Nomination Watch

The White House fig leaf

No one should be fooled by the explanation offered by President Bush for the withdrawal of the Miers nomination.  President Bush claimed that the nomination could not go forward because Senators “would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House – disclosures that would undermine a President’s ability to receive candid counsel.”  Here’s why this can’t be the real reason: no Senators had actually demanded documents showing Miers’ advice to the President, let alone said they would block her confirmation if such documents were withheld. 

The Judiciary Committee’s questionnaire did ask Miers to identify constitutional issues she has worked on in the White House, and to provide copies of materials reflecting her familiarity with and views on such questions. As the Committee explained, this was to allow the Committee to learn about her experience with and views on important constitutional issues – a perfectly reasonable, indeed necessary, part of fulfilling the Senate’s constitutional duty of advice and consent.  But Senators gave no indication that they were unwilling to work with the White House to get information they needed while letting the White House hold back sensitive materials to the extent possible. 

As we’ve said before, there is wide agreement among scholars and former White House Counsels that the appropriate way to balance the Senate’s needs and the White House’s confidentiality concerns would be to negotiate over what documents to produce and how to produce them. The White House could have at least begun this process to see if a mutually acceptable approach could be found.  Instead, the President seized on a fictional impasse over documents as an excuse to withdraw a nomination that was in trouble for other reasons – like the far-right outcry over her failure to meet their litmus test.

If there’s any doubt about this, just look at the op-ed piece last week by Charles Krauthammer, a conservative columnist who opposed the Miers nomination.  He explicitly said, “We need an exit strategy. I have it.”  What was that strategy?  “Irreconcilable differences over documents.”  Citing this, Krauthammer argued, would allow Miers to withdraw “out of respect for both the Senate and the executive’s prerogatives.”

So there you have it.  A cover story for pulling the plug on the nomination.  There’s just one problem with it: it’s transparently false.

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Our response to Miers’ withdrawal

This morning President Bush accepted the withdrawal of Harriet Miers for Associate Justice on the Supreme Court. National Women's Law Center Co-President Marcia Greenberger had this to say about Miers’ withdrawal:

“The President has made a serious mistake in capitulating to demands from the far right for withdrawal of the Miers nomination, even before a hearing.  It would be extremely harmful for the country if he compounds this error by satisfying the right-wing’s litmus test and naming a hard-right ideologue to the pivotal O’Connor seat.  The last thing this country needs is a swing vote on the Supreme Court who will jeopardize women’s rights and freedoms.

“As the next nomination unfolds, the public has a right to know about the direction the nominee would take the Court.  Senators who called for a better understanding of Miers’ judicial philosophy should not suddenly do an about-face and defend a nominee’s refusal to answer key questions.”

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To the right, self-determination is a bad thing!

In their reaction to a Harriet Miers speech, the anti-abortion crowd has highlighted just what is wrong with their world view: they object to the concept of “self-determination.”  In a 1993 speech, Miers touched upon abortion and the relationship between the law and religion, and then said the following:  “The underlying theme in most of these cases is the insistence of more self-determination.  And the more I think about these issues, the more self-determination makes the most sense.  Legislating religion or morality we gave up on a long time ago.” 

Today’s Washington Post quotes the president of the Texans for Life Coalition as saying she found Miers’ principle of self-determination “troubling.”  Another right-wing group says that expressing support for self-determination makes you a “judicial activist.”  It’s crystal clear what this is about: these folks want Justices on the Supreme Court who will guarantee to uphold government intrusions on our most private and personal decisions – whether it’s about the beginning of life, the end of life, or anything in between.

We don’t know what kind of Justice Harriet Miers would be, and we have plenty of concerns of our own about this nomination.  But we would find it astonishing and distressing if expressing support for self-determination were found to be disqualifying for a Supreme Court nominee.

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The pressure is mounting on the White House to release documents

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.” 

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On Miers, we can walk and chew gum at the same time.

Some of Harriet Miers’ supporters have complained that it is sexist to challenge her fitness for the Supreme Court.  We beg to differ.   Her nomination raises a number of valid concerns – about what’s in her record as well as what is lacking – that are wholly unrelated to her gender. At the same time, there have been some criticisms of Miers that do smack of sexism.  Criticizing a female nominee with a troubling record while objecting to sexist attacks on her – what’s so hard about that?  As columnist Ellen Goodman put it, it’s possible to walk and chew gum at the same time.

