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The Miers Nomination

October 3, 2005 at 12:00 AM EDT

MARGARET WARNER: Harriet Miers’ prospects of joining the court rest with the confirmation process about to unfold in the Senate Judiciary Committee. We’re joined now by two members of that committee: Democratic Senator Chuck Schumer of New York and Republican Senator John Cornyn of Texas. Welcome to you both, gentlemen.

MARGARET WARNER: Senator Schumer, you had urged the president not to appoint a hardline judicial conservative, someone that you consider to be out of the mainstream. Does Harriet Miers fill the bill on that score?

SEN. CHARLES SCHUMER: Well, on preliminary indication, yes. But it’s too early to say. Of the ten or twelve names bandied about, a large number were very hard right by their past history. Harriet Miers has no past history in terms of judicial philosophy so we don’t know. But overall, that’s a positive sign because there were only two or three people on that long list the president had that would have the chance to be moderate. She’s one of them.

MARGARET WARNER: Senator Cornyn, there are some conservatives who are very disappointed that she doesn’t have a clear judicial record and feel that the president missed an opportunity here to clearly shift the court rightward. What would you say to them to reassure conservatives that, in fact, she is in the mold of the kind of person they wanted?

SEN. JOHN CORNYN: Well, Margaret, 41 out of the 109 justices who served on the court went to that court without judicial experience. But Harriet Miers has a distinguished record as a lawyer in private practice, and in public service that I think qualifies her well for this position.

But you know, the fact is that no one’s entitled to know with precision how a judge is likely to vote on a future case. That’s the point that we tried to make with John Roberts. That’s the Ginsburg standard we talk so much about. And now I think we will have a good confirmation process, one that I hope is — reflects the dignity and civility with which the Roberts process went forward.

But I don’t know how anyone could expect to know before the case is even put to the court how a judge is likely to rule. And I think some will not be satisfied with anything less.

MARGARET WARNER: Well let me just follow up on that because one conservative group called this quote a betrayal of conservative pro-family voters. And Bill Kristol, the editor of the Weekly Standard, said essentially that President Bush appears to have been intimidated at a time of political weakness from naming a more clear-cut conservative. His exact words were, “It is very hard to avoid the conclusion that President Bush flinched from a fight on constitutional philosophy.” What do you say to that?

SEN. JOHN CORNYN: Well, I know President Bush and I know he is not easily intimidated. And I know he wasn’t in this instance. He has nominated a highly qualified woman who has been a pioneer in her profession and someone I believe who will serve and distinguish herself on the Supreme Court.

But you know those who wanted the president to pick a fight, I think were looking for — at the wrong person. I mean the president wasn’t going to pick a fight just for the sake of picking a fight. She does advocate a judicial philosophy that says judges shouldn’t be primarily policy makers from the bench but rather strictly interpret the law and I think she will do that when she’s confirmed.

MARGARET WARNER: Senator Schumer — yeah, go ahead.

SEN. CHARLES SCHUMER: I think the — yeah I think the president was between a rock and a hard place because his supporters on the hard right want somebody who, unlike what John Cornyn says, would be overtly agreeing with them.

Yet the president knew if he chose someone like that, most of America wouldn’t want it because the hard right philosophy is not where mainstream America is at. And therefore, he had to for the second time choose what you might call a stealth nominee, a nominee whose views we really don’t know.

Now I believe it’s our obligation to find out their judicial philosophy, ideological viewpoints. And we’ll try to do that at the hearing. It’s even more important with Harriet Miers than with John Roberts because she has even less of a record than John Roberts, and he didn’t have much of a record.

But the fact remains that the hard right wanted the president to pick someone who already had positions. Most of the names on that list would meet their bill. He chose one not. And I think that’s a good first step.

MARGARET WARNER: And let me follow up with you, your Democratic leader in the Senate, Harry Reid was quoted today saying I like Harriet Miers and there were reports that he even suggested her in meetings he had — consultations he had at the White House.

Does that undercut the prospect of Democrats coming out in opposition to this nominee if, in fact, that’s where you end up?

SEN. CHARLES SCHUMER: Well, let me just say, I don’t think that’s what Harry — he said he liked her. But he also said he liked John Roberts and ended up voting against John Roberts. And I’ve spoken to Leader Reid five or six times today. And clearly what he was showing, what he was betokening was our good feelings that the president didn’t choose someone who would automatically would be an ideologue, who automatically, who we had opposed in the past, a Priscilla Owens or a Janice Rogers Brown.

But no one has decided how they’re going to vote. And I think from Leader Reid on down to the rank and file almost every Democrat is going to do what we did with John Roberts, wait for the hearings, wait for information to come out and then make our decision. But the point is that the president did not throw down the gauntlet and say here’s a fight. And I agree with John Cornyn that was wise of him to do.

MARGARET WARNER: And let me ask you both briefly beginning with you Senator Cornyn, opponents and people who were disappointed on both sides have also raised the charge of cronyism, the fact she had been his personal lawyer, she has been so closely involved with him throughout his political career, at least certainly here in Washington and in Texas. Is that of any concern to you in terms of her judicial independence, if she were to go to the court?

SEN. JOHN CORNYN: Well, the president is not required to pick a political enemy or someone who disagrees with him on judicial philosophy. In fact, the president has a lot of confidence in Harriet Miers as a human being and as a lawyer and has given her a tremendous trust to serve as his White House counsel.

I don’t see how that is anything other than admirable and rewarding good performance as a lawyer. So I’m not too worried about those kind of charges. I just don’t think they’ll withstand scrutiny.

MARGARET WARNER: Senator Schumer, do they concern you — does that issue had concern you?

SEN. CHARLES SCHUMER: Well, I think what most concerns me, and it has all along with just about every nominee, Supreme Court and others, is the person’s judicial philosophy and ideological viewpoint first, and their qualifications second. And we don’t know enough about Harriet Miers on the first. And on the second, obviously we’re going to want to look carefully at her record. The fact that she knows the president well is clearly not a disqualifier. I’m sure you could look back at the history, I haven’t yet, of other Supreme Court nominees and some of them knew the president well and some of them didn’t. That to me is a neutral, is a neutral quality.

MARGARET WARNER: Okay, finally, very briefly Senator Schumer, will Democrats be more aggressive, even more aggressive in trying to get documents from her time in the White House? In other words will you be demanding more than you did for John Roberts?

SEN. CHARLES SCHUMER: Well, looking at the big picture, Margaret, we know so little about Harriet Miers, and I think the American public overwhelmingly agrees with us, even a large percentage of Republicans, that the person’s judicial philosophy, ideological viewpoints broadly scoped should be known before they go on the bench because this is the only time that we can do that. And so documentation will be important.

But overall, whether it’s documentation, answering questions, past history, we can’t just vote on a whim and a prayer. We have to really get some idea of who Harriet Miers is, and what kind of judge she will be.

MARGARET WARNER: All right. Senator Chuck Schumer and Senator John Cornyn, thank you both.

SEN. JOHN CORNYN: Thank you.