MSNBC - The Abrams Report - Jay Sekulow Participates in Discussion of Nomination of Harriet Miers to High Court

MSNBC - The Abrams Report
October 3, 2005

Discussing the Nomination of Harriet Miers to the Supreme Court

HOST:  DAN ABRAMS:  Now onto the Supreme Court.  President Bush passes over a corps of known conservative jurists and nominates his own lawyer, White House counsel Harriet Miers to the U.S. Supreme Court.

The 60-year-old has never served as a judge and who has virtually no public paper trail, which is making some conservatives nervous.  Former Bush speechwriter and conservative columnist David Frum wrote today on his blog, quote, I worked with Harriet Miers shes a lovely person, intelligent, honest, capable, loyal, discreet, dedicated.

I could pile on all the praise all morning.  But nobody would describe her as one of the outstanding lawyers in the United States and there is no reason at all to believe either that she is a legal conservative or, and more importantly, that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.

Even the Democratic leaders in the Senate seemed at the least relieved.

(BEGIN VIDEO CLIP)

SEN. HARRY REID, SENATE MINORITY LEADER:  I have to say without any qualification that Im very happy that we have someone like her.

SEN. CHARLES SCHUMER (D) NY:  It could have been a lot worse.

(END VIDEO CLIP)

ABRAMS:  All right, joining us now to discuss this new nomination is Roger Pilon of the Cato Institute, and Jay Sekulow of the American Center for Law and Justice, and John Council reporter for Texas Lawyer magazine.

It is interesting to have Mr. Pilon and Mr. Sekulow, who dont always agree on issues, but often - often agree on issues, disagreeing on this one.  Jay, why do you think so many conservatives are so nervous and why are you comfortable with this nomination?

JAY SEKULOW, AMERICAN CTR. FOR LAW AND JUSTICE:  Well, Ive worked with Harriet Miers, Ive seen the kind of involvement shes had in the judicial process so far in this election.  Shes been very involved in the selection of judges.

Ive seen the kind of work shes done in that regard.  Ill also tell you this.  This is a situation where the president has known Harriet for a long time, over a decade. 

He knows how she thinks, he knows what her views are, so some of the comparison that some of my colleagues, the conservative colleagues are making comparing this to the situation with Justice Souter and from the first President Bush is not even an accurate comparison because in this particular case President Bush right now knows Harriet Miers and the first President Bush did not know David Souter - he relied on staff.

So youve got a different relationship there and it -

ABRAMS:  Jay -

SEKULOW:  Go ahead.

ABRAMS:  Is she opposed to Roe v. Wade?  As far as you know?

SEKULOW:  I dont know what her stand on abortion is.  I do know this, when the American Bar Association took the position that they were going to advocate in favor of abortion and the right that was recognized in Roe v.  Wade, she led the charge against it.

She thought that the ABA should not be doing that.  Now having said that, I havent had a conversation with her on Roe v. Wade, but she said something very important today when she was talking to the press and after the president nominated her - she said I understand my role as judge, I understand that what the words of the constitution means and how to apply them.

That to me tells a lot about a nominee.

ABRAMS:  Thats interesting - let me play that piece of sound and then I want to ask Roger Pilon about it.

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)             

ABRAMS:  Mr. Pilon, isnt that sort of code words for dont worry, Im going to be a conservative?

ROGER PILON, CATO INSTITUTE:  Yes, it is, but of course its only scratching the surface.  The devil is in the details and thats whats so troubling to so many of us.

This is a woman who in 60 years has written almost nothing.  We have been able to come up with a couple of thousand-word articles from the Texas Bar Journal on very innocuous subjects.

The role of a Supreme Court justice is one of examining the case before her, deciding the case on the law.  But the law is extraordinarily complex in case after case.

After all, its the difficult cases that make it to the Supreme Court.

ABRAMS:  Yeah.

PILON:  So - so its a very intellectual job.  There have been battles raging for years over constitutional jurisprudence.  She has been utterly absent from those battles.

ABRAMS:  Yeah and you know and I dont - and I dont get - and I dont quite get this comment from Harry Reid sort of suggesting that its a plus that she hasnt been a judge before.  Listen to this:

(BEGIN VIDEO CLIP)

REID:  Im very happy with the fact that we have someone who has been nominated by the president who is like approximately 39 other people who have served on the Court.  People who have had no judicial experience.

