Responding Tuesday to a Senate Judiciary Committee questionnaire, Supreme Court nominee Harriet Miers gave few clues as to whether she had developed views on constitutional issues, but in material she provided to the committee she revealed that in 1989 she had supported a proposed constitutional amendment banning abortions except when necessary to save the life of the mother.
As a candidate for Dallas city council in 1989, Miers gave her view on the proposed constitutional amendment in response to a questionnaire sent out by the Texans United for Life group.
Her view in 1989 does not indicate how she would rule on the 1973 Roe v. Wade abortion decision, if she were to be confirmed to the Supreme Court. The Roe decision made abortion legal in all states.
In 1989, supporting a constitutional ban was largely a symbolic position to take — since it was clear that the required three-quarters of the states would not ratify such a proposed amendment.
Yet any such expression of support for banning abortion could jeopardize her confirmation, since most Senate Democrats and eight Senate Republicans are on the record as saying Roe v. Wade should not be overturned, as such a constitutional amendment would do.
One of those eight GOP senators, Susan Collins of Maine, said Tuesday afternoon she had not seen the Miers questionnaire and could not give an opinion on it.
For Collins, a key question is whether Miers "thinks that if a case was initially wrongly decided, does that effect how she treats years of precedent."
Biden minimizes questionnaire issue
Asked about the questionnaire, Sen. Joe Biden, D-Del., said "I don't find that dispositive."
He pointed out that 1987 Supreme Court nominee Robert Bork had contributed money to Planned Parenthood, but Bork also believed that there was no right to abortion that was expressed or implied in the text of the Constitution.
"I don't find that checking a box (on a questionnaire) or what you do as a legislator, how you'd vote on a particular amendment, dispositive of how you would, as a justice, vote on what the Constitution says," Biden said.
But another Judiciary Committee Democrat, Sen. Diane Feinstein of California 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."
Sen. George Allen, R-Va. agreed with Biden that the 1989 questionnaire had only limited value. "I'm not sure how probative it is," Allen said.
Asked whether her support for an anti-abortion constitutional amendment gave him some comfort, a leading conservative Republican, Sen. Sam Brownback, R-Kan., replied, "Some. It's a bit of evidence, but I want to see how she responds and what that comment means to her at this point."
Encouragement for Miers One encouraging sign for Miers Tuesday was that conservative Sen. John Thune, R-S.D., who two weeks ago voiced distress over her nomination and how it had divided the conservative movement, praised Miers after meeting with her for 40 minutes.
"This meeting gave me a comfort level on a personal level — just to get to know her and hear from her mouth answers to some of my questions," Thune told reporters.
He said he'd discussed with Miers "how to give comfort to a lot of our supporters out there who have fought long and hard to be in a position where we have a couple of vacancies on the Supreme Court. This is a very, very high stakes seat on the court."
In her written reply to the questionnaire, Miers said she saw the need for judges to restrain themselves and not set policy. People bringing cases to the Supreme Court "should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom and correctness of their preferred course," she said.
But her nomination was buffeted by a flurry of confusion after she denied that she had told Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa., in a meeting with him Monday that she thought there was a right to privacy in the Constitution and that she agreed with the Supreme Court’s 1965 Griswold v. Connecticut decision, which declared a right to privacy for married couples.
Specter is one of the eight Republicans who supports Roe. v. Wade.
The Griswold case is regarded as crucial because it served as a foundation for Roe v. Wade.
Specter’s office was forced to issue a statement Monday night saying that he thought Miers had told him in their meeting that she agreed with the Griswold decision.
But “after Sen. Specter commented on that to the news media, Ms. Miers called him to say that he misunderstood her and that she had not taken a position on Griswold or the privacy issue,” Specter’s carefully worded statement said.
Specter “accepts Ms. Miers’s statement that he misunderstood what she said.”
There was no clue in her 66-page response to the committee’s questionnaire Tuesday as to what Miers, who now serves as counsel to the president, thinks about Griswold or about a constitutional right to privacy.
