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2005-10-04

Ralph Nader Debates Fmr. Boston Univ. Law School Dean on Miers Nomination to Supreme Court

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President Bush reached into his inner circle and nominated Harriet Miers–his White House counsel and former personal attorney–the Supreme Court on Monday. We host a debate with former presidential candidate Ralph Nader and Ronald Cass of the Committee for Justice. [includes rush transcript]

President Bush reached into his inner circle and nominated Harriet Miers–his White House counsel and former personal attorney–to the Supreme Court on Monday.

  • President Bush, October 3, 2005.

In nominating Miers, Bush turned to a lawyer with no judicial experience or constitutional background to replace retiring justice Sandra Day O’Conner and help shape the nation’s judiciary. This marks the first time since 1971 that a President nominated someone without judicial experience to serve on the US Supreme Court. If confirmed Miers will become the third woman to ever serve on the court. She spoke after Bush announced her nomination.

  • Harriet Miers, supreme court nominee, October 3, 2005.

Miers is 60 years old. After earning her undergraduate and law degrees from Southern Methodist University, she worked as a corporate litigator in Dallas at the firm now known as Locke Liddell & Sapp. She would rise to become the first woman to head a major Dallas law firm and was named one of the 100 most powerful lawyers in the country. She specialized in commercial litigation, representing big-name clients such as Microsoft and Walt Disney Corporation.

Miers later rose to become the first woman to serve as president of the Texas State Bar and the Dallas Bar Association. She met George W Bush in the 1980s and she was counsel for his 1994 campaign for governor. She continued on as Bush’s personal attorney until he appointed her to head the Texas Lottery Commission. She helped recruit conservative lawyers for Bush during the Florida recount in 2000 and was reportedly assigned during the campaign to conduct a review of his National Guard service. She followed Bush to the White House where she served as White House deputy chief of staff as well as staff secretary, a job in which she reviewed virtually every document that went before the president. In 2004, she was tapped to become White House counsel.

Her relationship is so close to President Bush, that White House insiders joked to the Los Angeles Times that she was his "work wife." Bush once called her "a pit bull in size 6 shoes."

As White House counsel, Miers vetted judicial nominees, including newly installed Chief Justice John Roberts. She also advised the president on issues including the CIA leak investigation and the role of torture in the fight against terrorism.

Without a judicial record, it may be difficult for Senators to know where Miers stands on key issues facing the court. What is known is that as a City Council candidate, she opposed the repeal of a law against gay sex. In 1992, when delegates to a national American Bar Association convention adopted a position in favor of abortion rights, Miers worked as head of the Texas state bar to force a reconsideration of the issue by submitting it to a referendum by the 360,000-person membership. And as President Bush’s White House lawyer, she helped vet deeply conservative judges.

Some of the strongest criticism of her nomination to the bench has come from conservatives. Rush Limbaugh called the nomination a sign of "weakness." Weekly Standard editor Bill Kristol said he was "disappointed, depressed and demoralized" by the selection. Meanwhile Democrat Harry Reid, the Senate Minority Leader, appeared side-by-side with Miers soon after her nomination and praised her qualifications.

  • Sen. Harry Reid (D–NV), Senate minority leader, October 3, 2005.

Last week during a conference call with bloggers, Reid–anti-choice Democrat–reportedly announced that he had asked President Bush to consider Miers for the job. Miers is a former Democrat who once contributed campaign donations to Al Gore and Lloyd Bentson. Since 1988 all of her contributions have gone to the Republican Party. New York Democratic Senator Chuck Schumer said he will push for documents on Miers and pressure her to answer questions about her judicial philosophy.

  • Sen. Chuck Schumer (D–NY), October 3, 2005.

