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Questions for Harriet Miers

October 18, 2005 at 12:00 AM EST
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GWEN IFILL: While a candidate for the Dallas City Council in 1989, Harriet Miers responded to a series of abortion-related questions from the group Texans United for Life.

Question one: If Congress passes a human life amendment to the constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas legislature?

Her answer: Yes.

Question two: If the Supreme Court returns to the states the right to restrict abortion, would you actively support legislation that would reinstate our 1973 abortion law that prohibited all abortions, except those necessary to prevent the death of the mother?

Her answer again, yes.

And question three: Will you oppose the use of public monies for abortion except where necessary to prevent the death of the mother?

Her answer: Yes.

The questionnaire was included in material provided to the Judiciary Committee by the White House in advance of Miers’ confirmation hearings.

In response, California Democrat Dianne Feinstein, the committee’s only woman said: “The answers clearly reflect that Harriet Miers is opposed to Roe v. Wade…This raises very serious concerns about her ability to fairly apply the law without bias in this regard.”

But Attorney General Alberto Gonzales said today critics are distorting Ms. Miers’ record.

ALBERTO GONZALES, Attorney General: Unsubstantiated rumors, false allegations, and distorted facts can be spread with impunity by those who don’t take the time to check the facts, as well as by those who affirmatively seek to mislead. I urge the Senate to exercise discipline in its consideration of judicial nominations.

GWEN IFILL: No dates for the Miers confirmation hearings have been set.

Now for more on the state of the Harriet Miers nomination, we are joined by two members of the Senate Judiciary Committee: South Carolina Republican Lindsey Graham and New York Democrat Chuck Schumer. Welcome, gentlemen.

GWEN IFILL: Both of you have met with Ms. Miers by now, and you have heard what she had to say about abortion, especially in these latest documents. What is your reaction to that, starting with you, Senator Graham?

SEN. LINDSEY GRAHAM: I didn’t talk to her about abortion. I talked to her about her resume and her qualifications, and I really didn’t ask her about the right to privacy issues, and in terms of the questionnaire, here’s a sort of challenge to the media: I bet you 80 percent of the Republican Conference in the Senate would have probably answered those questions just like she did.

GWEN IFILL: What about that, Senator Schumer, in reading her answers to those questions, did they raise any red flags for you?

SEN. CHARLES SCHUMER: Well, certainly they are some cause for concern, but what’s of greatest concern is that nobody knows where Harriet Miers stands on virtually anything. Less than a year before she filled out that questionnaire, she sent $1,000 to the Democratic National Committee.

When she saw me at about 1:30 yesterday, she said that she had no opinion of Griswold or Meyer, two of the seminal cases that established the right to privacy in the Constitution. She then went to Senator Specter and according to him said, yes, she does support those cases.

And then three hours later the White House put out some memorandum saying no, she doesn’t, and Senator Specter misinterpreted it. Senator Specter is a darned good lawyer; I don’t think he did misinterpret it, although I wasn’t there.

So we seem back and forth, up and down; this is serious stuff. A nominee for the Supreme Court has a lot of say over so many aspects ever every one of our lives. We have to know what her judicial philosophy is, what she thinks, and I can’t recall a nominee who comes before us with as little a record and is saying as little — and just excuse me for this one more minute — but in my interview with her she refused to comment on so many things. John Roberts was far more full in his answers in my first meeting with him.

GWEN IFILL: Senator Graham, even though you didn’t ask her about abortion, and you listened to what your colleague just had to say, does it matter that she have an answer on these privacy issues at this point?

SEN. LINDSEY GRAHAM: I think the fact that she’s pro-life doesn’t matter because no one’s ever held it against a nominee for being personally pro-choice. There’s no doubt that Ruth Bader Ginsberg was personally pro-choice. I think if you look at Harriet Miers’ answers to those questions and the way maybe even going to church, one can pretty much figure out that on the abortion issue she’s pro-life.

There’s the politics of abortion; then there’s the job of the judge. The question is, would she overturn Roe v. Wade based on a personal agenda, or would she look at the facts, understand as a standing precedent of the court, and have an analytical view of whether it should stand or fall? That’s the question, and I believe the way she’s lived her legal life, she would not take a personal agenda and replace a standard of how do you overturn precedent. I feel comfortable with that idea that she would not take a personal agenda.

GWEN IFILL: All right — Senator Schumer.

