Following a background report, Senate Judiciary Committee Chairman Arlen Specter and ranking Democrat Patrick Leahy discuss the state of the Harriet Miers Supreme Court nomination.

Editor's Note: Harriet Miers withdrew her nomination on Oct. 27 in the face of mounting criticism. (News story)

Background


Discussion

KWAME HOLMAN: Harriet Miers made more courtesy calls to the offices of U.S. Senators this week, this morning meeting with Louisiana Republican David Vitter, one of the Senate's more conservative members.

SEN. DAVID VITTER: David Vitter. Good to see you again.

KWAME HOLMAN: While these information sessions with the nominee are a traditional part of the confirmation process, much of what is known about Harriet Miers has been revealed by the press. Journalists have been searching her past for what she said, when she said it and who she said it to.

Today's Washington Post, for instance, reported on speeches Miers gave in the early 1990s, which seemed to indicate a preference for self-determination on social issues such as abortion and school prayer.

Senator Vitter said he did ask Miers about the report during their 50-minute closed-door meeting.

SEN. DAVID VITTER: Well, first of all, to back up, what I've said is my main question as I work through this whole process is: Does she have that consistent and well-grounded conservative judicial philosophy and is there objective evidence that shows that going to her previous work before the nomination? And that remains my central question in looking at this nomination in general.

Certainly, this recent story, you know, adds to that debate. But it's not dispositive in my mind one way or the other.

KWAME HOLMAN: Away from the Capitol, however, conservatives opposed to Harriet Miers are organizing. A group calling itself Americans for Better Justice today launched a $250,000 media campaign, urging her nomination be withdrawn.

AD SPOKESPERSON: Even the best leaders make mistakes. Conservatives support President Bush but not Supreme Court nominee Harriet Miers. Judge Robert Bork says "I don't think she's qualified" and calls Miers' nomination "a disaster on every level." And Rush Limbaugh says, "I am totally behind the president... but I disagree with this nomination." America deserves better.

KWAME HOLMAN: Told of the media campaign yesterday, John Cornyn of Texas, Miers' leading defender in the Senate, asked that the nominee simply be given the courtesy of a hearing.

SEN. JOHN CORNYN: Well, I think it's not constructive to suggest that a nomination be withdrawn before the nominee has actually had a chance to be heard. It strikes me as fundamentally fair to say that before people pass judgment on the nominee they ought to get to know something about her and to make an informed judgment. Once they do, then certainly any senator is at liberty to vote the way they want.

KWAME HOLMAN: Meanwhile, Miers was expected to respond by the end of the day to a list of follow-up questions from the Senate Judiciary Committee. The committee's chairman, Arlen Specter and ranking Democrat Patrick Leahy last week said several of Miers' responses to their original questionnaire were unacceptable.

JIM LEHRER: And joining us now are Senators Specter and Leahy.

First, Senator Specter, just in general, is the Miers nomination in serious trouble?

SEN. ARLEN SPECTER: I do not believe it is in trouble. I believe it all turns on the hearing. There's been a lot of talk I think that Ms. Miers has been subjected to more criticism and abuse in a shorter period of time than anybody that I can recollect, but the Constitution provides that the Senate makes the decision, not television ads and that there be a hearing before the Judiciary Committee. And Senator Leahy and I are committed to a full, fair hearing and Ms. Miers will have a chance to make her case. And the way it's developing it's all up to her.

JIM LEHRER: Senator Leahy, do you agree that it's too early to say the nomination itself is in trouble either before your committee or to the general Senate?

SEN. PATRICK LEAHY: You know, one, I agree with what Arlen just said but -- it is crazy in a way the way people jump out and say I'm all for this person or I'm all against this person before you even have the hearing.

There's 280 million Americans who are going to be affected by what we decide on this one nomination. There's only 100 of us get to vote on it. I think we have a responsibility-- we stand in the shoes of this 280 million -- to wait, hold the hearing and then determine.

A lot of people decided they would vote for or against or actually for Chief Justice Roberts before the hearing. I felt we should wait for the hearing and then decide how we would vote. I feel the same way here. I think many of us in the committee -- in both parties -- want to ask real searching questions.