But more information on Miers’ personal may not be forthcoming. As White House counsel, it was Miers who denied similar requests by Democrats to release memorandums written by John Roberts during the administration of George H.W. Bush. We host a debate on Miers’ nomination:

  • Ralph Nader, 2004 independent presidential candidate. Over the past few months he has been writing Harriet Miers a series of letters.
  • Ronald Cass, Co-Chair of Committee for Justice and former Dean of Boston University Law School.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: President Bush reached into his inner circle, nominated Harriet Miers, his White House counsel and former personal attorney, to the Supreme Court Monday.

PRESIDENT GEORGE W. BUSH: I believe that senators of both parties will find that Harriet Miers’s talent, experience and judicial philosophy make her a superb choice to safeguard the constitutional liberties and equality of all Americans. Harriet Miers will strictly interpret our Constitution and laws. She will not legislate from the bench. I ask the Senate to review her qualifications thoroughly and fairly and to vote on her nomination promptly.

AMY GOODMAN: In nominating Harriet Miers, President Bush turned to a lawyer with no judicial experience or constitutional background to replace retiring Justice Sandra Day O’Connor and help shape the nation’s judiciary. This marks the first time since 1971 a President nominated someone without judiciary experience to serve on the Supreme Court. If confirmed, Miers will become the third woman to ever serve on the court. She spoke after President Bush announced her nomination.

HARRIET MIERS: If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the court meet their obligations to strictly apply the laws and the Constitution.

AMY GOODMAN: Harriet Miers is 60 years old. After earning her undergraduate and law degrees from Southern Methodist University, she worked as a corporate litigator in Dallas at the firm known as Locke Liddell & Sapp. She would rise to become the first woman to head a major Dallas law firm and was named one of the 100 most powerful lawyers in the country. She specialized in commercial litigation, representing big name clients like Microsoft and Disney Corporation. Miers later rose to become the first woman to serve as President of the Texas State Bar and the Dallas Bar Association.

She met George W. Bush in the 1980s. She was counsel for his 1994 campaign for governor. She continued on as Bush’s personal attorney, until he appointed her to head the Texas Lottery Commission. She helped recruit conservative lawyers for Bush during the Florida recount in 2000 and was reportedly assigned during the campaign to conduct a review of his National Guard service. She followed Bush to the White House, where she served as White House Deputy Chief of Staff, as well as Staff Secretary, a job in which she reviewed virtually every document that went before the President. In 2004 she was tapped to become White House Counsel.

Her relationship is so close to President Bush that White House insiders joke to the Los Angeles Times she was his, quote, "work wife." Bush once called her, quote, "a pitbull in size six shoes." As White House Counsel, Miers vetted judicial nominees, including newly installed Chief Justice John Roberts. She also advised the President on issues including the C.I.A. leak investigation and the role of torture in the fight against terrorism.

Without a judicial record it may be difficult for senators to know where Miers stands on key issues facing the court. What is known is that a City Council candidate, as one in Dallas, she opposed the repeal of a law against gay sex. In 1992, when delegates to a National Bar Association convention adopted a position in favor of abortion rights, Miers worked as head of the Texas State Bar to force a reconsideration of the issue by submitting it to a referendum by the 360,000-person membership. And as President Bush’s White House lawyer, she helped vet deeply conservative judges.

Some of the strongest criticism of her nomination has come from conservatives. A number of them have come out against her nomination to the bench. Rush Limbaugh called the nomination a sign of, quote, "weakness." Weekly Standard editor Bill Kristol said he was, quote, "disappointed, depressed and demoralized" by the selection.

Meanwhile, Democrat Harry Reid, the Senate Minority Leader, appeared side by side with Miers soon after her nomination and praised her qualifications.

SEN. HARRY REID: Harriet Miers has served with distinction as a trial lawyer. That’s what I am. I’m a trial lawyer. So anyone with that background makes me feel good.

AMY GOODMAN: Last week during a conference call with bloggers, the anti-choice Democrat Harry Reid reportedly announced he had asked President Bush to consider Miers for the job. Miers is a former Democrat who once contributed campaign donations to Al Gore and Lloyd Bentson. Since 1988 all her contributions have gone to the Republican Party. New York Democratic Senator, Chuck Schumer, said he’ll push for documents on Miers and pressure her to answer questions about her judicial philosophy.

