by Miers, especially concerning issues likely to come before the Court, be produced. They made the case that “President Bush should not be able to invoke executive privilege to prevent the Senate from fulfilling its constitutional duty to evaluate a nominee for the nation’s highest court. . . . If Miers has written memos to the President about cases on the Supreme Court’s docket or about issues likely to come before the Court, the Senate has the right to that information.”
Separately, New York University law professor Stephen Gillers, an expert in legal ethics, has written that a “categorical refusal to waive privilege for all of Miers’s advice since January 2001” is not justified. Professor Gillers offers the following advice to the Senate: “If the Administration stonewalls, the senators must stare it down, not buckle. It is an insult to the Senate and the nation for Bush to say that Miers is the best possible choice for the Court, or even a worthy one, and then cavalierly block discovery of the very information that supposedly supports this claim. This is not a partisan issue. It’s about the Senate’s institutional integrity – indeed, its constitutional relevance.”
Or, as Senator Brownback put it, “If we’re to give advice and consent, we’ve got to have a full picture.”