19 Oct 2005 Specter and Leahy on Miers Today
For those who may be interested, here’s a PDF copy of the letter that Senators Arlen Specter and Patrick Leahy, respresenting the judiciary Committee, sent to Harriet Miers today, asking, in Specter’s words, “many, many questions.”
To follow is a transcript of remarks to the press by the two Senators today. Some of it is uninteresting, but I get the sense that the Senators are buckling their figurative seat belts. Specter seems to be saying that he’s seeing more public interest in this hearing than in Clarence Thomas’s, and that’s saying something.
SPECTER: The confirmation hearings on Ms. Harriet Miers are scheduled to begin on Monday, November 7. It has not been easy coming to a date because it was only yesterday that we received a response to the questionnaire.
And Senator Leahy and I took a look at it and agreed that it was insufficient and are sending back a detailed letter asking for amplification on many, many of the items.
The FBI report which was supposed to been in last week is still not yet at hand but may be in hand later today or may not be.
Senator Leahy and I worked, as I think you all know, very coordinately on the Roberts hearing. And to the extent that it was a success, it was because we worked together, and in the context of very frequently disagreeing with some elements of our own party in what we did.
And that same factor is at work now on a whole range of issues, and scheduling is number one.
It was only two weeks and two days ago that Ms. Miers name was sent to the Senate. It seems like a year and a half ago for all that has happened. And we were unable to arrange a scheduling time before the recess. And Senator Leahy and I talked many times during the recess and again on Monday and again yesterday. And there are divergent views as to when the hearings ought to start.
There is a keen interest in many quarters on concluding before Thanksgiving, and that’s a fine target if it can be accomplished. But we’re going to do it right. We’re not going to do it fast.
And there are some good reasons not to start as early as November 7 because of the questionnaire not really being completed. And the ABA report’s going to be pushed very, very tight to get it done during the week of the 7th — and the FBI report.
And Senator Leahy will express himself on that, and he’s got concerns on his side. But my final thought was if we don’t start, we’re not going to finish. And we may not finish before Thanksgiving. We’re going to have to take whatever time we need.
We do not have much paperwork. We do not have much of a record. And there are going to be requests to have very extensive lines of questioning, and we will accommodate that as they arise.
But I think it’s been a chaotic process, very candidly, as to what has happened, because of all of the conference calls and all of the discussions, which are alleged in the back room — I don’t know, although we’re looking into them.
And when Ms. Miers has met with senators, including me, we like to inform the media, and you tell the public because there is a very, very keen interest in what’s going on here. I haven’t seen as much interest in a nominee in the time that I’ve been here as there is in Ms. Miers.
And really it is not the best format to talk to the nominee behind closed doors, then come out and share the information with the media, but I think that that’s part of our process and the advantages outweigh the disadvantages.
But I am very anxious to get this hearing into the hearing room, where we have a stenographer and we have a witness and we have orderly procedures, and we ask questions and we seek answers and we get follow-up questions and take the proceedings away from the back rooms and away from the conference calls and away from the corridors and do it like the Constitution says it ought to be done.
LEAHY: Thank you, Arlen.
I share — one, I appreciate very much what the chairman has said. We have worked together for a long time. Some have suggested it goes back to our days as prosecutors and that kind of common bond that we share.
It’s also respect for the Supreme Court. Whoever goes on there is on there for a lifetime. I’ve said over and over again that we 100 senators stand in the shoes of 280 million Americans in deciding who goes on the Supreme Court.
The rights of every single person in this room and all other 280 million Americans is affected by whatever that person might do on the United States Supreme Court. And I think there’s a very real responsibility for us to do it right, not do it politically, but to do it right.
And the chairman said it’s more important to get it right than to get it done fast. I couldn’t agree more. And we will.
The letter than we’re sending out today is — I’m sure there will be copies here somewhere — but this letter is very specific to the White House. The questionnaire that came up, the answer to the questionnaire that came up was — the comments I have heard range from incomplete to insulting. Certainly, it was inadequate and it did not give us enough to prepare for a hearing.
We will need to have more.
Now, I want to make sure she’s going to be an independent justice, that she’s going to be independent of the White House.