SEN. CHUCK SCHUMER: As I said, we know less about Harriet Miers than we knew about John Roberts. And there are two ways to find out what her judicial philosophy is: her past record, and, you know, her record as Lottery Commissioner isn’t going to tell us very much. So it would be the time she served in the White House, although it was rather small. But if there ever was a time when the hearings are going to make a huge difference, it’s now.

AMY GOODMAN: We’re joined now on the telephone by former Independent presidential candidate, Ralph Nader. Over the last few months he has been writing Harriet Miers a series of letters. Welcome to Democracy Now!, Ralph Nader.

RALPH NADER: Thank you, Amy.

AMY GOODMAN: What have you been writing to Harriet Miers?

RALPH NADER: Well, we’re trying to find out whether Karl Rove, during the 2004 election, obeyed federal law and properly allocated the time he spent in the White House on political activity, the resources he spent in the White House on political activity from his taxpayer funded role as special assistant to the President, performing duties that are well defined. And we can’t get an answer. We wrote her — Harriet Miers, that is — in March, asking for an allocation to be made public, if there was an allocation, and there was no answer. We wrote her on the 18th of July, and there was no answer. And today, I’m writing President Bush, asking that that allocation be made public and if there is no allocation, what is his explanation under federal law?

The performance by Harriet Miers on this matter is not trivial. Karl Rove was the architect of President Bush’s re-election campaign. Those were the words that President Bush used on the celebration after the election last November. And here we have the counsel to the President, Harriet Miers, a nominee to the Supreme Court of the United States, refusing to answer a simple letter that basically says, "Did Karl Rove obey federal law 5-USC-7321 and have an accounting, separating his duties in the White House, in terms of time and resources? And if so, make it public." No answer.

AMY GOODMAN: We’re talking to Ralph Nader, wrote Harriet Miers a series of letters, got no response, asking should Karl Rove resign? Did you raise the issue of the exposing of Valerie Plame?

RALPH NADER: No, I just focused completely on the federal law that requires certain officials in the federal government, cabinet secretaries, as well as White House special assistants, to separate his or her time in terms of times and resources spent on elections or political activity and the time spent in the public service.

You know, Amy, in the Congress, if a staff member of a senator or representative engages in political activity during election time, that person can be prosecuted. So that’s why the staff members of Congress people take a leave of absence, they drop their public salary, and they go out and push for the re-election of their senator or representative. But unfortunately, a number of years ago the Democrats and the Republicans got together in the Congress and said, ’We’re going to make an exception from that law for the executive branch, for cabinet officials and for top White House officials.’ But that exemption required that accounting be established, clearly delineating the time, for example, Karl Rove spent in the White House making calls to re-elect Bush or spending materials and resources to re-elect Bush and the time he spent on government business as special assistant to the President. He didn’t do that. And so, Harriet Miers is, in effect, by not answering those letters, is covering up for Karl Rove.

And if the Democrats don’t raise that issue in the confirmation hearings, they will continue their record, as a whole, with some luminous exceptions, as a whole, of being a party that is spineless, gutless, hapless, clueless and now leaderless. Imagine, within minutes of the nomination yesterday, the leader of the Democrats in the Senate, Senator Harry Reid from Nevada, in effect put his imprimatur of approval on Harriet Miers, and then he met with her and said even kinder things. Now, that means that Republicans have instantly split the Democrats and are on their way to another confirmation.

AMY GOODMAN: Well, in fact, last week during a conference call with bloggers, Reid reportedly announced he had asked President Bush to consider Harriet Miers for the job.

RALPH NADER: Yes, that further undermines the Democrats’ position.

AMY GOODMAN: Do you think it has to do with the Senate Minority Leader, the leading Democrat in the Senate, Harry Reid, being anti-choice?

