Miers' Documents Reveal Past Opposition to Abortion

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Running for city office in 1989, Supreme Court nominee Harriet Miers indicated support for a constitutional amendment banning all abortions except to save the life of the mother. The 1989 response to a questionnaire was included in background material Miers provided to the Senate.

MELISSA BLOCK, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

In 1989, Supreme Court nominee Harriet Miers promised to support a constitutional amendment banning all abortions, except to save the life of the mother. That pledge is contained in material given to the Senate today, part of Miers' response to a lengthy questionnaire about her views and background. NPR's Nina Totenberg reports.

NINA TOTENBERG reporting:

In the 1989 questionnaire, Miers, then a candidate for the Dallas City Council, endorsed all the positions put forth by a group called Texans for Life. She said she would not only actively support a constitutional amendment to criminalize abortions, except to save the life of the mother, but that she would use her influence to keep pro-abortion people off the city health boards and commissions. White House spokesman Scott McClellan, however, continued to maintain today that Miers has not taken any position on the reversal of the Supreme Court's 1973 abortion decision Roe vs. Wade.

Mr. SCOTT McCLELLAN (White House Spokesman): The role of a judge is very different from the role of a candidate or a political office holder. And what she was doing in that questionnaire was expressing her views during the course of a campaign. The role of a judge is to apply the law in a fair and open-minded way.

TOTENBERG: Yesterday New York Democratic Senator Charles Schumer, after meeting with Miers, said the nominee had told him nobody knows her views on Roe.

Senator CHARLES SCHUMER (Democrat, New York): She said to me that she couldn't recall discussing the Roe v. Wade case and whether she would overturn it with anybody.

TOTENBERG: That assertion may be increasingly hard to sell as the White House struggles between the imperative of reassuring doubting cultural conservatives and the risk of losing not just Democratic votes in the Senate but perhaps moderate Republican votes as well. Indeed, several Republican and Democratic Judicial Committee aides said privately that it strained credulity to believe that a woman who was a mainstay of the Dallas legal community would never have discussed the landmark abortion case that originated in that city.

The White House political dilemma was writ large last night when nominee Miers called Senate Judiciary Committee Chairman Arlen Specter to say that he had been mistaken in telling reporters that in their conversation she had agreed with a key Supreme Court decision declaring a constitutional right to privacy. Specter then issued a terse written statement saying that he, quote, "accepted her statement" that he had misunderstood.

Meanwhile, today yet another conservative senator, Louisiana's David Vitter, issued a statement declaring himself yet to be fully persuaded on the nomination.

And while all that was going on, the questionnaire that Miers submitted to the Senate Judiciary Committee was itself raising questions, namely on the subject of conflicts of interest. When would Miers recuse herself from cases involving matters she worked on at the White House? The questionnaire was tailored for Miers in this regard, submitted jointly by Republicans and Democrats, with a question that asked Miers to explain specifically how she would resolve any conflicts that may arise by virtue of her service in three top jobs in the Bush White House. But Miers did not answer the question, except to say that she would abide by the spirit and letter of the law.

Professor STEPHEN GILLERS (New York University): I think it's a wholly inadequate answer.

TOTENBERG: NYU law Professor Stephen Gillers is the author of a leading text on legal ethics.

Prof. GILLERS: I think that the Senate has a right to know the extent to which she would have to recuse herself.

TOTENBERG: But nowhere in the 57-page questionnaire submitted to the Senate today did Miers even say what legal questions she worked on at the White House. Patrick Leahy is the ranking Democrat on the Judiciary Committee.

Senator PATRICK LEAHY (Democrat, Vermont): I was surprised at first. I thought maybe there'd been pages left out or something of that nature. I could not believe that there was so little in it.

TOTENBERG: George Mason University legal ethics Professor Ron Rotunda agrees.

Professor RON ROTUNDA (George Mason University): I think at some point she's going to have to explain what issues she'd work on and why she would or would not disqualify herself if those legal issues come up.

TOTENBERG: Indeed, if Miers is quickly confirmed, one of the first cases she would confront would be an abortion case in which the Bush administration takes a strong position. And it's common practice in this administration for the solicitor general's office to run by the White House counsel--in this case, Miers--briefs it intends to file in major cases like this. So would Miers have to recuse herself? Again, Professor Rotunda.

Prof. ROTUNDA: It's certainly a very fair question to find out if she was involved with that. And if she was, is she going to disqualify herself or not?

TOTENBERG: Not all ethics experts agree. Geoffrey Hazard of the University of Pennsylvania says that a careful lawyer wouldn't even supply the Senate with a list of issues she had worked on at the White House.

Professor GEOFFREY HAZARD (University of Pennsylvania): Even that's a question of executive privilege, and anything beyond that, in my participation, would be attorney-client privilege.

TOTENBERG: Hazard concedes, though, that taking such an uncooperative stance could cost the nominee votes. Nina Totenberg, NPR News, Washington.

SIEGEL: And you can read the documents that Harriet Miers gave to the Senate today at our Web site, npr.org.

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