Some are saying, Well, we can be sure she’ll vote just the way the president wants her to. Well, nobody should have assurances — I don’t care if it’s a Democratic president or a Republican president — that the nominee’s going to vote the way they may want.
This is the beauty of our system in having these lifetime appointments so that somebody that is confirmed, they can say to the president, Thank you very much for the nomination, I’ll see you, and go on and be independent.
Now, this is a very fast schedule. Senator Specter and I met with Senator Frist and Senator Reid last night and discussed it. There are, as he said, some on my side who are very concerned about it. We did not have an end time. And whether we get out in Thanksgiving or not is not my concern; my concern is that it is done right.
And if the questions are not answered or if they are answered as incomplete as they have been, then it’s going to be a long hearing indeed.
But I appreciate working with Senator Specter. He and I have a good personal relationship. We talk — we’re on speed dial on each other’s phones and we talk many, many times on this. We work together. We keep our word to each other. And we try to have something where at least the other 98 senators know what they have when they get done. That’s what we’re trying to do today.
It will mean canceling a lot of hearings and other matters between now and November 7th. The chairman has agreed to that. I think we almost have to, because it’s also a busy time in everything from appropriations — I spent the morning in Agriculture, which I do try to remind people it’s one of the other committees I serve on — this morning and we have a lot of things to get done.
QUESTION: A question on logistics. Will this be one location or two?
SPECTER: Where we’re going to have the hearings?
LEAHY: You didn’t like the caucus room?
SPECTER: I sense a movement among the media to hold down the costs and have it just one spot. So we’ve decided to hold the hearings in one spot — this room.
SPECTER: We’re going to do it in one room. We’re going to do it in Hart. I understand there were some costs involved in the transition, and we don’t want to make it more expensive or more difficult for anybody, so we will begin and hold all the proceedings in the main hearing room in Hart.
QUESTION: Have any of your agreed to not exercise your right to hold over a nominee? Do you maintain that right to hold over this nominee?
SPECTER: No agreement.
LEAHY: We discussed it. I don’t think either on the Republican side or the Democratic side you would have agreement today, and I think that’s appropriate. This is not a John Roberts where we’ve had a whole lot of material — still as much as I would have liked — but a whole lot of material, the August recess time to go through it, and a person of a different nature.
When we went into those hearings, I think everybody knew they were going to be able to get the answers they wanted, so we were able to work as Senator Specter and I did — the two us, we worked out a time and went forward.
I think it’s far too early to do that. If there is such a time, I know that I can work with the chairman.
I don’t think you’d get that kind of agreement on either Republican or Democrat.
SPECTER: And projected schedule — just projected and not certain, depends on what happens — would be to start on the 7th and use that week for the hearing, and have an executive session on Tuesday, the 15th. Anybody wants to carry it over — every senator has an absolute right under our committee rules to carry it over. And if that went down, it would take it into Thanksgiving week.
If that right is not exercised and we conclude the committee work in the morning, as we did with Roberts, and go to the floor the next day on the 16th and 17th and 18th — which will be Friday — or even the 19th to vote, that’s the projection. And it will depend very much on how it goes.
LEAHY: I don’t want any of you to be nervous, but my wife and I, at breakfast this morning, decided, as much as we like Thanksgiving at our farmhouse in Vermont, we are planning on having Thanksgiving in Washington.
Well, whatever you read into that.
QUESTION: Senator Specter, what was so insufficient about Harriet Miers’ questionnaire, especially considering you didn’t join in with Democrats for a request for additional information on John Roberts?
SPECTER: I’m joining with Democrat. It’s in the singular. His name is Leahy. Nobody else’s name is on the letter but his and mine.
Well, I’ll give you one illustration. On the civil cases which she has handled, Mike O’Neill (ph) and our Judiciary staff sent home with me over the recess a big binder of opinions. And I talked to you about some of them, the easements and the in personam jurisdiction and the patents for Microsoft, et cetera.
She gave us a skimpy little group. But no reason we should know more about her cases than she does. And we will make the letter publics.
LEAHY: And keep in mind, one of the major issues you’re going to have — well actually, there’s a lot of issues — well, one is just the obvious one on questions of recusal.
If you have a lot of matters worked on in the White House that are on their way ultimately to the Supreme Court or off to the courts of appeals, possibly to the Supreme Court, including the issue of just the justices deciding which cases to take, well, then you’ve got some real issues of recusal.