RALPH NADER: That could be a factor. But I think a larger factor is the game that the Republicans are playing with the Democrats. They threatened to appoint a Genghis Khan-type person. The Democrats are very relieved that a Genghis Khan-type person is not nominated to Supreme Court. The whole de-escalation of expectation levels keeps going down, and that’s what you got yesterday. You’ve got statements of caution from Senator Kennedy, saying, ’Let’s wait and see,’ and you have statements like that of Senator Reid. I mean, they are really in disarray.

On the Roberts nomination, for example, Senator Reid came out against Judge Roberts, and Senator Leahy, the ranking member of the Senate Judiciary Committee, said, "Senator Reid doesn’t speak for the Democratic caucus; he just speaks for himself." And then Senator Leahy turns around and votes for Judge Roberts. But when Senator Reid said he was against Judge Roberts, he said it at the same time that half of the Democrats are going to vote for Judge Roberts. I mean, what kind of leadership is that? When you undermine your position that you have just taken against the Supreme Court nominee, by saying, 'Well, half of my Democrats are going to be voting for Judge Roberts.'

So, the Democrats are really in total disarray, not just on this subject, but on the war in Iraq, on reviving national health insurance, universal health insurance, on getting a living wage, on standing up for the civil justice system of compensating wrongful injury, of going after the bloated military budget and going after the huge allocation of tax dollars for corporate subsidies, handouts and giveaways that take money away from the necessities of the American people and things like what happened that made the Southern states so vulnerable during the hurricane, the whole lack of adequate modern public works establishment.

AMY GOODMAN: Ralph Nader, we’re going to break, and when we come back we’ll also be joined by Ronald Cass, who is co-chair of the Committee for Justice.

[break]

AMY GOODMAN: In a few minutes we’ll be speaking with retired General William Odom. He says the U.S. should cut and run from Iraq. But right now, we’re continuing to talk about President Bush’s selection of Harriet Miers as Supreme Court Justice. We are joined by former Independent presidential candidate, Ralph Nader, and Ronald Cass, Co-Chair of the Committee for Justice, former Dean of Boston University Law School. We welcome you to Democracy Now! from Washington. Your response to President Bush’s nomination?

RONALD CASS: Well, President Bush has said consistently that he would be putting people in the court who shared his sense that judges should be guided by the text and history of the Constitution, they should be reading and applying the laws and not saying what they think personally are good values. Harriet Miers has been deeply engaged with the President in selecting judges who fit that mold. She has given us a series of judges who are highly qualified, who do respect the law and the Constitution. And I expect that she will fit that mold herself.

The emphasis on judicial experience seems to me very misplaced. We’ve had quite a few judges in the history of the Supreme Court who had no judicial experience previously. You mentioned William Rehnquist. The list also includes Earl Warren, Felix Frankfurter, Louis Brandeis, Harlan Fiske Stone, John Marshall, and a number of the greats of the Court. So I think he has made a choice of somebody he knows and trusts and values who by all accounts should be a very sound and solid Justice.

AMY GOODMAN: I wanted to ask what you think of other conservatives’ comments. David Gergen said he was startled. He said Harriet Miers is a well-educated Methodist, but when you look at her credentials, the thinnest of any nominee we have seen in decades, if not a half-century. He said she’s never worked in Constitutional law, doesn’t know anything about it, a stealth candidate. He said if you look at her record in the White House she came in as Staff Secretary. Her highest position in Texas was head of the Lottery Commission, not ordinarily springboards for the Supreme Court. Pat Buchanan said Miers’s qualifications for court are nonexistent, and, of course, William Kristol said he’s disappointed, depressed and demoralized, said her selection will be judged as a combination of cronyism and capitulation on the part of the President. Your response, Ronald Cass.

