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updated 10/14/2005 6:08:00 PM ET 2005-10-14T22:08:00
TRANSCRIPT

A conservative uproar erupted over President George Bush's recent appointee to the Supreme Court.  Bush nominated Harriet Miers to replace Justice Sandra Day O'Connor.  But several key Republican senators say she not the best candidate.

MSNBC-TV's Tucker Carlson talks to former judge and Supreme Court nominee Robert Bork about the Harriet Miers' nomination.  He says it's, "a disaster on every level" because she has "no experience with constitutional law whatever".  The nomination is a "slap in the face" to conservatives. 

TUCKER CARLSON, MSNBC HOST: Are you impressed by the president’s choice of Harriet Miers?

JUDGE ROBERT BORK, FORMER SUPREME COURT NOMINEE: Not a bit.  I think it’s a disaster on every level.

CARLSON: Why?  Explain the levels on which it’s a disaster.

BORK: Well, the first one is, that this is a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever.  Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already.  So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by.  I don’t expect that she can be, as the president says, a great justice.

But the other level is more worrisome, in  a way:  it’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years.  There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution.  And all of those people have been overlooked.  And I think  one of the messages here is, don’t write, don’t say anything controversial before you’re nominated.

It’s odd that Justice  Roberts, who is now the chief justice, and who will probably be an excellent choice in many ways, also had no track record that was easy to follow.

CARLSON: Yes.

BORK: Now this woman, who has even less of a track record.

CARLSON: None at all, it seems like.  But her defenders — flaks from the White House, some of whom we’ve had on the show —

BORK: Flaks, eh?

CARLSON: Flaks, you know, professional spinners.

BORK: I know the word, I just was interested in this.  Go ahead.

CARLSON: Yeah, that’s essentially what they are some decent people, but repeating a line that’s been devised by the PR office of the White House — claim that she is a great pick because she brings diversity of experience.  Not only is she a woman, and that supposedly — for reasons I don’t quite understand — is very important, but beyond that, she has followed a different path than most Supreme Court nominees.  She hasn’t been a judge, et cetera.

Is there any truth that that’s an important qualification?

BORK: No, I think not having been a judge is all right.  A lot of justices hadn’t been judges before.  But I think this idea that it’s important to have a woman’s perspective, or something of that sort, begins to treat the Supreme Court like a legislature, in which everybody has to be—all groups have to be represented in some way.  And that’s exactly the wrong message to send.

The court is not supposed to be a legislature.  It’s been a legislature for too much of our history.

CARLSON: Right.  I was fascinated to see the president, at his news conference the other day, tell a reporter that in his many conversations with Harriet Miers, going back more than a decade, he’d never discussed the question of abortion.

When you were nominated for the Supreme Court, did you discuss with President Reagan, or anybody in his administration, your specific views on Roe v. Wade, or other issues that might come before the court?

BORK: No, I didn’t have to because I had them all in writing, which was my mistake.  The Book of Job says, “Oh, that my adversary had written a book!”  Well, if you write a book or articles as I had, you give hostages to fortune.  So they didn’t have to ask me; they knew where I was.

CARLSON: But do you think they should — I mean, as a non-lawyer, it seems to me obvious that the president would want to sit her down and say, you know, here are the important questions that might be raised on the Supreme Court — what do you think of them?  Everyone pretends, or says, that that’s somehow verboten; you’re not supposed to do that.  What do you think of it?

BORK: I think it’s ridiculous, because the president is not supposed to ask the nominee, but the senators all drill the nominee endlessly about his or her positions on various issues.  Why the senators should be allowed to do that and the president shouldn’t be, I don’t know.  But I wish the president wouldn’t ask her, how will you vote on this case, but try to ask her what materials do you consider relevant to deciding this case?

CARLSON: Yes.  A fascinating point, brought up this morning by Charles Krauthammer in his column in the Washington Post.  He said that, for four years, Meirs has been immersed in the war and peace decisions while working at the White House — questions of prisoner detention, prisoner treatment, war powers et cetera — and he makes the point, if she does reach the Supreme Court, she’ll have to recuse herself from judging the constitutionality of these decisions because she will have been party to making those decisions.  She won’t be able to weigh in on these vital questions of American life.  Is that true, do you think?

BORK: I’m not sure that it is true.  Justice Robert Jackson advised President Truman and President Roosevelt on issues like that, and then changed his mind when he got on the Supreme Court in the Steel Seizure case, which held illegal President Truman’s seizure of the steel mills during the Korean War.  So I’m not sure that having participated in the decision at the executive branch level disqualifies you from deciding the issue as a judge.

CARLSON: Right.  I don’t think it should either.

Now what do you think her chances of being confirmed are?

BORK: I think they’re probably pretty high because — and this should give the president some pause — they’re pretty high because the Democrats seem to like her.

CARLSON: Yeah.

BORK: I think that ought to give him reason to think that maybe he made a mistake.

CARLSON: What about conservatives in Washington.  I no longer live there, so I don’t have quite my finger on the pulse of it.  But what’s your sense of how Bush’s supporters feel about Harriet Miers?

BORK: Well, those who are involved in the process have some reason to stick with the White House — not because they believe what the White House has done is wise, but they can’t jump overboard with this decision.  But everybody else I’ve talked to ranges between disapproval and outrage.

CARLSON: Interesting.  Well, I hope those voicing disapproval and outrage carry the day.  I agree with you completely.

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