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Battle Over Miers Nomination

October 10, 2005 at 12:00 AM EST
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MARGARET WARNER: The conservative furor over the nomination of White House counsel Harriet Miers to the Supreme Court began almost immediately. And it hasn’t let up.

GARY BAUER: She sounds to me a lot like another swing vote, which was the last thing we were expecting a conservative president to give us.

MARGARET WARNER: Weekly Standard editor Bill Kristol who has called on President Bush to withdraw the nomination wrote: “He has put up an unknown and undistinguished figure for an opening that conservatives worked for a generation to see filled with a jurist of high distinction”

Columnist Charles Krauthammer wrote in the Washington Post: “If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke…”

The anger within the president’s party has forced him to defend Miers several times this past week, most recently in his radio address on Saturday.

PRESIDENT GEORGE W. BUSH: Harriet Miers will be the type of judge I said I would nominate – a good conservative judge.

MARGARET WARNER: The White House also has rallied some prominent conservatives to speak up on Miers’ behalf.

SPOKESMAN: I think this woman is a woman of enormous accomplishment.

MARGARET WARNER: But even that effort has generated controversy. One member of that circle, conservative activist James Dobson, told his radio listeners last week that his conversations with presidential advisor Karl Rove convinced him Miers opposes abortion.

JAMES DOBSON: When you know some of the things that I know, that I probably shouldn’t know, you will understand why I have said with fear and trepidation that I believe that Harriet Miers will be a good justice.”

MARGARET WARNER: That upset Republican Judiciary Committee Chairman Arlen Specter, who will oversee the confirmation hearings.

SEN. ARLEN SPECTER, R-PA.: And if there are backroom deals and if there is something which bears upon a precondition as to how a nominee is going to vote, I think that’s a matter that ought to be known by the Judiciary Committee and the American people.

MARGARET WARNER: The Washington Times reported today that 27 Republican senators, roughly half the caucus, have either expressed doubts about Miers’ nomination or said they’ll withhold judgment until the hearings.

MARGARET WARNER: And to join the debate now, we go to Jay Sekulow, chief counsel for the American Center for Law and Justice — his organization of one and a half million members is mobilizing a national campaign to ensure that Miers is confirmed; and David Frum, a former speechwriter for President Bush, now a contributing editor at the National Review, he’s written online columns sharply criticizing the Miers nomination.

Welcome to you both.

David Frum, you been one of the most outspoken conservative voices against this nomination. Why?

DAVID FRUM: Stakes are so enormous in this seat. This is something as Bill Kristol said, the conservatives have worked for, for a long time, but we don’t just want to put a voting machine there. We want to give the country our best. That’s what we owe. Republicans owe the country their best, just as Democrats do. There are so many excellent people, men and women the president could have chosen and he chose someone who just isn’t good enough.

MARGARET WARNER: Just isn’t good enough, Jay Sekulow, we’re hearing that a lot from many conservatives. What’s your response?

JAY SEKULOW: Well, I think, number one, and I think it’s important here, this is an important vote and important seat on the Supreme Court of the United States. I litigate there, I know.

But let me say this, you know — I think people are underestimating, I have a lot of respect for David, I consider him a friend and I respect his opinions. But on this one, I think the president decided to select someone who he knew, because he knows what tends to happen when justices go on the Supreme Court of the United States.

He wanted someone that he knew that he knew their philosophy and knew it well. This is not a situation — some have drawn an analogy to the situation with Justice Souter, but there the first President Bush had never met David Souter until he walked into his office that day.

Here the president has known intimately Harriet Miers for ten years; she has served in a very sensitive position, both now as White House counsel and previously, and he knows her; he knows how she thinks and he also knows her judicial philosophy.

And I think we should not underestimate for a moment that this is a very smart woman and the president is fully aware that much of his legacy is vested in the Supreme Court of United States. So this did not catch the White House by surprise.

David, in fact, called this back in July. I thought that Harriet was a likely nominee back about a month ago, and I’m not surprised at all that this was the selection.

MARGARET WARNER: Two questions for you, David Frum. First of all, when you say she isn’t good enough, what do you mean?

DAVID FRUM: I mean she has been a lawyer for more than three decades. In that time she has never found it necessary to express herself on any of the great issues of the day. Those of us who worked with her in the White House saw a person of considerable ability, in certain areas, but not someone who thought deeply or hard about legal issues. And that’s not what she was known for.

She was known for her attention to detail and to process but not for her having thought hard about these issues. I appreciate Jay’s kind words. But I think in many ways his answers reveal why this has become such an explosive issue inside the Republican Party.

Part of what isn’t good enough is for the president to say — although there are lots of conservatives of incredible distinction who have written and published, where the world can know what they think — “I have a secret, I know something and nobody else does. And I’m going to go with my personal knowledge.”

Republicans have been disappointed with that kind of knowledge often before, and although they trust and support this president, he is asking too much.

MARGARET WARNER: Jay Sekulow –

JAY SEKULOW: There’s a bit of a difference here though, and that is the president has been very clear. I remember talking when he was Gov. Bush and running for the Republican nomination the first time, that the president — and this was in a conversation I had with him — talked about the importance of the judiciary.

As president, I mean, let’s be realistic — this is a president that has appointed great judges to the courts of appeals and the district courts. He appointed John Roberts as chief justice. And I suspect that the president, who spent a lot of time with Harriet Miers, knows that she’s in that same mold, and, again, I don’t think anybody should be selling this woman short; she’s very bright, she’s served in sensitive positions and I think she is going to serve the country well.

MARGARET WARNER: But you think – well, let me ask you — do you think that someone who is going on the Supreme Court should have a demonstrated background in constitutional law, either an interest in it or some kind of work experience in it whether as an appellate lawyer or as a judge?

