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Contested Miers Nomination

October 4, 2005 at 12:00 AM EDT
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MARGARET WARNER: The nomination has caused a split among the president’s conservative supporters. Two conservative constitutional scholars offered contrasting views this morning on the Washington Post’s editorial page. And the two authors join us now. Douglas Kmiec, professor of constitutional law at Pepperdine University Law School lauded the president’s decision. John Yoo, former deputy attorney general during the president’s first term and now a law professor at the University of California at Berkeley, criticized the president’s choice. Joining them from the other side of the ideological spectrum is Pam Karlan, professor of public interest law at the Stanford Law School.

MARGARET WARNER: Welcome to you all.

John Yoo, you wrote this morning that the president swung and missed with this appointment. What did you mean?

JOHN YOO: Well, I think the president had a great opportunity to change the direction of the Supreme Court in a more conservative direction because Justice O’Connor is a decisive vote on a wide sweep of the most interesting and important issues like abortion, affirmative action, and so on. And President Bush basically chose not to take that approach. One thing I’ve been saying is that you can think of this as being a faith-based nomination, because the president is asking that Republicans and his supporters take it on faith that Harriet Miers is the kind of person who lives up to his campaign pledge that he would appoint justices like Scalia or Thomas. But Scalia and Thomas had very clear track records and public positions on constitutional law when they were nominated. And as we just saw in the clips, Harriet Miers, apparently, does not.

MARGARET WARNER: And Doug Kmiec, do you think that the president missed an opportunity to really with some certainty know he is reshaping the court to the right?

DOUGLAS KMIEC: Margaret with all respect to my colleague John Yoo, I don’t believe he missed an opportunity. I think he was faithful to the pledge that he made, which is to appoint individuals who have a restrained and proper understanding of the judicial role. The president says this over and over again, that his primary criterion, indeed, the essential criterion is that judges are not to be policymakers — that they are to observe the separation of powers.

Harriet Miers in accepting the president’s nomination repeated just that. And those who know her from her years of practice in Texas indicate that she is a very careful, very responsible lawyer who would operate in that fashion. So I think the president is not picking someone who has a conservative political or ideological agenda, but someone who observes the structure of the Constitution. And that’s the most important conservative value.

MARGARET WARNER: Professor Karlan, what do you make of this disagreement on the right over this? And do you think looking at her record you can discern where she stands on the spectrum of, you know, ideologue to pragmatist?

PAM KARLAN: I honestly don’t think we can discern virtually anything from what we now know. What we know right now is that Harriet Miers is familiar with, loyal to, and understands the president. What we don’t know is whether she is familiar with, understands and is loyal to the precedents that the Supreme Court applies because we’ve never seen her in a role of any public kind in which she has been involved in constitutional litigation, constitutional adjudication, statutory interpretation. And I think until we know that there is no way of knowing what kind of judge she would be if she was appointed to the Supreme Court.

MARGARET WARNER: So Professor Yoo, is that what bothers you, that there is no judicial record, there is nothing that she has written where you know which way she will — what her philosophy is? In other words, the president keeps saying I know her judicial philosophy but you are saying that is not enough?

JOHN YOO: Yeah, I think I agree with Pam and I actually agree with what Doug said, in this respect. The president and Harriet Miers are saying they believe in judicial restraint. Every justice on the Supreme Court right now says they believe in judicial restraint. I’m sure if you look at every nominee in the last 25 years when they were nominated said they believed in judicial restraint.

I don’t think it’s enough, if you really want to say the president is living up to the campaign pledge of nominating someone like Scalia and Thomas to say well, I’m nominating someone who just says they believe there judicial restraint. To live up to the Scalia-Thomas standard I think you’d want more. And I quite agree, the only thing we really have here is her close association with the president.

And I have no doubt that she won’t vote in a way while President Bush is still president in a way that will embarrass him. But what happens after the next three years? She will be on the court for 20 years, probably. What are we going to expect from her then once her close friend and confidante is no longer the president? What is going to guide the way that she makes decisions? We have no record or way of figuring that out.

MARGARET WARNER: Professor Kmiec, address that point about whether — let me ask it this way. Are you accepting in what you said that she is not a movement conservative? In other words, do you agree with Professor Yoo and you just don’t think there is anything wrong with that?

DOUGLAS KMIEC: Well, that’s right –

MARGARET WARNER: From a conservative perspective?

DOUGLAS KMIEC: If you are appointing someone who is going to be faithful to the judicial role, that’s the essential conservative value, that’s my point — not whether they have the right view on affirmative action or the right view on abortion or the right view on a whole host of hot-button issues.

The point the president is making and the point that the Constitution, I think, tries to make is that those issues, those great moral debates, those great policy debates are to occur in the legislature, and they are to occur in the dynamic between the executive and the legislature. And the courts are to be faithful to what that policymaking body creates. I think that’s what John Roberts tried to say consistently in his hearings. I expect that is what Harriet Miers will say.

One other point, Margaret: This person is a different type of nominee. I admit that. I do want to know more about what she understands about existing constitutional doctrine and her respect for precedent. And I fully expect that she will address that in the hearings. But she’s a practitioner like Lewis Powell, like Byron White, like William Rehnquist. She is not someone who comes with a big academic portfolio of articles or treatises; she is not someone who comes from previous judicial experience, but she brings this wonderful practical insight from the practice of law which I would think is cheering up hundreds of thousands of lawyers around the country who say at last, here’s someone who knows the work we do and the practical significance of getting a Supreme Court opinion that is understandable and accessible.

