NPR - Talk of the Nation - New Documents Shed Light on Views of Supreme Court Nominee Miers

NPR - Talk of the Nation
October 18, 2005

New documents shed light on Miers' views

HOST:  NEAL CONAN:  Let's now talk with one of the supporters of Harriet Miers. Jay Sekulow joins us. He's chief counsel for the American Center for Law & Justice, and he joins us from their studios in Virginia Beach.

Nice to have you back on the program.

Mr. JAY SEKULOW (American Center for Law & Justice): Hey, thanks for having me.

CONAN: So what do we learn about Harriet Miers today? How does this particularly Texans United for Life questionnaire shift this debate?

Mr. SEKULOW: Well, I think it's a change that you're going to see coming now focused from groups on the left, that I expect--in groups like People for the American Way and Planned Parenthood that are now going to come out opposed to Harriet Miers where they were opposed to her before, but they didn't have a lot to sink their teeth into. I think they're going to look at this questionnaire. And it's not by the way just the Texans United for Life questionnaire, but her answers, also, which I thought were great, which obviously they're going to not think are so great with regard to the role of judicial activism and the role of what a judge is supposed to do. So I think what you're going to see now is not so much a focus on a fight between the right, so to speak, but now I think it's going expand to maybe significantly mute out the fight on the right when you have now the advocacy groups, probably by tomorrow morning if not by this evening, fully engaged. I think what Jan Greenburg just said is right. By this evening's news, this is going to be the story.

CONAN: So you see this returning to--well, it's a little strange to put it this way--but a more traditional fight between liberals and conservatives.

Mr. SEKULOW: Yeah. No, actually, Neal, that's a good way of putting it. I mean, I think it's going to be more of the traditional advocacy roles are going to be played here. I mean, there's one thing that I think has been answered today, and that is this is not someone that has come to her views out of a vacuum. I mean, she's been thinking about these issues and her questionnaire shows it. By the way, the questionnaire also shows that she's had complex constitutional issues that have been litigated all the way to the Supreme Court of the United States. So some of this idea that she's, you know, what's her experience level? She's had real trial experience, real court of appeals experience; three cases that have gone to the Supreme Court where she was fighting for the court not to hear them in two of them. And--but I do think you're looking at more of a traditional fight. I just am hopeful, and I may be overly optimistic here, that what we're going to see is not that all of a sudden you've got this exclusion, and that because she might harbor personally a pro-life conviction that somehow she's now disqualified from serving.

CONAN: But you mentioned the three cases that went to the Supreme Court. She did not argue those cases before the Supreme Court.

Mr. SEKULOW: No. She--in two of them she wanted the court not to hear the case, so one she wanted the court to hear it and two she wanted the court not to hear it. She had won successfully in the court of appeals in the 5th Circuit. So--but these are still ca--look, I do a lot of Supreme Court practice. I mean, most of my practice is at the Supreme Court. But as anybody will tell you at the Supreme Court, it's not just the oral arguments. The briefs are very important. She obviously has that experience.

CONAN: Stay with us, Jay Sekulow.

Mr. SEKULOW: OK.

CONAN: We're going to take a short break, and when we return we'll continue talking about the nomination of Harriet Miers and her response to questions both in the past couple of weeks and back in 1989 when she was running for City Council in Dallas, and how that changes the debate over this Supreme Court nomination.

I'm Neal Conan. You're listening to TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

We're talking today about the nomination of Harriet Miers to the Supreme Court of the United States. Earlier today the White House released Harriet Miers' written replies to questions from the Senate Judiciary Committee and a questionnaire that she filled out from a pro-life group in Texas in 1989. You can read Miers' responses to the Senate Judiciary Committee's questions at our Web site at npr.org. In fact, both of those questionnaires are listed on our Web site if you'd like to read them. Again, that's npr.org. You're also invited to join our discussion here. Our number is (800) 989-8255. The e-mail address is totn@npr.org. Right now we're speaking with Jay Sekulow, chief counsel for the American Center for Law & Justice.

And, Jay, just before the break, you were talking about how this will cease being so much an argument within the conservative moment and return to being a more traditional argument. There was a statement issued today by David Vitter, the freshman Republican from Louisiana. He issued a statement, said, 'My top questions are: Does she--Harriet Miers--have a consistent and well-grounded conservative judicial philosophy? And what objective evidence is there of it from her life's work?' How would you answer the senator?

Mr. SEKULOW: Well, I think you have to look at her job responsibilities, what she's done. And when you look at that, you see a lawyer that has had no only great trial experience with real cases in real courtrooms, but she's been advising the president of the United States and she served as a deputy chief of staff, deputy political adviser basically, for the president on matters of policy. So this is not someone that comes to the law without a known record, and what's lacking here is she has not appellate experience or any courtroom experience as far as being a judge. But that, as Jan Greenburg just said, your last guest--that's pretty common within Supreme Court history. In fact, it's only recently that you've had most of the nominees--all of them basically being court of appeals judges. Chief Justice Rehnquist, before he was nominated to the court, worked for the Justice Department. Lewis Powell was the president of the American Bar Association and was a private lawyer in Richmond. Byron White...

CONAN: Clarence Thomas worked for the Justice Department as well.

Mr. SEKULOW: Yeah. He did. He also served as a--he was a court of appeals judge for about a year, so this idea that she doesn't have judicial experience I don't think it's going to cut it.