JAY SEKULOW: Well, look, I have argued 12 cases in the Supreme Court of the United States, been involved in 18. Harriet Miers has served as the White House counsel, she is familiar with the Constitution; she deals with it every single day.

I don’t think you have to be a sitting judge in order to be a nominee to the Supreme Court of the United States. In fact, what the president said and I think correctly so, he was talking about this when the nomination for Justice O’Connor the first time was going to be John Roberts, but he talked about going outside of the bench. And that’s not unprecedented in Supreme Court history. In fact, it’s happened more times than not, that they’ve had nominees come in outside of the bench.

And I think that’s a perspective quite frankly as someone that litigates at the Supreme Court of the United States regularly, that’s a perspective that’s lacking right now. And I think, as Justice Scalia said this morning, having a different perspective could be a good thing.

MARGARET WARNER: You’re shaking your head.

DAVID FRUM: Nobody is suggesting that have you to have been an appellate judge in order to be on the Supreme Court; that would be a silly thing to suggest; no one is suggesting that.

What they are saying is that this must be an outstanding person. Jay is very much in a minority here among in the conservative legal community. We both know a lot of people in that community, in the federal society.

I have to tell you the response in Washington among conservative jurists is nearly unanimously ranging from disappointment to dismay. But I just, to get a sense of this, I invite people to consider, think of the most famous conservative names in the law that can you think of. Have you heard from any of them the past week?

When John Roberts was nominated, they were all over TV saying this is a great man. They’re staying home. Now they also argued cases in front of the Supreme Court, so they can’t be too outspoken. They have dealings with the White House, but they are not there. And the reason they are not there is because they think this nomination is, they are really disappointed and some of them are very angry.

We’ve heard from Robert Bork, there are many others who be like to be as outspoken and can’t be.

MARGARET WARNER: Why do you think, Jay Sekulow, there is this degree of unhappiness, there is this furor within the conservative movement, including among the conservative legal community?

JAY SEKULOW: I think part of it is there was an anticipation that this was going to be through this nomination the great debate. That did not happen actually when John Roberts was nominated and later confirmed. They didn’t have this great constitutional debate.

MARGARET WARNER: You mean a debate over real conservative legal principles?

JAY SEKULOW: Yeah, and where we stand on the conservative legal issues of the day, or the legal issues of the day from a conservative perspective.

And I think people were anticipating that if a known conservative, in the sense of Mike Luttig, as an example, Sam Alito, some of the others — Priscilla Owen, were nominated, that the battle over the confirmation would have produced an education process. Look, there’s nothing wrong with the education process and I don’t think there’s anything wrong with a tough confirmation battle, and I suspect that Harriet Miers is going to have just that.

Believe me, groups on the left are already mobilizing against her because of positions and statements that she’s made years ago. But, look, at the end of the day, here’s where I think it is and I think this is a legitimate concern that David and others are bringing forward: People don’t know Harriet Miers. David does because he worked with her, but a lot of others do not.

I think when people get to see — I’ve worked with her over the last seven months now, almost a year and I will tell you, I’ve been impressed with what I’ve seen, I’ve seen her under fire, I’ve been very impressed. I think she has no doubt in my mind she has the same judicial philosophy as the president, which is the same judicial philosophy as John Roberts. She’s not a Supreme Court advocate, but, again, I don’t think that’s the disqualifier from serving on the court.

MARGARET WARNER: Mr. Sekulow, let me ask you a quick question and then I want to get back to David Frum. But have you received any private assurances about how she feels say about abortion or any other issue?

JAY SEKULOW: Yeah. I’m glad you brought that up. Absolutely not. I have been involved in this process from an outside consultant standpoint, as an outside lawyer helping the White House as much as anybody has, and I will tell you today that I have not received nor do I know of how she’s going to vote in a particular case on a particular issue, or how she views a particular cultural issue.

What I do know is exactly what the president knows and made it very clear that she does have a conservative judicial philosophy; that she understands her role is not to create social policy, that the role of the judiciary is limited.

MARGARET WARNER: And you’re saying working with her all these years, you never saw that?

DAVID FRUM: No. Conservatives didn’t want a great debate; they wanted a great justice and they know they haven’t got one and although this is going to be a much tougher confirmation battle than any of those people whom Jay named would face and the left may be organizing to oppose her, but I promise you, the right is not going to organize to support her. Nobody supports this nomination.

There are people who accept it, as the president’s due and with deference to him; nobody thinks it’s a good idea.

MARGARET WARNER: Son it’s one thing for you all to send out blogs and make statements and write columns now, before the hearings start, but are you, do you think that we’re going to see a real effort by conservatives to try to defeat this nomination from the right?

DAVID FRUM: I think we will see a lot of quiet opposition. I think what we’ll also see is if there is any trouble at that hearing, there is no one to help this nominee up, because people do not think it’s a good idea.

JAY SEKULOW: I will tell you –

MARGARET WARNER: Jay Sekulow, can you just wait – let him finish –

DAVID FRUM: Let me, I’ll be quick to let Jay have the last word if he wants. But our e-mails at conservative talk shows, at National Review Online – were we have 400,000 daily readers — are running massively against this. My own mail is five to one against. I just think that’s the way the conservative community feels.

MARGARET WARNER: And Jay Sekulow, briefly do you think this could be sunk from the right?

JAY SEKULOW: No, I don’t think. So I think what you’ll see is some are going to be a opposed as they are; others are going to wait and see when she performs, as I know she will, at the confirmation hearings, people are going to see a side of Harriet Miers they haven’t seen, it’s going to be impressive and I think come the end of November when the Supreme Court is back, she’ll be there replacing justice O’Connor.

MARGARET WARNER: Okay, Jay Sekulow, David Frum, thank you both.