I think thats a plus, not a minus.

(END VIDEO CLIP)

ABRAMS:  You know, Jay, Ive heard a number of people say that.  I dont get how its a plus.  Im not saying it should be a negative, and Im not saying it should be used against her because, you know, the senator is right and the president is right in saying its happened many times before but how is it a plus?

SEKULOW:  Well I think there is a plus to it.  It brings a different perspective.  A little bit of a different perspective to the Court.  Look, most of these nominees in the past and of course the current Court, theyve all served as judges before they were elevated -

ABRAMS:  Is that bad?

SEKULOW:  No, I dont think its bad, but I think its okay to have someone outside that -

ABRAMS:  No, Im not saying its not okay; Im saying why is it a plus?

SEKULOW:  I think because it brings a different perspective of someone thats not been sitting in the tower of the Court.  Theres something else about Harriet Miers, Dan, though, that people are overlooking.

I mean no one should sell her short for a moment as far as intellect goes.  This is a woman that even the National Law Journal recognized twice as one of the hundred most influential lawyers in America; shes influential -

PILON:  Im not - look - Im not saying shes not - influential lawyers doesnt necessarily mean intellectual.

SEKULOW:  Well, to get to the stature she has in life, to be the counsel to the President of the United States, to serve as the managing partner of their law firm, shes a smart woman and I think shes well credentialed and look, the late chief justice, William Rehnquist before he was on the Court as an associate justice was a lawyer in the Justice Department.

ABRAMS:  All right John Council, I apologize for ignoring you up to this point -

JOHN COUNCIL, TEXAS LAWYER REPORTER:  Thats okay.

ABRAMS:  I wanted to get the politics out with them.  Let me read you this is from again from the blog of very conservative columnist who used to work with Harriet Miers:  In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal:  she once told me that the president was the most brilliant man she had ever met. 

She served Bush well, but she is not the person to lead the Court in new directions - or to stand up under the criticism that a conservative justice must expect.

What do we know about her intellectual background?

COUNCIL:  Well, what Ive been doing all day long is talking to lawyers in Texas who know Harriet Miers and have worked with her and frankly I was sort of surprised by her nomination because I thought it was going to be Al Gonzales.

But when I talked to these lawyers they said, look, I mean this is a perfect pick for the Court.  Shes not an ideologue, shes highly intelligent and shes got the trust of the president so what else could you ask for?  And this is from Republicans and Democrats alike.

ABRAMS:  Yeah, and what about, again, what about her intellectual prowess?  Again, I think thats a term thats so - even when I ask I feel like its such a loaded sort of intellectual prowess as if theres some objective way to judge how intellectual someone is, but what do they say about that?

COUNCIL:  Well, I mean you dont, become the president and managing partner of the fifth largest firm in Texas by being an idiot so I really think that when these lawyers say that shes smart and is well-researched and looks at all sides of an issue, I tend to believe them.

ABRAMS:  Its silliness to suggest that someone is going to say she shouldnt be on the Court because shes not smart enough.  I mean -

COUNCIL:  Right.

ABRAMS:  I mean, thats going to be a non-issue.

COUNCIL:  Right, right.

ABRAMS:  And final thought on this Roger Pilon, I mean if so many people are in agreement that shes a good nominee, are you just saying youre just not sure about her?

PILON:  No.  And nobody is saying shes an idiot.  What we are saying is that we are concerned because for 30 and more years there have been battles raging in this country about the Constitution, its meaning, the direction of this country, the doctrine of enumerated powers, enumerated rights on enumerated rights.

She has been absolutely absent from this.  What makes us think that at the age of 60 shes going to start learning on the job?  Is that what we want?  Especially when there is such a pool of talent out there that the president could have drawn from.

Here we have a typical Bush move drawing from some - someone he knows. 

How do you get to be White House counsel? 

SEKULOW:  If you wanted - you want him to nominate somebody he - Roger you want him to nominate somebody he knows; somebody that he understands their judicial philosophy.  Dont sell this woman short.  Im -

PILON:  No, Im selling the president short.  I think that the president is the problem here.  Lets be very clear about that.