Now I don't think for a moment that the debate on Harriet Miers is going to be over with among the right, but I will say this: I think one thing that White House has accomplished over the last 24 hours has been that the president's not backing down from this nominee nor is Harriet Miers going to somehow withdraw herself. That's despite the protests coming from some friends of mine that would like her to back away. But I just--that's not going to happen. The president--if anything the White House I think is indicating and signally they're very committed to this nomination.

CONAN: Yet clearly, the president's 'trust me' argument did not cut a lot of ice with some of your friends.

Mr. SEKULOW: It did not, which is interesting because the president has had such a great track record on the appointment of judges. My friends that are disagreeing with this wanted a different kind of pick. They wanted--and there's nothing wrong with this and I think it's a legitimate expression. I think some wanted a level of a joust in public, if you will, that would have been an educational system--part of an educational process by having a noted court of appeals judge who has opinions out on various cases. That's not the direction the president chose to go, but I think some of this--what I call soundbite analysis--fortunately on your program and some of the others on this network, you don't have to deal with it that way. You could--there's more discussion. But look, it's been a lot of soundbite analysis and people who don't like Harriet Miers generally don't know her. And the few that do know her and don't like her don't really say it's her judicial philosophy; it's just they're saying there was a different bench the president could have gone to, so to speak.

CONAN: Let's get another caller on the line. And this is Jim. Jim, calling us from Asheville, North Carolina.

JIM (Caller): Yeah. Hi. I have a real concern about the whole attorney-client privilege issue here. I mean, she's been the president's attorney for a long time, and it is not with--beyond the scope of imagination that they're could be some legal issues involving the Bush administration, and I'm concerned that there may be a lot of information that may not be accessible to any kind of legal program because of her relationship to the president.

CONAN: She was both his private attorney for a while in Texas, and of course his White House counsel--his attorney at the White House, Jay Sekulow.

JIM: Absolutely.

CONAN: And--yeah. How--is this going to figure in?

Mr. SEKULOW: Well, I think, look, the issue of what you're talking about there is the issue of recusal. And will a nominee or now a Supreme Court justice have to recuse themselves from a case because of either personal knowledge or what would be perceived as a conflict of interest. Interestingly, at the Supreme Court the only one that decides that is the individual justice; it's not reviewed by anyone. But justices have recused themselves from cases and Harriet Miers knows the context of judicial ethics. She served as the president of the Texas Bar association, so she's fully aware of what's really at stake in those kind of--you want to avoid the appearance of impropriety. So I don't think that's going to be a significant issue because many nominees to the court have come out of government service, and they know when they have to exercise their recusal and when they don't. And by the way, Jim, you're calling from one of my favorite parts of the country in Asheville, North Carolina.

JIM: Now it's great.

Mr. SEKULOW: Pretty place, especially this time of year. Yeah.

JIM: Yeah.

CONAN: Thanks.

Mr. SEKULOW: Wish they'd move the court down there sometimes. It'd be a blast.

JIM: Hey.

CONAN: Maybe not in the summer.

Mr. SEKULOW: Probably not.

CONAN: OK, Jim. Thanks for the call. And let's see if we can get another caller on the line. This is Stacy. Stacy, calling us from Las Vegas, Nevada.

STACY (Caller): Hi. Am I on?

CONAN: Yes, you're on the air, Stacy. Go ahead, please.

STACY: Oh, OK, good. I want to know actually how possible is it that if she did get nominated and confirmed and sat on the Supreme Court, how possible is it that she would have the opportunity to overturn Roe vs. Wade? I mean, is this something we should really be worried about?

CONAN: The--how...

STACY: I know this is...

CONAN: How often do these cases come to the Supreme Court? I guess the Supreme Court gets to decide which cases it accepts.

Mr. SEKULOW: Sure, but--yeah, but...

STACY: But a case would have to come before her, correct?

CONAN: Correct.

Mr. SEKULOW: Well, of course, and let me tell you this, and I'm one that litigates a lot of the light fixtures at the Supreme Court of the United States. There's cases up there this term not involving the right as recognized in Roe, but you've got the parent consent case that'll be argued in November--and November 30th. She may well be seated by then. We'll see soon. We've got a case involving RICO and pro-life protests that's up there now. The biggest case that's up there--and it is a big case--is that the Justice Department last month filed a petition for review on the partial birth abortion case. I think that is likely to be heard...

STACY: All right.

Mr. SEKULOW: ...by the court. We'll--but that does not get to the right to abortion recognized in Roe vs. Wade. You're right. To get to that case, it's going to have to be fresh challenge. Those are not in the system right now because even if Harriet Miers were confirmed and even if she were then to say that Roe vs. Wade should be overturned and even if Chief Justice Roberts and Scalia and Thomas agreed with her, that's four votes. You have to have five, and there's right now not five votes. And of course, all that does is return the issue of abortion to the states, and they'll either regulate it or not regulate it or allow it or not. But the cases like partial birth abortion are the--really the--and the parental consent laws are the cases that are up there.

STACY: OK. Well, that answers my question. Thank you.

CONAN: Stacy, thanks very much for the call. And, Jay Sekulow, thank you very much for being with us today. We know you're busy.

Mr. SEKULOW: Thank you very much for having me.

CONAN: Jay Sekulow is chief counsel for the American Center for Law & Justice, and he joined us from their studios in Virginia Beach.