RONALD CASS: First of all, a lot of judges who have a track record as judges were obviously being considered for this, and a lot of us who know them and admire them thought a great many of them would be very good Supreme Court Justices. That doesn’t mean that Harriet Miers is not also going to be a very good Supreme Court Justice. She was President of the Bar in Texas. She was the head of one of the leading law firms there. She has been active in the American Bar Association. She’s not only served as a corporate attorney, which is something that will help broaden the spectrum of views on the Supreme Court, but also she has seen for a number of years everything going across the President’s desk in the White House, which certainly gives her a perspective on events in government that very few people share. This is somebody who has a wealth of experience. It is not the typical experience for the Court. But we’ve had over history quite a few people come from backgrounds that don’t replicate those of the current Justices, and they’ve served with distinction and made a real impact on the Court and on the law.

AMY GOODMAN: Quick question, and that is, her stance on abortion, getting the American Bar Association, not to take a stand against abortion, but at least not to take one for abortion, to be neutral on the issue. Do you take heart from that?

RONALD CASS: Many people in the American Bar Association, both those who are pro-life and those who are pro-choice, thought the Bar Association made a dreadful mistake in getting involved in the issue and getting involved, not on any technical legal ground, but on the ground of sharing the value that was pro-abortion. That’s not the sort of position a Bar Association should take. The Bar Association has no special standing to say whether Americans should or should not promote more or less abortions. The Bar Association has competence on legal, technical questions. This wasn’t one of them. And she was clearly right that this wasn’t something the Bar Association should be adopting a resolution on.

AMY GOODMAN: Some are writing about a comparison between the head of FEMA, Michael Brown, who President Bush called Brownie and said, ’You’re doing a heck of a job’, and Harriet Miers, saying that she just has a lack of credentials, but is clearly close to the President. Your response?

RONALD CASS: Clearly, Harriet Miers is close to the President. He’s worked with her for a long time. He knows her well. We have seen he has consistently said he values judges on the courts who will read the text of the Constitution and will apply it and won’t make up their own views of what the Constitution should be. Obviously, Harriet Miers shares those views, shares those values, shares that sense of judicial conservatism. And the President has confidence in her.

The Constitution is designed to give the President the power to make these nominations and appointments on a heavy presumption in favor of the President’s selections. I think both in terms of the history and structure of the Constitution and the sense of what this President stands for, people should look at this and say we trust the President, he’s made a selection of somebody he knows well, he has told us what he stands for, and he has consistently promoted judges who fit that model. I expect Harriet Miers will, as well.

AMY GOODMAN: Ralph Nader?

RALPH NADER: It’s not a matter of trust, as the former dean of Boston University Law School should know. It’s a matter of public examination and evaluation, not just by the public at large, but by the Constitutionally-invested U.S. Senate providing advice and consent. And what President Bush has done is appoint as Associate Justice to the Supreme Court of the United States a confidante whose record is going to be confidential, because all the memos she wrote to him, her advice to him as governor of Texas, her advice to Bush as President, all of the paperwork is all going to be confidential.

So here you have this spectacle, where a nation full of jurists and law professors and lawyers who could provide the talent and experience and a record for open examination being shoved aside, and the President is appointing a confidante whose record is confidential. Now, if the Senate does not rise to that challenge, that itself sets a very, very dubious precedent. It is not a matter of trusting the President. It’s a matter of revealing to millions of Americans in open hearings what her positions are, what she advised, what she stood for, what she stood against on the momentous issues before the President of the United States, and you can be sure that the White House is going to say that’s confidential. In fact, she was part of the President’s coterie which insisted that the memos written by Judge Roberts when he was in the Solicitor General’s office in the Justice Department were confidential and could not be given to the Senate.

AMY GOODMAN: Well, as the White House counsel, she rejected that request. Ronald Cass, your response?