QUESTION: Do either of you ever remember asking a Supreme Court nominee to provide their questionnaire, in all the years that you’ve been on the…
SPECTER: All the years that I have been chairman, I’ve never done that.
LEAHY: I was chairman for a while. I didn’t, either.
QUESTION: Do you remember this ever happening before? Has this ever happened before?
SPECTER: Oh, I think probably so, that there’s been supplements. Goodness knows, after the hearing (inaudible) short of an issue, questions come up by the reams. We’re very good at asking questions — I mean, having our staff draft questions which we ask.QUESTION: You describe the (inaudible) as chaotic. Does that reflect the level of preparation or coordination from the White House at all?
SPECTER: On the insufficient response to the questionnaire?
QUESTION: Well, you describe the whole process of the nomination so far as chaotic, and you alluded to some conference calls.
SPECTER: Well, a good part of what I’m talking about as chaotic is not the White House. The insufficient response to the questionnaire is the White House. And, frankly also, the nominee. What I’m referring to are all of the forces which are at work out here commanding media attention and commanding public attention.
There has been controversy before this nominee who’s uttered a formal word than I have ever have ever heard. That’s what I’m referring to.
I mean, we’re conducting inquiries into collateral matters like who’s on the conference call and who said what to whom. And I read in the Post yesterday that one of the individuals was adamant because there was no guarantee as to how she was going to vote on Roe. I never heard the likes of that.
The core of judicial independence is not knowing how they’re going to vote, and the word guarantee was used. Sounds as if you’re buying a washing machine.
LEAHY: You know, if somebody were to guarantee how they were going to vote on a particular issue that might come before the Supreme Court, they’re not qualified to be on the court. And I think that John Roberts, I think every single nominee I’ve ever voted on would agree with that — Republican and Democratic.
We do not have enough — as far as chaotic, we don’t have enough in this questionnaire, the answers so far, to go forward. That’s why we have to have more.
In her own interests, I would think she would want more. So in the White House, the president made the nomination, they would want more. Today, there isn’t enough. Let’s hope by the time of the hearing, there is.
QUESTION: Senator Specter, would you be able to make an informed decision about this nominee if she refuses to, in accordance with the president’s strictures, on not revealing executive deliberations, positions she took or advice she gave on constitutional issues…
SPECTER: Boy, that’s a tall bridge you’re asking me to jump off on. I’m going to — as I’ve said before, I’m going to jump off that bridge if and when I come to it.
QUESTION: You’ve asked for a lot of additional information here. You said in the past that you were looking at Harriet Miers to guide you as to when she would be prepared for the hearing.
So my questions are twofold. First, did she tell you that she would be prepared by November 7th? And, second, what is the urgency…
SPECTER: Is this a two-part question or…
QUESTION: Yes, this is the second part.
What is the urgency to have the hearings on the 7th when you asked for so much information and you said yourself that she obviously needs a lot of time to prepare?
SPECTER: The answer to your first question is that I talked to her a week ago Monday, on the 10th, and said: We’re not going to start these hearings until you’re prepared. And she said November 7th she’d be ready to go.
The question of the urgency — when you have a date, it is a tremendous factor in getting people focused. And I want to get this process focused. And to use the analogy to trial work, which is very apt, when you get to the courthouse steps, you get matters resolved in the court.
And I want to get this — folks, we’re never going to finish these hearings unless we start them. And both Senator Leahy and I have made it emphatic that starting them on the 7th does not give us any day as to when we’re going to finish them.
LEAHY: I intend to, once the revised questionnaire comes up — and I would hope they do it as quickly as possible and I would hope that this time they get it right and get it complete — that I’ll meet again with Ms. Miers, at least have another private meeting with her.
QUESTION: Can you talk a little bit about what was said in the conversation where she called you and told you that your interpretation of what had been discussed on Griswold wasn’t really accurate?
SPECTER: Would I talk a little bit about that? No.
I’ve already said as much as I’m going to, but that will be a prime subject for the hearing.
QUESTION: Is that one of the confidential closed-door meetings that you are troubled is influencing this hearing?
SPECTER: Yes. That’s one of them.
