‘Chaotic’ Is How Specter Sees Miers Process

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The New York Sun

WASHINGTON – In demanding fuller answers to a questionnaire submitted early this week by Supreme Court nominee Harriet Miers, the two leaders of the Senate Judiciary Committee erected the first formal obstacle in a nomination process that the committee’s chairman, Senator Specter, characterized as “chaotic.”


Mr. Specter, a Republican of Pennsylvania, joined the committee’s ranking Democrat, Senator Leahy of Vermont, in asking Ms. Miers to expand on her answers to a 12-page survey about her academic and professional career and her experience, both in private practice and as White House counsel, in dealing with constitutional matters. Mr. Leahy said the reaction he has heard from senators is that her answers ranged “from incomplete to insulting.”


The letter asks Ms. Miers to explain the circumstances surrounding her temporary suspension from the Washington, D.C., Bar for nonpayment of dues; to provide a fuller list of her writings while in public office; to enumerate the cases in which she might be expected to recuse herself; to explain in greater detail the constitutional matters she has handled while in the White House, and to provide copies of all communications by the Bush administration to interest groups about how she would rule.


This last request reflects Mr. Specter’s growing frustration with press accounts alleging that, in the days before and after the nomination, White House surrogates privately sought to convince conservative leaders that Ms. Miers could be expected to support their causes. The White House has denied that it conducted a whispering campaign aimed at making assurances about how Ms. Miers would vote on hot-button issues, but Messrs. Specter and Leahy have said private discussions about the nominee have tarnished the confirmation process.


Despite their concerns about the questionnaire, Messrs. Specter and Leahy agreed to start the confirmation hearing November 7, but made no commitments on when it would end. Mr. Specter said he favors keeping to the White House timetable, in part to limit the influence of outside interests.


“When you have a date, it is a tremendous factor in getting people focused,” Mr. Specter said. “And I want to get this process focused.”


Some Democrats have said privately that they favored delaying the hearing because of the division that the nomination of Ms. Miers has caused among conservatives. Senator Schumer, a Democrat of New York who sits on the Judiciary Committee, said, “Beginning the Miers hearing on November 7th was not a bipartisan decision. Setting a date for the hearing before we have gotten any information or documents is putting the cart before the horse.”


A conservative movement against Ms. Miers that is particularly intense among lawyers gained momentum yesterday when a hero of many conservatives, Robert Bork, derided Ms. Miers in an opinion piece published in the Wall Street Journal. Mr. Bork, a former solicitor general whose nomination to the Supreme Court was rejected by a Democratic Senate in 1987, said Ms. Miers is not qualified to sit on the court because of her lack of known experience with constitutional law and because of questions about her ability to write and think incisively. Mr. Bork, a possible surprise witness at the hearing, described the White House defense of the nominee as “pathetic.”


Requests for supplemental information from a nominee are not rare, Judiciary Committee staffers said, though none could recall a nominee being asked to amend answers to questions that had already been answered once. President Bush’s first nominee, Chief Justice Roberts, provided the committee with supplemental information three times prior to his hearing despite having been confirmed by the same committee for a federal appeals court post three years earlier.


Also unusual was the fanfare with which Messrs. Specter and Leahy announced their bipartisan request, which they said will be followed up with another request for non-privileged documents relating to the five years Ms. Miers has worked in the Bush administration. An administration spokesman, James Dyke, said the White House will respond to the requests “soon” but added that the judiciary committee had been notified that the questionnaire and supporting materials would likely contain some gaps.


“From the first day when she was nominated, Ms. Miers told Mr. Specter that she had years of files to go through and that she would work to complete the questionnaire as quickly as possible, but that it was likely that she would have to send follow-ups to provide additional information,” Mr. Dyke said.


The public show of dissatisfaction over Ms. Miers raised the possibility that at least some Republicans and Democrats have agreed to a strategy whereby they will cast Ms. Miers as in competent. Mr. Specter is known for placing importance on a nominee’s academic credentials in reviewing their fitness for judicial posts, and many wonder whether Ms. Miers meets his standard.


Mr. Specter has also not concealed his dissatisfaction with a conversation he had with the nominee over the issues of privacy during a private meeting earlier in the week. Mr. Specter said he will press Ms. Miers at the hearing on a disagreement that arose over something she is said to have said about the 1965 case Griswold v. Connecticut in the meeting.


No Republican senator has committed to voting for or against Ms. Miers, though some have expressed dissatisfaction with the pick. Senator Lott, a Republican of Mississippi who has been openly critical, said yesterday that he will likely vote to confirm Ms. Miers. But he said the White House “missed an opportunity” by not nominating a more overtly conservative replacement for Justice O’Connor.


Not all Republicans were as openly critical of the questionnaire as Mr. Specter.


A spokesman for Senator Cornyn, a Texan on the Judiciary Committee who has been a staunch defender of Ms. Miers, said Mr. Cornyn had not indicated similar dissatisfaction. “I don’t know that he is,” the spokesman, Donald Stewart, said, “but he has the benefit of having known her for 15 years. He has said all along that as the senators get to know her, that will change things.”


Another Republican on the committee, Senator Hatch of Utah, also downplayed the request by Messrs. Specter and Schumer.


“Requesting more information from a nominee is part of the confirmation process,” Mr. Hatch said. “And that’s what this is – a process. I am sure this will not be the last time senators ask for more information. There are a lot of steps to this process, and it will not be complete until the Senate votes up or down on Ms. Miers, which I hope they will.”


The letter to Ms. Miers from Mr. Specter and Mr. Leahy is firm in tone. In one section, headed “constitutional issues,” it says, “you explained that as Counsel to the President you are regularly faced with issues involving constitutional questions, but gave us no specifics about the issues themselves, or the work that you personally did. Please provide the Committee with details concerning the specific matters you handled, the constitutional issues presented in those matters, and the positions you took related to those issues.”


The senators explained to the nominee in the letter, “This question was designed to help the Committee learn more about your experience with constitutional law, and if most of it was gained during your years in the White House, it is important that we know more about the specifics of that experience.”


In another section, headlined, “potential conflicts of interest,” the letter says, “Please be more specific in your answer to this question by telling the Committee any categories of cases from which you plan to recuse yourself, and by addressing in particular the problem of recusal as it relates to the litigation of cases arising out of matters on which you worked at the White House, or as a lawyer for President Bush in his personal capacity, or in service to his various campaigns.”


The senators explained to the nominee, “We are aware of the statutes and codes that generally govern these matters, but recusal decisions of Supreme Court Justices are more complicated because they are not subject to further review. The Committee would like you to address the issues specific to your situation.”


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