Miers Withdraws Nomination
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MARGARET WARNER: The Senate Judiciary Committee was getting ready to tackle confirmation hearings for Miers beginning Nov. 7.
Joining us now are two members of that committee: Republican Sam Brownback of Kansas, and Democrat Dick Durbin of Illinois. Welcome, gentlemen.
Sam Brownback, Senator Brownback, was this the right call on the part Harriet Miers and the president?
SEN. SAM BROWNBACK: I think it was. It’s a difficult call. It’s a difficult call for the president. It’s a difficult call for Ms. Miers. They put forward Ms. Miers in the process, she went through aggressively to date, doing a lot of meetings on the Hill, making a lot of visits, working and preparing.
But at the end of the day, we got at this document clash of what we were seeking of information to be able to understand where she was on constitutional issues because there was no other record really for us to go on. And the administration was saying, well, those are executive and privileged, and a number of us were saying, well, we can’t make a decision without those on this nominee where there’s no other paper trail on constitutional issues, and we just got into a logjam.
MARGARET WARNER: Senator Durbin, do you think this was over the documents or something more as even Senator Cornyn suggested today?
SEN. DICK DURBIN: I think it was about more than documents. I think it was about Dobson, I think it was about the right wing of the Republican Party. I think it was about the fact they weren’t certain that this nominee would vote according to their political agenda. This is a critical seat. Sandra Day O’Connor, who is stepping down from the Supreme Court, has been involved in 193 5-4 decisions, and three-fourths of those, she was the deciding vote.
They realize, as we do, too, this is the swing vote on the Supreme Court, and from the far right wing of the Republican Party, they said from the outset she’s unacceptable. We don’t find in her background the kind of allegiance to our political agenda that would make us comfortable. Documents might have been part of proving that allegiance, but it would have alienated an awful lot of people in the center of American politics.
MARGARET WARNER: Senator Brownback, do you agree that the conservative opposition at least drove this process to this point, from legal conservatives and social comforts like yourself, and what do you think that was based on fundamentally?
SEN. SAM BROWNBACK: Well, I think it’s based primarily on the last election. President Bush ran very clearly on the issue that he wanted a court to be a court and not a legislature. And he said that he wanted to appoint justices along the lines of Justice Scalia and Thomas. John Kerry didn’t run about the courts. I guess he would keep them — go ahead and be very involved in many areas, but that’s not acceptable to the American public.
The public wants these issues debated and open and known and not handled by the justices and people that are on the court for as far as these key issues that should be in the legislative process.
MARGARET WARNER: I guess what I’m really asking here, though, is what were you all — I mean, you were a member of the committee. Was it just a question of pressure from the conservative base, or did you all, as you met with her, also have a sense of unease about where she where she was, either philosophically or her command of constitutional issues?
SEN. SAM BROWNBACK: Well, the hill for this nominee generally kept growing, rather than getting smaller. And it was also the case that I think a lot of people looked at her and said, you know, when President Clinton was in office, he nominated Ruth Bader Ginsburg. She had been general counsel for the ACLU, here’s an openly known liberal vote that goes on the court.
Why shouldn’t there be somebody that comes forward that we know the position, that this is a conservative position? This is what the president ran on. It’s what the country voted for. And we should move on forward with that discussion and that debate in the Senate and with the American public.
MARGARET WARNER: Now did you all let the White House know this? Hot Line is reporting today that, in fact, Majority Leader Frist spoke to Andy Card, the White House chief of staff last night, and really told him this was in trouble.
SEN. SAM BROWNBACK: I don’t know if that conversation took place or not.
MARGARET WARNER: All right. Senator Durbin, now how are the Democrats feeling about this decision? Are you disappointed because of fear of what might come next? Or do you think it was the right call, given her lack of judicial experience?
SEN. DICK DURBIN: Well, in the privacy of Democratic meetings there were four words that were given over and over again as a reason to support Harriet Miers, and those four words were: It could be worse.
And now I don’t know what will happen next. It’s really up to President Bush. I mean, he has to demonstrate, I think, real leadership here. He has to make a choice. He can choose someone from the far right wing of his Republican Party and perhaps unify his party in the process, or he can choose a candidate who is more moderate and centrist, one who represents a consensus view of American values, and unify our country. I hope he chooses the latter.