SEN. CHARLES SCHUMER: In my interview, I had no reason to assume that one way or the other she said so little. She didn’t even say, “I won’t let my personal views interfere.” But Lindsey is right in this, I completely agree, it’s what her judicial philosophy is. But when I asked her, when she would overturn cases, does she consider Roe v. Wade settled law — John Roberts had said it’s a little more than settled law — you couldn’t get an answer out of her. Now that may be as she sort of indicated to me she’s sort of new, she’s not a constitutional lawyer, and I don’t think that should be a prerequisite to be a Supreme Court Justice, that she needs to sort of study these cases and bone up on them.

But I’ll tell you this, if her answers are as limited as they were in my interview with her, when it comes to the public hearings, I don’t see how anyone can vote yes or no for her because no one is going to know much about what she’s about.

GWEN IFILL: Senator Graham, as you know many of the objections which have been raised so far about Ms. Miers have come from members of your own party.

SEN. LINDSEY GRAHAM: Right.

GWEN IFILL: Let me ask you about that, but also another issue that she raised, a distinction she drew in her answers to questions on the questionnaire, and that is about flag burning when she was a member of the Dallas City Council she said she voted against flag burning but that a judicial decision might be different. Does that reassure you? Does that raise questions for you? And do you think that will speak to the people in your caucus who have problems with her?

SEN. LINDSEY GRAHAM: Well, that’s acknowledging there is a difference between politics and judging, as Judge Roberts said. What happened in the conservative world is people were disappointed that the president did not pick someone from a blessed or sanctified list. There’s an effort by the left and right to get the president and Senate to bend to their will on judges.

The politics of judging is getting destructive for the court and for the country at large. Conservatives were upset that he didn’t pick someone they liked.

Well, the question is: Did he pick someone that he knew to be qualified and will she over time pass the test of the qualifications? Ten of the last 34 justices were never sitting judges. You can be a good job without ever having been one before in terms of a Supreme Court Justice.

The criticism from the right was over the top. It was I think premature. It’s prejudging a lady who’s lived a good life in the law, and that’s why I’ve been pushing back. I think it’s unfair to ask her to give up her day in court before the date has ever even been set.

GWEN IFILL: So Senator Graham when we hear the attorney general, Alberto Gonzales, today talk about baseless claims and innuendo and distorted facts spread with impunity, he’s talking about Republicans?

SEN. LINDSEY GRAHAM: Well, I don’t know what he’s talking about, but some of it has happened on our side — bottom line –

SEN. CHARLES SCHUMER: It happened to him.

SEN. LINDSEY GRAHAM: Yeah, it did. And I’m trying to stand up consistently. John Roberts was the model to how I think you answer what’s in bounds and what’s not. Senator Schumer may ask questions, and he may not get an answer, and he’ll decide whether or not that’s important in terms of how he votes.

SEN. LINDSEY GRAHAM: But he’s right about this: because Harriet Miers hasn’t been a judge, I think it’s important that she share her philosophy with us, not how she’ll rule, but the big legal concepts of our day, put it out on the record, say personally I’m pro-life but I won’t let it dictate how I decide a case; I’m a committed Christian but I’ll give people of different faiths, people without faith a fair day in court because I love the law and understand being a judge is bigger than my personal beliefs about life. We’ll see what happens.

GWEN IFILL: Senator Schumer.

SEN. CHARLES SCHUMER: Let me give one example, Gwen.

GWEN IFILL: Okay.

SEN. CHARLES SCHUMER: When I asked John Roberts did he believe the Constitution had a right to privacy, he said, “Yes, I did, and here are some cases.” He would take it up to a certain point, but you knew where he felt, and that’s a reasonable–

SEN. LINDSEY GRAHAM: Absolutely.

SEN. CHARLES SCHUMER: Judge — Ms. Miers, when she came in, she said she wouldn’t even discuss whether she supported Griswold, which is a fundamental privacy case of settled law.

GWEN IFILL: Well, let me –

SEN. CHARLES SCHUMER: And as I said with Senator Specter, he said she did indicate she believed in a right to privacy, and then the White House put out something saying no she didn’t; that was overstating it.

GWEN IFILL: Well, let me ask you something else –

SEN. CHARLES SCHUMER: This is an easy question to answer yes or no, whether you agree or disagree with how the person answers it.

GWEN IFILL: Well, let me ask you something I asked Senator Schumer because she also — in the section of the questionnaire when asked about judicial activism, a pretty open-ended question, she could have gone in a lot of directions, she talked about how the court should pay attention to precedent, starre decisis is a term that came up in the John Roberts hearing, and, in fact, her answer was not so different from what John Roberts said. So if her answer is not so different, why isn’t it acceptable?