That is just what we’ve been doing. While we have not taken a position on the Miers nomination, we have mounting concerns about it. For one, the anti-choice positions she has subscribed to raise serious red flags. And her reported refusals to answer some of the most basic questions that Roberts addressed raise the issue of whether she won’t be forthcoming – or can’t be because she’s not up to it. Neither explanation is very reassuring.

We are examining her commitment to core legal rights essential to women, her grasp of key constitutional issues, and her general fitness for the Court. We won’t fault her for lacking credentials that were off limits to her because of her gender.  As NWLC Co-President Marcia Greenberger pointed out, it is unfair to denigrate Miers’ resume for lacking a Court of Appeals or Supreme Court clerkship when most of those clerkships simply were not offered to women at the time she graduated from law school.  But we will hold her accountable for her judicial philosophy and her overall fitness to serve on the Supreme Court.
            
So you’ll hear from us when we see a judicial nominee, female or male, who we think will do harm to women’s rights and who we conclude doesn’t belong on the Court.  And we won’t sit demurely by when we see sexist attacks on a female nominee.

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“A do-over on a take-home quiz”

As we noted when Harriet Miers submitted her answers to the Judiciary Committee’s questionnaire, her answers were incomplete.  Kudos to Senators Specter and Leahy, the Republican and Democratic Committee leaders, for insisting in a follow-up letter that she respond fully.  It’s extraordinary for a Supreme Court nominee to have to do a “do-over on a take-home quiz,” as the New York Times so nicely put it, but it’s necessary.  After all, an “Incomplete” is not going to be an acceptable final grade here – it will be Pass or Fail.

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A troubling Miers flip-flop on the right to privacy and dramatic revelations about her support for anti-choice policies

Harriet Miers has some serious explaining to do.  One minute, according to Senator Specter, she told him that she believes there is a right to privacy in the Constitution and that she supports the Griswold and Eisenstadt decisions – two Supreme Court cases upholding the right to privacy in the context of contraceptive use (by married and unmarried couples, respectively).  But the next minute, she reportedly told Senator Specter that he misunderstood her and that she has taken no position on Griswold or the right to privacy. 

Since the Senate rejected the nomination of  Robert Bork, who refused to accept the Court’s conclusion in Griswold that there is a constitutional right to privacy that protects a married couple’s use of contraception, no Supreme Court nominee has been confirmed without expressing support for at least Griswold’s holding.   Clarence Thomas and John Roberts both testified that Griswold was correct --  although both refused to say the same about Eisenstadt, and once on the Court, Justice Thomas said the Constitution contains no general right of privacy.

So, does Harriet Miers go further than Clarence Thomas and John Roberts were willing to go in their confirmation hearings, and agree not only with Griswold but with Eisenstadt as well, as she apparently told Senator Specter initially?  Or does she refuse to join every Supreme Court nominee since Bork in at least accepting Griswold and its application of the right to privacy?  These are critical questions that must be answered.

On top of the confusion this flip-flop has created about Miers' views on the right to privacy, concerns about her nomination are compounded by the White House’s release of a Texans United  for Life questionnaire showing Miers’ support, in 1989, for a series of anti-abortion policies.  A question asking if she would actively support Texas ratification of a constitutional amendment to ban abortion except when necessary to protect the life of the woman is checked "yes" -- which means she believed the Constitution should ban all abortions, anywhere in the country, and even in circumstances when such a ban would endanger a woman’s health.  A question asking "will you use your influence as an elected official within the confines of your oath of office to promote the pro-life cause?"  is also checked “yes,” raising ominous questions about whether she would be inclined to use her power as a Supreme Court Justice to “promote the pro-life cause.”   This new information is extremely troubling, to say the least. 

By our lights, the case for Miers' nomination to the Supreme Court has now become an even harder sell. 

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Nathan Hecht, again: Did he say Miers will reverse Roe v. Wade?

We noted earlier this week that one of the Texas judges who has been outspoken in his support for Harriet Miers, Nathan Hecht, was accused by fellow Texas Supreme Court Justices in an abortion case of “feel[ing] free to translate his personal beliefs into a judicial decision.” We expressed our hope that Miers, if confirmed, would not follow his approach to judging.  Justice Hecht is now back in the news, in a story that sends ominous signals about Miers and abortion rights. 