MARGARET WARNER: So if the four words most commonly mentioned in Democratic meetings were, “It could be worse,” are you saying that really Democrats were prepared to vote for her, and that it really was Republican opposition that torpedoed this?
SEN. DICK DURBIN: I can tell you that it was Republican opposition that really caused her withdrawal. If you listen to what the Democratic senators said from top to bottom, there wasn’t a single one calling for her to withdraw her nomination.
Every one of us had said we owe her the courtesy of a hearing before the Judiciary Committee, let her explain where she stands on the issue. Where the president turns next is in his control at this moment.
MARGARET WARNER: Senator Brownback, let me ask you one other question about the opposition to her. She is an evangelical Christian, an adult convert to that – that part of the Christian faith.
The president himself said I’ve known this woman for years. I can tell you, she’s shares my judicial philosophy. Why wasn’t that enough for conservatives?
SEN. SAM BROWNBACK: Well, there’s an advice and consent process, at least for myself, and I certainly weigh and take into factor what the president is saying. But I want to see what else is there. I want to know what else — what other information exists to be able to base that opinion to give advice and consent on.
And there’s another issue here as well. In the past, a number of people have been appointed on the courts saying that they were conservative, and for the first year or two, they were, and then veering left, and getting the courts involved in legislative issues, to the frustration of the greater public in the United States who thinks these issues should be decided in the legislature, and not by the courts.
That happens when you have a lack of set judicial philosophy, and that’s why there’s always this concern when a nominees comes forward without a pretty clear known and set judicial philosophy.
MARGARET WARNER: And what, Senator Brownback, does this fiasco, if we can call it that, say now about the state of the relationship between the president and his conservative base?
SEN. SAM BROWNBACK: Well, I don’t think it says a whole lot into the future. I think it says that this is a big party, and it’s a party that’s more than one person. And it’s a party that cares a great deal about what happens on the judiciary. And that there’s a lot of people out across the country that care a lot about what this judiciary says about private property rights, about issues like life and marriage, God and the public square, and that these issues should be debated openly and not stealthfully and having that discussion in the U.S. Senate.
MARGARET WARNER: So, Senator Durbin, if we look ahead — and you already have mentioned this, to what you hope the kind of person the president picks — are you saying you — Democrats are hoping for someone that many of you could vote for, in other words, a consensus candidate, not the kind of candidate that the legal and social conservatives — at least that you believe they want?
SEN. DICK DURBIN: Well, remember, Sandra Day O’Connor is and was a conservative. Barry Goldwater, Arizona conservative, moving toward libertarianism, who showed during the course of her judicial career that she had an open mind on issues. That’s what we’re looking for.
A mainline conservative will receive approval from both sides of the aisle in my point of view. But I think we need to take care here. If the president decides that this is about bragging rights within a political squabble as opposed to constitutional rights, which is really the mission of the protection of those rights by the Supreme Court, then we’re going to have a terrible confrontation here. We don’t need that.
There are so many qualified men — and let me underline women — that the president can choose from across America who will have a centrist and moderate point of view, not to far to the left, not to far to the right who really are not going to be caught up in the vortex of the controversy that surrounded Harriet Miers.
MARGARET WARNER: And, Senator Brownback, what would be your advice to the president and the White House right now? Should he go for a kind of mainstream conservative in the view of Senator Durbin, or would you encourage him to pick a fight over someone in the mold of Antonin Scalia?
SEN. SAM BROWNBACK: Well, I would urge the president to do as he said during the campaign, that the American public elected him to do, that most of the American public agrees with, and that is to nominate somebody that would push for a court to be a court and talk about judicial restraint and that in a number of these areas, the court shouldn’t be involved in and should leave up to the legislative bodies.
And I know my colleagues on other side of the aisle will probably define this as saying that’s somebody that’s too conservative, but I hope that they’ll look at this individual, let them have a fair vote up or down, 51 votes, not a super majority 60-vote requirement, so that we can go ahead and have this consideration, have this debate and give our advice and consent.
MARGARET WARNER: Sens. Brownback and Durbin, thank you both.
SEN. SAM BROWNBACK: Thank you.
SEN. DICK DURBIN: Thank you.