MARGARET WARNER: I would like to ask you, all three, about two things the president said with great certainty. And he says one: she knows exactly the kind of judge I’m looking for. And I know exactly the kind of judge she’ll be. And secondly, he said two or three times: I know her well enough to say she’s not going to change, that 20 years from now she’ll be the same person with the same philosophy.

Pam Karlan, I will start with you. One: do you think that raises any questions about her independence or on the other hand, how can the president possibly know whether she will change or not?

PAM KARLAN: Well, if the president is right, that she is somebody who is not going to change at all, that’s a very troubling idea when it comes to the Supreme Court because let’s face it, this is a woman who has never sat on a death penalty case, who has never thought deeply in any public way that we know about, about habeas corpus or the relationship between the federal government and the states, or the use of international law, or how to construe administrative regulations. And the idea that nothing she does or nothing she learns on the Supreme Court would change her is really quite a terrifying one.

The second thing to point out is the president says what he wants are judges who will let the legislature legislate but he also says he admires Justices Scalia and Thomas who have voted during their time on the court to strike down more federal laws and more state laws, probably, than any two justices in modern times. So it’s very hard to know what precisely the president wants.

And of course for us, it’s been impossible to know whether Harriet Miers is that person or isn’t. And I think until we know that, it is very hard to make any kind of intelligent decision about whether she should be sitting on the Supreme Court or not.

MARGARET WARNER: Professor Yoo, what did you think when you heard the president say I know she’s not going to change her judicial philosophy over 20 years? Did you find that reassuring or like Professor Karlan, did you find it troubling?

JOHN YOO: I found it mildly reassuring but I don’t think it answers the deep questions because I think one thing that is probably becoming clear is she probably hasn’t had to think about a lot of questions that the Supreme Court has to face along the lines that Pam listed. The second thing is, this is very much — the way to understand this is very much a reaction, I think, to his father’s appointment of Justice Souter.

The great fear I think amongst conservatives is that someone will be put up into office in the Supreme Court who will “grow in office,” and conservatives generally think justices who are more of a blank slate tend to grow to the left. The sun somehow shines on the plant from the left. And because of that, that’s why President Bush keeps repeating she won’t change. She’s going to stay steady. But it doesn’t mean a lot if we don’t know what the starting point is.

So again, it goes back to this idea that the president and his advisors are asking us to take it on faith that they have a certain personal knowledge of her that will allow her — allow them to conclude that she won’t grow. But I might add this is the same kind of thing that the Bush administration, the father said about Justice Souter. I think at the time they said Justice Souter would be “a homerun” for conservatives. So I think that is why conservatives are uneasy to be asked to take it on faith on this time.

MARGARET WARNER: Professor Kmiec, are you uneasy at all about this assertion by the president?

DOUGLAS KMIEC: Margaret, I think the president means that he believes that Justice Miers or Harriet Miers will be principled, and consistent and coherent in her approach. And I think that those are all fine qualities.

I simply must disagree with my two colleagues about what we can know and will know about Harriet Miers. Of course much needs to be learned yet. But this is a woman with over two decades of experience in practice. She has hundreds of clients, many of them Fortune 500 companies, but also someone who reached out in terms of pro bono work to address the legal aid needs of her community. These are people who know her well.

And I would also like to point out that when I review the Supreme Court’s docket every year, it’s not just constitutional cases that deal with free speech and freedom of religion and all the things we like to talk about, but a good deal of it is dealing with federal regulations and federal statutes, exactly the kinds of materials that Harriet Miers has had to work with in her federal litigation practice in Texas and materials that she’s well familiar with.

MARGARET WARNER: I want to ask you briefly, I probably won’t get to all three but John Yoo, I will start with you, briefly if you can, the New York Times editorialized today that the reason the president didn’t get someone of the type you wanted is it really a commentary on how politicized the system has become, that you really — the system can no longer handle a nominee with a clear judicial philosophy, clearly expressed, that is strong on either side. Do you think that’s the case?

JOHN YOO: I think that is true. I also think that Miers will probably be confirmed and that you will have a far less contentious hearing. It’s hard to imagine the Democrats filibustering or the Republicans needing to break a filibuster. So I think that’s right. I think the president and his advisors picked someone without a clear ideology; it will lead to a less contentious hearing and perhaps a repairing of the – the byproduct is a repairing of the confirmation process that’s probably been broken ever since Robert Bork was defeated in 1987.

MARGARET WARNER: Pam Karlan, your thought on that?

PAM KARLAN: Well, I think the hearings are going to be critical. And I’ll tell you the question I would most like answered there which is: I think that executive power is going to be the major issue of the next ten years on the Supreme Court. And I would like to know whether Harriet Miers can name three examples of executive power by Republican presidents that she thinks is unconstitutional.

MARGARET WARNER: All right.

PAM KARLAN: Otherwise I don’t know that she is independent enough.

MARGARET WARNER: All right. And we have to leave it there with that question. Thank you all three.