Reports surfaced this week, including in the Washington Post, that Justice Hecht and a federal judge from Texas named Ed Kinkeade, on a conference call with conservative leaders the day the Miers nomination was announced, assured the listeners that Miers would vote to reverse Roe v. Wade.  Justice Hecht told the Post, “I don’t recall saying that,” and Miers told Senator Schumer that no one knows how she would rule on Roe v. Wade.  But the Post reported that at least one person on the call confirmed the account of what Justice Hecht and Judge Kinkeade said.

The Senate needs to get to the bottom of what was said on that phone call.  Were assurances made that Harriet Miers would vote to overrule Roe v. Wade?  If so, by whom, and based on what information? What do these people know about Miers' views on the law that led them to say that or believe it? Had Miers given this assurance herself, or signaled it in some way?  Too much is at stake to fail to get answers to these questions.

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A hearing on Nov. 7, ready or not?

Some reports indicate that the Senate Judiciary Committee hearing on the Miers nomination may be held the week of November 7 – less than three weeks from now.  This seems a bit hasty.  The President announced his selection of Harriet Miers on October 3, which would mean only 36 days from the announcement to the start of a hearing on November 7.  Few nominations in modern times have moved that quickly.  For the Roberts hearing, there were 56 days between the announcement (July 19) and the start of the hearing (Sept. 12); for the Thomas hearing, it was 65 days, and for the Bork hearing it was 77 days.

A hearing in early November simply may not allow enough time for a thorough investigation of Miers’ record.  As we said earlier, the Senate is entitled to examine relevant White House documents, especially in light of the paucity of publicly-available information on her legal analysis and legal views.  In addition, time is needed to follow up on the answers Miers gave today to the Senate Judiciary Committee’s questionnaire, which are incomplete. For example, question 17 asked her to “describe in detail” any cases or matters she addressed as an attorney or public official which involved constitutional questions.  For each such case or matter, it asked for a detailed description of “the constitutional issue you dealt with, the context in which you dealt with it, and the substance of any positions you took related to that issue.”   With respect to her position as Counsel to the President, Miers responded with the vague assertions that she “is regularly faced with issues involving constitutional questions” and that she advises the President and other officials on “presidential prerogatives, the separation of powers, Executive authority, and the constitutionality of proposed regulations and statutes.”  The requested details are missing.  The Senate is entitled to this information before it moves forward with a confirmation hearing. 

The Committee should not set a schedule that fails to allow for a thorough examination of Miers' record and the vigorous advice and consent process that the Constitution requires.

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Senators and the public are entitled to White House documents

President Bush, asked if he would release documents reflecting work Harriet Miers has done since coming to the White House, had this to say: “[I]t’s important that we maintain executive privilege in the White House . . . . I happen to view it as a distraction from whether or not Harriet Miers is capable of answering the questions she’s asked. . . .  It’s a distraction from whether or not she’ll be a good judge.”

Actually, documents shedding light on Miers’ views on important legal issues and the quality of her legal reasoning are hardly a “distraction”; they go to the heart of whether she would be a good judge.  Especially given that the publicly-available record on Miers is so thin as to be practically non-existent, these documents must be examined. 

Moreover, there is no absolute, unqualified privilege that permits the White House to refuse to turn anything over to the Senate.  As Martin Garbus has pointed out, the Supreme Court unanimously rejected a claim of absolute executive privilege when President Nixon tried to withhold White House tapes in 1974.   

In fact, as shown in an October 11th National Law Journal article (subscription required), there is broad agreement that executive privilege has to be applied here in a way that balances the interest in the confidentiality of internal White House discussions against the Senate’s Constitutional responsibility to give advice and consent on a Supreme Court nomination.  Former White House Counsels from both Republican and Democratic Administrations, along with a number of scholars, agree that this means a blanket refusal to turn documents over to the Senate is not acceptable.  Peter Wallison, former counsel to President Reagan, is quoted in the article saying, “Miers’ case is special. . . because there is no other basis on which anyone can make a judgment about her.  If we want to know how she thinks about various things the government deals with from time to time, we have to examine what she has expressed on issues that are privileged.”  He said he would probably advise that the privilege be waived for certain things and with the understanding that this is a special circumstance.  Similarly, Beth Nolan, former counsel to President Clinton, said the assertion of executive privilege (if it is asserted at all) “requires negotiations between the branches” over what documents to produce and how to produce them.  A research specialist at the Congressional Research Service agrees, as does Mark Rozell of George Mason University, author of “Executive Privilege: Presidential Power, Secrecy and Accountability.”

Professor Rozell summed up, “The Senate needs access to [Miers’] work” and Senators would be “derelict” not to request White House documents and not to “push hard” for them.

We agree.

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