Reluctant nominee, an unconvinced GOP
In her response to the questionnaire, Miers revealed that when Justice Sandra Day O’Connor announced her decision on July 1 to retire, Miers had asked not to be considered for the vacancy. But after the death of Chief Justice Rehnquist and the shift of John Roberts from the O’Connor vacancy to the Rehnquist vacancy, Miers accepted President Bush’s nomination.
On Tuesday two GOP senators made equivocal statements about Miers, indicating that the GOP caucus is not completely convinced she is the right nominee for the court.
Sen. David Vitter, R-La., said in a written statement, “Like many others, I have a lot of questions and some concerns, quite frankly, with the Harriet Miers nomination.”
He asked, “Does she have a consistent and well-grounded conservative judicial philosophy and what objective evidence is there of it from her life’s work?”
And in a briefing with reporters, Senate Majority Leader Bill Frist said the Miers nomination was “challenging” because “people are asking so many questions” and “the answers are not there yet.”
Specter had tried Monday to come to her aid. After a one hour, 45-minute meeting with Miers in his office, Specter sought to paint a positive image of the nominee. “I went over her work in the civil field, because I think that her capabilities in the civil field are directly relevant to her capacity to handle the issues on constitutional law — and she knew the cases backwards and forwards,” Specter said.
As an elected member of the Dallas City Council, “She voted in favor of bringing in minorities and women to give them a greater share of contracts,” he said.
Earlier Monday Sen. Charles Schumer, D-N.Y., the Democrats’ point man on judicial nominations, indicated to reporters that Miers had fared poorly in his her first interview with him.
Role in Valerie Plame case
Although Schumer voted against the nomination of Roberts and thus would be likely to oppose Miers as well, his comments are an important sketch of the Democrats’ line of attack on Miers.
The Democrats’ attack seems likely to take at least two lines: first, Miers is not well versed in constitutional issues, and second, that she needs to explain her role, if any, in the investigation of the disclosure of allegedly secret information about CIA employee Valerie Plame, the wife of Joseph Wilson, a critic of Bush’s Iraq policy.
Washington is abuzz with speculation that Bush’s political strategist Karl Rove is about to be indicted for disclosing Plame’s name to reporters in 2003.
For the first time Monday, Schumer linked Plame furor and the Miers nomination.
Schumer said he was greatly concerned about whether Miers was “involved in any way with the Valerie Plame case.” Since Miers has been the White House counsel since February of this year, Schumer said, “I think that’s an important issue that people ought to know about, particularly in upholding the rule of law. But she said she would not discuss that.”
Schumer told reporters he quizzed Miers for her views on landmark constitutional law cases, including the 1923 Meyer v. Nebraska ruling in which the Supreme Court held that parents had a right to have their children taught languages other than English.
Schumer said he was “surprised” that Miers “said she would not want to give an opinion on that.”
The New York Democrat said, “I’m going to give her a break” even though he portrayed her as out of her depth and unready to give her views on such a fundamental decision.
“She is not a constitutional lawyer, she never purported to be a constitutional lawyer, but she clearly needs some time to learn about these cases…. and then give the American people her views,” he said, adding later that she needed to “study” in order to get ready for her confirmation hearings which could begin as early as Nov. 7.
Schumer said he needed a second interview with Miers because “I didn’t learn answers to so many important questions. On many, she wouldn’t give answers; and on many others she deferred, saying ‘I need to sort of bone up on thus a little more…. I need to come to conclusions more.”
Schumer’s portrayal of Miers as unready for the high court pointed the way to an unusual left-right axis: if 30 Democrats were to join with two dozen Republicans, they could defeat the Miers nomination.
There were two problems with this scenario:
- No Republican senator has yet publicly opposed the Miers nomination, although some have said they’re very uneasy about it.
- Some Democratic senators think that in the end the liberal cause would be better off with a mediocre conservative on the high court — if that is what Miers is — than with a top-tier, intellectually powerful conservative, such as appeals court judge Michael McConnell, whom Bush might nominate if the Senate rejects Miers.