SEN. CHARLES SCHUMER: Well, that’s one answer. I asked her about that question in our meeting – it only asked an hour and I only hope to have another — and she sort of gave the answer John Roberts did, a little different, but then when I asked her to elaborate on it — what would it mean in this situation or that situation — you sort of didn’t get much of an answer.

Again, I don’t think she has to answer those questions two weeks after being nominated in a private meeting with a senator, Democrat or Republican. I think she does have to answer that question by the time the hearings roll around. And then, let the chips fall where they may.

GWEN IFILL: Senator Graham, I want to ask you about another section of this, which is the question of qualification. In her questionnaire today, she said that she identified only eight cases that she tried which actually went to verdict that weren’t settled, and she said only three cases in which she represented which went to the Supreme Court and the Supreme Court didn’t accept any of them. You’re a lawyer, Senator Schumer is a lawyer, what do you think about her experience that would prepare her for the Supreme Court? What does this questionnaire tell you about that?

SEN. LINDSEY GRAHAM: Well, I think what you need to look at is how does he compare to other people who’ve gone from practicing law to the Supreme Court? Justice Rehnquist was never a judge. He was an assistant attorney general in the Nixon administration, had been in a private law practice before that. Ten of the last 34 justices were practicing lawyers.

Her practice has been very robust in the area of civil litigation. She’s represented some of the major corporations in the country. But the bottom line is she’s got to fill in the blanks, as Chuck has said. She’s got to fill in the blanks of does her law practice and her advising the president and working with him as governor, does all this equate to being within the ballpark of qualified?

I think we need to give her a chance to make that case. We need not prejudge her, and we can’t ask her to decide cases in committee to get on the court. So I’m just asking for a little bit of patience, and I do believe, given what I know, she’s going to make a very fine nominee.

GWEN IFILL: There was one paragraph in response to these questions today about Harriet Miers’ White House experience, Senator Schumer. Did you see that? And what did you make of it?

SEN. CHARLES SCHUMER: Yes, I was extremely disappointed in that. In the questionnaire — which was a bipartisan questionnaire put together by the 18 members of the committee, so it clearly didn’t have a slant overall — one of the questions was to talk about her activities in the White House. Now, I know that the president believes that certain things are privileged, and let’s lay that argument aside and accept it for a minute. There are still many other things she did in the White House that aren’t privileged. Any time she talked to an outside group, that’s not privilege by definition.

And she gave virtually no answers about her five years in the White House. Now, that experience is the most dispositive, more than being, you know, a civil corporate litigator on what kind of judge she would be. She has to be more forthcoming than that. And, frankly, I found the questionnaire as a whole disappointing in terms of not answering questions, in terms of not being clear. I don’t know if the vagueness was accurate or not. But a number of us hoped to go back to her and say, “look, these answers were not adequate, could you fill them in a little more.” We’re not out to play gotcha. We’re not out to say, ah-hah! You didn’t answer the questions, you’re out. But we certainly need answers to these questions.

GWEN IFILL: Senator Graham, do those questions have to be answered not necessarily in the way that Senator Schumer’s suggesting but in any way in order to mollify those in your party who are so concerned about her nomination?

SEN. LINDSEY GRAHAM: I’m not really worried about the criticism coming from political pundits. I’ve been home for a week in South Carolina; no one came up to me and wanted her to withdraw. Everybody I talked to in the conservative world in South Carolina has a lot of faith in the president and believes that she deserves her chance to make her case.

I’ve been in our Senate caucus today with Republicans, not one senator was affected by this. So this is a lot of beltway buzz that’s not going to win the day. But at the end of the day, I do believe it’s important that she share with us the job she had in the White House, any writings that are not clearly attorney-client privilege should come before the committee. I want to know what she thinks about detention and interrogation policy at Guantanamo Bay.

GWEN IFILL: Have you communicated that to the White House?

SEN. LINDSEY GRAHAM: I’ve communicated that to her. And there’s a fine line here. Nobody should want the general counsel to the president to be deterred from giving good legal and political advice by having it revealed in a confirmation hearing.

But there are plenty of opportunities I think where she has expressed herself, privately and publicly, that would give us a window into how she believes the executive branch relates to the Congress. And that’s important. She’s had a wonderful job in terms of understanding how our Constitution works. She’s been in a unique position to understand how it works by representing the executive branch. She should share those experiences with us as much as possible.

GWEN IFILL: Senator Lindsey Graham and Senator Chuck Schumer, thank you both very much.