What Ms. Miers does in her questionnaire, what she does in answers to some of the preliminary questions will help in that process but ultimately, we should have a record that would allow senators to make up their minds to either vote for her or against her based on the hearing.

JIM LEHRER: Senator Specter, have you heard any credible information about the possibility that she might withdraw?

SEN. ARLEN SPECTER: No, I have not. People are asking her to -- people who are dissatisfied with not knowing how she's going to vote. But I've gotten to know the president last year when he made more than 40 trips to Pennsylvania on the campaign. And up close his persona is very different from the public persona. And he's a determined fellow and I don't think he's going to withdraw her nomination at all.

JIM LEHRER: Do you agree with that, Senator Leahy?

SEN. PATRICK LEAHY: I do. I mean, it would be really amazing -- or it certainly would amaze me if the president suddenly withdrew her nomination. He's stated very clearly to both Senator Specter and myself and others that he has no intention to do so. I take him at his word.

JIM LEHRER: But, Senator Leahy, what would you say to those folks -- well, just picking up on what Senator Specter said a moment ago, he's never seen a candidate or a nominee treated like this before. How much more suffering should this woman go through if, in fact, the votes are not there?

SEN. PATRICK LEAHY: You know, every one of us -- it's hard to say what kind of suffering you go through. Every one of us have gone through some pretty tough campaigns and probably suffered a lot. And that's for a six-year term. Here we're talking about somebody, if she is confirmed, it's to a lifetime position. I think if it was me I'd be willing to put up with --

JIM LEHRER: Sure.

SEN. PATRICK LEAHY: -- a little bit of this on the way.

Also, keep in mind some of the groups -- actually the only groups that have been opposing her have been those who are supporters of President Bush, which is interesting, certainly for a Democrat it is very interesting.

But it's just that certain groups came out against Chief Justice Roberts, they have a First Amendment right to do that. Frankly, I've never been influenced by either groups on the left or on the right -- as my last vote demonstrated -- and I'm not going to be influenced this time.

JIM LEHRER: Senator Specter, you sent Harriet Miers a letter today. You outlined some of the questions that you expect to ask her at the hearing. You put great emphasis on the issue of her independence from President Bush. What is your concern there, senator?

SEN. ARLEN SPECTER: The concern is that she has been very close to the president for five years in the Oval Office.

JIM LEHRER: As the White House counsel.

SEN. ARLEN SPECTER: As White House counsel and as secretary and as deputy chief of staff. And there may be matters coming before the court if she's confirmed where she would be called upon to vote. One of the issues is recusal -- a complicated word which means she would remove herself from the case. But having been subjected or having been involved so closely with the president, she might be biased in favor of executive authority.

And those questions go to the power of the president as contrasted with the power of the Congress, and those are questions which I wanted to give her notice on in advance that they would be asked just like I wrote two letters to Chief Justice Roberts before his confirmation hearing.

JIM LEHRER: Senator Leahy, do you have a similar central questions or a few central questions that you want to clear up before this thing is resolved?

SEN. PATRICK LEAHY: I do. I've already talked with her once. I told her it's not a game of gotcha but we want to have some clear answers. One is in the same area: To what extent is she going to be independent of the White House? Some of her supporters have told each other, don't worry, she'll vote just the way President Bush wants her to.

I don't want anybody who's going to vote the way a president wants him to. I want somebody who's going to be truly independent. I said to the president I want somebody who's going to treat -- it's not going to make any difference whether it's George Bush or Patrick Leahy or George Smith or Patrick Jones that they're going to treat them independently. But we have to know.

The White House has worked on everything from torture policy to changes in the environmental laws. All of those things may be on their way eventually to the U.S. Supreme Court. I think we have to know how involved was she, and is she going to step aside in policy she may have helped put together if it is before the Supreme Court for final adjudication?

JIM LEHRER: Senator Specter, both you and Senator Leahy were very critical of her answers in that first questionnaire, the new -- the kind of revised version is due to you all today. I assume you haven't gotten it yet, right?

SEN. ARLEN SPECTER: It was due at 6:00. And I wanted to be on time for this show so I left before 6:00.