I’ve had to — this will be the 11th that I’ve participated in. Pat’s had one more than I. And I’ve never walked out of a room and had a disagreement as to what was said. And as I have said publicly, I accept her version.
And the only answer to avoiding that is not to say anything. And people want to know about her and about what these conversations are, and our practice I think uniformly is not to say everything but to say some of the things which are appropriate. And that’s one of the risks you run.
And the sooner we get into a hearing room where there’s a stenographer and a public record, the better off the process is.
LEAHY: If I could add just an editorial comment on this.
I’ve dealt with Senator Specter on a lot of legal issues over the years, certainly on Supreme Court cases and nominees, I’ve never known him to be anything less than precise on discussing cases and I’ve never known him to make a mistake on what he heard.
Having said that…
SPECTER: Or any other mistakes?
LEAHY: There was that vote in — you know, we may disagree on some philosophical issues. I’ve never known him to make a mistake on what he has heard on the interpretation of a case in a judicial matter.
I raised the point, as you know, in our private meetings, about this Dr. Dobson who had said that he had somehow a wink and a nod or some private assurances.
And I asked her, and re-asked her and re-asked her — because I said I was going to report it to the press and I wanted to make absolutely sure I had it clear from her — had she given or had she authorized anyone to give private assurances to anybody about how she would vote? She said, No, on both accounts.
I intend to re-raise that question again, of course, because there continues to be, at least if the news accounts are accurate or some of the transcripts I’ve seen are accurate, these private assurances seem to be — continue to be given by some. I’d like to know why.
QUESTION: Outside of the delicate issues of executive privilege, do you think that there are some issues or some documents the White House could turn over, maybe on policy issues, and there’s some things that (inaudible) committee are trying to find some middle ground, because there is so little information? Is that something you would be in favor of trying to find, some area where you get something from the White House…
SPECTER: Yes, we’re trying to do that. And Senator Leahy can speak for the Democrats, but a number of Republicans have asked for non-privileged information. There’s a very keen interest in learning more on all sides.
But this is going to be an unusual hearing where I think all 18 senators are going to have probing questions.
QUESTION: Does that include you, as far as (inaudible) Republicans asking for more information?
QUESTION: Mr. Chairman, today the House passed the food company lawsuit liability bill.
I’m wondering if that’s something you’re in favor of, if you’re going to be able to take that up (OFF-MIKE.
SPECTER: What’s the bill again?
QUESTION: The protecting food companies — the cheeseburger bill — on lawsuits..
LEAHY: Probably not the number one.
SPECTER: We will take a look at that legislation just as soon as we can — the cheeseburger bill…
… and if I can get Senator Leahy’s concurrence, we’re going to move it right ahead of the Miers nomination.
LEAHY: I somehow had this image of John Belushi, you know?
QUESTION: Senator, Ms. Miers was said by the White House to have been actively involved in previous judicial nominations. How do you explain that her questionnaire was (OFF-MIKE)?
SPECTER: I really can’t explain it. I think, in fairness to her, she’s facing a lot of questions at the same time. She’s making the rounds, seeing a lot of senators. She’s studying the cases. She’s got some duties which persist and she can’t avoid as White House counsel. And she’s a very, very busy person.
And that’s why we’re being so careful and not starting them until we have a date which she’s comfortable with.
QUESTION: Senator, can you elaborate on what you would consider from the White House non-privileged information and give some idea of what information does that involve?
SPECTER: Well, I can give you an illustration — and I say this at some risk, but I think this is totally accurate. She said that — I inquired about, when she functioned as White House counsel on judicial selection, about Roe, did she ask the nominees where they stood on Roe v. Wade — not asking her, but asking about nominees. And she said, I’ll answer that question. And we do not have a litmus test, and we do not ask people who are being considered for federal judgeships.
That’s an illustration of a question which she was prepared to answer. And I said, That’s a significant answer and I’d like to see you do more of that.
I should also note that the president has not yet said he wants any type of executive privilege here. And of course that’s very limiting even if he does — and only one person can claim that. The witness can’t claim executive privilege. Only the president can.
And then there are a lot of cases — sort of the number that came up during the Clinton administration, when the courts ruled very dramatically how limited it could possibly be.