RONALD CASS: I think that when Mr. Nader talks about setting a precedent by not fully examining her positions, he is getting things just totally backwards. The precedent for 200 years has been that we don’t know all of the personal positions of judges who go to the Supreme Court, and we don’t need to. We shouldn’t. We don’t want to be trying to predict what their personal positions are, because they’re supposed to be guided by the law. They’re not supposed to be guided by their personal views. For 175 years, nobody came before the Senate Judiciary Committee to answer questions, because it was considered improper. When Judge Roberts sat before the committee and said, ’I’m not going to tell you how I would decide certain things. I’m not going to tell you my own values. I’m going to tell you how I look at the law,’ he was doing exactly the right thing. That’s what judges do. They look at the law. They decide cases. We don’t want searching inquiries into their personal values, and we don’t want to try to pin down their positions in advance of hearing the case, seeing the arguments, having a specific context for making a decision.

AMY GOODMAN: Ralph Nader.

RALPH NADER: Well, it’s impossible to separate a person’s judgment and values from their judicial work. I mean, that’s just a legal fiction. And Judge Roberts should have known that. That was one of the more foolish things he said. That’s why there is such widely differing positions between people like Justice Stevens and Justice Breyer on one hand, say, and positions of Justice Scalia and Justice Thomas on the other. It is not because they have a different linguistic reading of cases before them. It’s because they come with a philosophy, they come with a value system that moves right into their deliberative processes.

And we have a right to know what Judge — or what Ms. Miers has been thinking all of these years. Where does she stand on due process, for example? Where does she stand on separation of powers? Where does she stand on the Santa Clara case in the 19th century that declared a corporation to be a person for purposes of the 14th Amendment? So, I mean, why have hearings? Why have advice and consent if it is nothing more than sort of a rubber stamp automated process shorn of all values and philosophy?

AMY GOODMAN: Ronald Cass, Co-Chair of the Committee for Justice.

RONALD CASS: The process has traditionally been one that hasn’t looked at personal values. It hasn’t enquired into them. It has asked about the competence of the person. What the Constitutional design is, is that the President nominates and appoints. The Senate is a check against appointment of incompetent people, people who don’t have the temperament to sit on the Court. They don’t have any capacity to tell what people are going to do on the Court. They don’t have a capacity to predict how somebody is going to decide important cases. And, in fact, what does matter isn’t a personal value. It’s whether somebody takes the role of judge seriously, is somebody who looks at the legal authorities and is guided by them, is relatively modest in their view of what judges do or relatively expansive. And the President has said he wants people who are modest about the role of judges. Harriet Miers has helped him pick judges who fit that mold. It’s the mold I expect she’ll fit, and I think it’s the right mold.

RALPH NADER: Well, you know, Mr. Cass, those assertions of yours are properly subjected to examination by the Senate. You know, you don’t take it as an article of faith, you take it as a proposition or an assertion to be examined in open, public hearings before millions of Americans. And, secondly, what about the way she did her job. It has nothing to do, say, with what cases that she is going to decide; for example, not responding to public inquiries about Karl Rove, not separating — not providing an accounting or not making an accounting public, separating his political activity and expenditures in the White House from his duties as special assistant. I mean, that’s fair game, isn’t it, to see what kind of job she did as counsel to the President? Is she covering up for Karl Rove and many other matters that she was involved in as an adviser to the President?

AMY GOODMAN: Ronald Cass, you have the last word on that one.

RONALD CASS: The Senate can clearly ask her what her philosophy is. It can ask her how she views the job of judging. It can look at what she has done over time. I’m not going to see what her correspondence looks like with Mr. Nader. I’m sure she has a lot of things to do. But by all accounts she has had a very successful career in a number of different arenas and comes to the job with a wealth of experience for it.

AMY GOODMAN: Well, we will certainly continue to follow President Bush’s nomination of Harriet Miers to the Supreme Court. This is Democracy Now! Our guests have been Ronald Cass, Co-Chair of Committee for Justice and former Dean of Boston University Law School, as well as Ralph Nader, former Independent presidential candidate.

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