ABRAMS:  I got to wrap it up.  The Tom DeLay stuff, Im sorry, took a little - took away some of our time.  Roger Pilon, Jay Sekulow, John Council, thanks a lot.  Appreciate it.MSNBC - The Abrams Report
October 3, 2005

Discussing the Nomination of Harriet Miers to the Supreme Court

HOST:  DAN ABRAMS:  Now onto the Supreme Court.  President Bush passes over a corps of known conservative jurists and nominates his own lawyer, White House counsel Harriet Miers to the U.S. Supreme Court.

The 60-year-old has never served as a judge and who has virtually no public paper trail, which is making some conservatives nervous.  Former Bush speechwriter and conservative columnist David Frum wrote today on his blog, quote, I worked with Harriet Miers shes a lovely person, intelligent, honest, capable, loyal, discreet, dedicated.

I could pile on all the praise all morning.  But nobody would describe her as one of the outstanding lawyers in the United States and there is no reason at all to believe either that she is a legal conservative or, and more importantly, that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.

Even the Democratic leaders in the Senate seemed at the least relieved.

(BEGIN VIDEO CLIP)

SEN. HARRY REID, SENATE MINORITY LEADER:  I have to say without any qualification that Im very happy that we have someone like her.

SEN. CHARLES SCHUMER (D) NY:  It could have been a lot worse.

(END VIDEO CLIP)

ABRAMS:  All right, joining us now to discuss this new nomination is Roger Pilon of the Cato Institute, and Jay Sekulow of the American Center for Law and Justice, and John Council reporter for Texas Lawyer magazine.

It is interesting to have Mr. Pilon and Mr. Sekulow, who dont always agree on issues, but often - often agree on issues, disagreeing on this one.  Jay, why do you think so many conservatives are so nervous and why are you comfortable with this nomination?

JAY SEKULOW, AMERICAN CTR. FOR LAW AND JUSTICE:  Well, Ive worked with Harriet Miers, Ive seen the kind of involvement shes had in the judicial process so far in this election.  Shes been very involved in the selection of judges.

Ive seen the kind of work shes done in that regard.  Ill also tell you this.  This is a situation where the president has known Harriet for a long time, over a decade. 

He knows how she thinks, he knows what her views are, so some of the comparison that some of my colleagues, the conservative colleagues are making comparing this to the situation with Justice Souter and from the first President Bush is not even an accurate comparison because in this particular case President Bush right now knows Harriet Miers and the first President Bush did not know David Souter - he relied on staff.

So youve got a different relationship there and it -

ABRAMS:  Jay -

SEKULOW:  Go ahead.

ABRAMS:  Is she opposed to Roe v. Wade?  As far as you know?

SEKULOW:  I dont know what her stand on abortion is.  I do know this, when the American Bar Association took the position that they were going to advocate in favor of abortion and the right that was recognized in Roe v.  Wade, she led the charge against it.

She thought that the ABA should not be doing that.  Now having said that, I havent had a conversation with her on Roe v. Wade, but she said something very important today when she was talking to the press and after the president nominated her - she said I understand my role as judge, I understand that what the words of the constitution means and how to apply them.

That to me tells a lot about a nominee.

ABRAMS:  Thats interesting - let me play that piece of sound and then I want to ask Roger Pilon about it.

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)             

ABRAMS:  Mr. Pilon, isnt that sort of code words for dont worry, Im going to be a conservative?

ROGER PILON, CATO INSTITUTE:  Yes, it is, but of course its only scratching the surface.  The devil is in the details and thats whats so troubling to so many of us.

This is a woman who in 60 years has written almost nothing.  We have been able to come up with a couple of thousand-word articles from the Texas Bar Journal on very innocuous subjects.

The role of a Supreme Court justice is one of examining the case before her, deciding the case on the law.  But the law is extraordinarily complex in case after case.

After all, its the difficult cases that make it to the Supreme Court.

ABRAMS:  Yeah.

PILON:  So - so its a very intellectual job.  There have been battles raging for years over constitutional jurisprudence.  She has been utterly absent from those battles.

ABRAMS:  Yeah and you know and I dont - and I dont get - and I dont quite get this comment from Harry Reid sort of suggesting that its a plus that she hasnt been a judge before.  Listen to this:

(BEGIN VIDEO CLIP)

REID:  Im very happy with the fact that we have someone who has been nominated by the president who is like approximately 39 other people who have served on the Court.  People who have had no judicial experience.