JIM LEHRER: Do you expect, Senator Specter, that there is something in this, that there's something she could do in her new answers to this questionnaire to kind of turn the tide in her direction? Is it that big a deal, this questionnaire?

SEN. ARLEN SPECTER: I think it will be helpful to have more complete answers so we know where she stands. But the time for her to assert herself is when she makes her opening statement. And I've sent word to the White House and have urged her to be very forceful and to lay out her case and to start right off by answering her critics by letting it be articulated in some detail as to her background and her capacity to undertake this job.

Listen, as a civil lawyer she handled a lot of complicated cases. And I think there's an inference that she can handle constitutional law cases but that has to come from her not from me or anybody else.

JIM LEHRER: Senator Leahy, in addition to the questionnaire there's also this issue about writing she may have done when she worked at the White House. And there was a story today saying you all are, quote, negotiating with the White House about it. The president said flatly you can't have them. So what's going on?

SEN. PATRICK LEAHY: As a practical matter past presidents have always said you can't have any of that, then usually they negotiate and you do get a lot of it.

I think, one, the questionnaire she gives in today will be extremely important. Nobody is going to get a third chance to do over a questionnaire. If she's done a very good job in the questionnaire, I think it puts her in good stead for the hearings. If it is incomplete like the first one, I think that puts a whole cloud over the hearings but the president has said he picked her primarily based on her work in the White House. That's what convinced him, as he said, that she is the most qualified person in America to be on the court -- his words, not mine.

But if it was her work in the White House that made him say she's the most qualified person in America to be there, I think we ought to at least know if we're the 100 to have to vote on her what it was that she did that makes her the most qualified person in the world -- or most qualified person in the country.

JIM LEHRER: Senator Specter, do you agree these papers are important for you all to get? Is that a tough issue here?

SEN. ARLEN SPECTER: I think they're very important. But we have asked for papers that do not impinge upon executive privilege. Let me give you an illustration. We've asked that she enumerate the matters that she worked on. Not that she -- not that we want to ask her what advice she gave to the president.

For example, Guantanamo detention is a very big issue, and if that case comes before the court, we ought to know if she's worked on it but not asking the president what advice was given to him.

JIM LEHRER: I see.

SEN. ARLEN SPECTER: There are many areas where she can answer questions which, as Senator Leahy and I and others -- listen, there are two other Republicans who have independently gone to the White House and said we want to know more. This is something which is very widespread within the committee and I think really within the Senate.

JIM LEHRER: Before we go, senators, I can't let you go before asking you something about this other big story that's going on in Washington. Both of you are former prosecutors, and you make that case quite often.

Senator Leahy, beginning with you, what do you think of the job special prosecutor Patrick Fitzgerald is doing, just based on your observation?

SEN. PATRICK LEAHY: Well, I know Special Prosecutor Fitzgerald. Of course he came before our committee to be confirmed. Everything I've ever been told by other prosecutors, both Democratic and Republican, say he's extremely thorough, extremely fair, extremely conscientious. I would remind people that no matter what crimes are being looked into, even though it's --the grand jury's for criminal matters, of course, even if charges are brought, the person is presumed innocent. But I think Patrick Fitzgerald from everything I've ever heard about him, everything I've ever seen in talking with him strikes me as being somebody who is extremely competent, extremely thorough and extremely fair.

JIM LEHRER: Senator Specter as a matter of principle if an official of the White House is indicted on a criminal matter, should he or she resign?

SEN. ARLEN SPECTER: I think the individual would be really best advised to step down until the charges are cleared. Let me answer the question that you asked Senator Leahy.

JIM LEHRER: About Fitzgerald, right.

SEN. ARLEN SPECTER: About Special Prosecutor Fitzgerald. He hasn't said anything and that's as it should be. But I want to see his work product. He's run a long-term investigation. He had a reporter in jail for 85 days. I want to see what the issues are of national importance, which warrant that kind of a detention. And I want to see his work product.

It's a lot like Harriet Miers. I want to see what he has to say before I will evaluate his work.

JIM LEHRER: Okay. Senator Specter, Senator Leahy, thank you both very much.

SEN. ARLEN SPECTER: Nice to be with you. Thank you.

SEN. PATRICK LEAHY: Thank you.