QUESTION: Senator Leahy, you described the system, called the responses insulting. Will you give me an example or two of what was insulting about the responses?
LEAHY: Well, just the fact that we put together — this was not a questionnaire from Republicans or from Democrats. We put together a very thorough questionnaire. Senator Specter and I and our staffs worked very closely to make sure that it was a — I was going to say bipartisan, actually a nonpartisan — but just a good questionnaire.
And the fact that many of the questions really weren’t answered at all — you’ve got a one-word answer and you’ve got a two-part question; that’s not answered.
And it’s almost like — and we spend a lot of time on this because, again, not to play gotcha, but we have a responsibility to 98 other senators who then have a responsibility to every person in this country.
We’re working hard to carry out our responsibilities, not have this thing taken by winks and nods and quiet promises over conference calls; we’d actually like to know what the heck is going on.
And I sure want to know before I vote.
Now, I said with John Roberts, there were some questions I wish we could have had information on, but at least when I got done I felt I had enough to make up my mind, and I did. I cast my vote. I’m very, very comfortable with my vote, because I had enough to make up my mind.
And I’ve taken — incidentally, I’ve taken exactly the same position with Democratic administrations. When they filled out questionnaires for judges or anybody else, I’d say: You better be thorough on them because if I don’t like them, you got a problem.
SPECTER: Listen, we’re only going to take 35 more questions, so can you make them brief?
Let’s see how many questions we have so we can see where we’re going to go. One, two, three, four — we’ll take the last four questions.
QUESTION: Senator Leahy, are you insulted personally by her lack of responsiveness?
LEAHY: I have seen an incomplete questionnaire.
We sent out, I thought, a very good questionnaire. I was satisfied with the questionnaire that went out. Democrats and Republicans on the committee — and you know this is a committee that goes across the political spectrum — were satisfied with it.
I don’t know of anybody who would tell you in that committee that they were satisfied with the responses. So I would describe myself as unsatisfied, and I have to be satisfied before I’ll vote for anybody, Republican or Democrat.
QUESTION: A question about providing more policy decision documents or questionnaires while she was running for Dallas City Council: Why was it that you all specified that? Is it that you believe there are additional questionnaires on her abortion views, for example, that you should be aware of? Or were the records incomplete that you got yesterday?
SPECTER: Well, I believe she had provided relatively little as to what she did when she was on city council.
SPECTER: Well, the inquiry as to whether there are any more questionnaires like the one which came to light yesterday, we want to be sure that she searched the files.
And from the balance of her answers, they’re incomplete. We want to be sure that that question is not incompletely responded to.
LEAHY: If you want an interesting thing — and I would emphasize as I did with Roberts — abortion’s only one issue. There are so many, many other issues.
A question that could be asked by somebody who is either against Roe v. Wade or for Roe v. Wade, one question could easily be asked: If you’re in favor of a constitutional amendment,does that mean that you feel that the only way Roe could or should be overturned would be through a constitutional amendment? That would be an interesting question to ask. I wouldn’t be surprised if somebody does.
QUESTION: Senator Specter, are you putting into writing your request for more documents from the White House?
QUESTION: And will you make that available to…
LEAHY: I think we have copies…
SPECTER: We are putting it in writing and it will be made available to the media, to the public.
QUESTION: Was this the extent of it…
LEAHY: Well, let’s see what the answers are in this letter.
SPECTER: I’ve only seen a draft. I can’t (OFF-MIKE)
QUESTION: Senators, based on what you’re hearing from you colleagues on the (OFF-MIKE)
SPECTER: (inaudible) we’re going to say, no. I’m going to say, no.
QUESTION: What about you?
LEAHY: I have asked all Democrats — I’ve made the same request of my caucus and everywhere else.
As you know, rarely we’ll ever discuss anything from caucus but I can tell you this: I’ve made the same request I made during the Roberts, and that is keep your powder dry, wait until we’ve had the hearing, and then make up your mind.
As you recall, last time with Roberts, that’s exactly what happened: Half the Democrats voted for him; half the Democrats voted against him.
SPECTER: I think Senator Leahy has stated that preeminently fairly — preeminently fairly: Give this nominee a chance to be heard.
And that’s why we’re moving to a hearing just as promptly as is reasonable, given all the background circumstances.
Thank you all very much.