I think thats a plus, not a minus.

(END VIDEO CLIP)

ABRAMS:  You know, Jay, Ive heard a number of people say that.  I dont get how its a plus.  Im not saying it should be a negative, and Im not saying it should be used against her because, you know, the senator is right and the president is right in saying its happened many times before but how is it a plus?

SEKULOW:  Well I think there is a plus to it.  It brings a different perspective.  A little bit of a different perspective to the Court.  Look, most of these nominees in the past and of course the current Court, theyve all served as judges before they were elevated -

ABRAMS:  Is that bad?

SEKULOW:  No, I dont think its bad, but I think its okay to have someone outside that -

ABRAMS:  No, Im not saying its not okay; Im saying why is it a plus?

SEKULOW:  I think because it brings a different perspective of someone thats not been sitting in the tower of the Court.  Theres something else about Harriet Miers, Dan, though, that people are overlooking.

I mean no one should sell her short for a moment as far as intellect goes.  This is a woman that even the National Law Journal recognized twice as one of the hundred most influential lawyers in America; shes influential -

PILON:  Im not - look - Im not saying shes not - influential lawyers doesnt necessarily mean intellectual.

SEKULOW:  Well, to get to the stature she has in life, to be the counsel to the President of the United States, to serve as the managing partner of their law firm, shes a smart woman and I think shes well credentialed and look, the late chief justice, William Rehnquist before he was on the Court as an associate justice was a lawyer in the Justice Department.

ABRAMS:  All right John Council, I apologize for ignoring you up to this point -

JOHN COUNCIL, TEXAS LAWYER REPORTER:  Thats okay.

ABRAMS:  I wanted to get the politics out with them.  Let me read you this is from again from the blog of very conservative columnist who used to work with Harriet Miers:  In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal:  she once told me that the president was the most brilliant man she had ever met. 

She served Bush well, but she is not the person to lead the Court in new directions - or to stand up under the criticism that a conservative justice must expect.

What do we know about her intellectual background?

COUNCIL:  Well, what Ive been doing all day long is talking to lawyers in Texas who know Harriet Miers and have worked with her and frankly I was sort of surprised by her nomination because I thought it was going to be Al Gonzales.

But when I talked to these lawyers they said, look, I mean this is a perfect pick for the Court.  Shes not an ideologue, shes highly intelligent and shes got the trust of the president so what else could you ask for?  And this is from Republicans and Democrats alike.

ABRAMS:  Yeah, and what about, again, what about her intellectual prowess?  Again, I think thats a term thats so - even when I ask I feel like its such a loaded sort of intellectual prowess as if theres some objective way to judge how intellectual someone is, but what do they say about that?

COUNCIL:  Well, I mean you dont, become the president and managing partner of the fifth largest firm in Texas by being an idiot so I really think that when these lawyers say that shes smart and is well-researched and looks at all sides of an issue, I tend to believe them.

ABRAMS:  Its silliness to suggest that someone is going to say she shouldnt be on the Court because shes not smart enough.  I mean -

COUNCIL:  Right.

ABRAMS:  I mean, thats going to be a non-issue.

COUNCIL:  Right, right.

ABRAMS:  And final thought on this Roger Pilon, I mean if so many people are in agreement that shes a good nominee, are you just saying youre just not sure about her?

PILON:  No.  And nobody is saying shes an idiot.  What we are saying is that we are concerned because for 30 and more years there have been battles raging in this country about the Constitution, its meaning, the direction of this country, the doctrine of enumerated powers, enumerated rights on enumerated rights.

She has been absolutely absent from this.  What makes us think that at the age of 60 shes going to start learning on the job?  Is that what we want?  Especially when there is such a pool of talent out there that the president could have drawn from.

Here we have a typical Bush move drawing from some - someone he knows. 

How do you get to be White House counsel? 

SEKULOW:  If you wanted - you want him to nominate somebody he - Roger you want him to nominate somebody he knows; somebody that he understands their judicial philosophy.  Dont sell this woman short.  Im -

PILON:  No, Im selling the president short.  I think that the president is the problem here.  Lets be very clear about that.

ABRAMS:  I got to wrap it up.  The Tom DeLay stuff, Im sorry, took a little - took away some of our time.  Roger Pilon, Jay Sekulow, John Council, thanks a lot.  Appreciate it.