Senators on Miers' Decision to Withdraw Nomination

ROBERT SIEGEL, host:

Now reaction from both sides of the aisle in the Senate. Senator Jeff Sessions is an Alabama Republican and a member of the Senate Judiciary Committee.

Welcome to the program, Senator Sessions.

Senator JEFF SESSIONS (Republican, Alabama): Robert, good to be with you.

SIEGEL: Harriet Miers couched her withdrawal letter in the conflict of her White House documents and the separation of powers. If the Senate and the White House maintain their present positions, would, say, the nomination of Attorney General Gonzales be pointless right now because it would be dead on arrival given his service as White House counsel in the past?

Sen. SESSIONS: Well, it's a factor. There's no doubt that she was being pushed very hard, particularly since she had had no history of constitutional work and had done some constitutional work as White House counsel. So people were saying, `If these are her only constitutional work products, let's see them.' She knew they could not and would not be produced, so it did sort of bring to a head a number of things that had been developing out there.

SIEGEL: But if I hear you, you're saying that if there had been other positives, a more ample record of what Harriet Miers is all about, then the conflict over executive privilege might not have been decisive in this case, as far as you are concerned.

Sen. SESSIONS: Right. I've always felt the White House should not produce internal memoranda, but it is a little harder, I will admit, to defend that position when the nominee's only writings on perhaps--on constitutional questions were in that context.

SIEGEL: I'd like to hear your thoughts about a matter than Harriet Miers evidently stumbled over in or after her meeting with Chairman Arlen Specter and that involved Griswold vs. Connecticut and the right to privacy. It's a case that asserted the right of marital privacy against a state ban on contraceptives. First, do you think that the committee and the public, for that matter, have a right to hear whether a nominee to the Supreme Court acknowledges that right to privacy implicit in the Constitution?

Sen. SESSIONS: It just is up to the nominee. If they feel like that they are either unready or that it might in some ways compromise their ability in the future, they should not be drawn into personal views about whether the agree with a certain holding. It, in some ways, binds them perhaps in future decisions.

SIEGEL: But if someone told you, `Senator, I really can't tell you whether I support the halting of Brown vs. Board of Education,' I'd assume you would vote against that nominee, if you say, `I believe that there can be legal racial segregation in public schools.'

Sen. SESSIONS: Yes, I think that would be, as a practical matter, disqualifying. But those matters are not in dispute today. Some of the issues with regard to the reach of privacy are very much in dispute today. This `right of privacy' in the Constitution, as many find it to exist--just how broad is it? That is in dispute, and a good nominee might be reluctant to go into much detail about how they personally believe about one of those cases.

SIEGEL: Because it's a foundation of Roe vs. Wade that legalized abortion?

Sen. SESSIONS: Well, a foundation of--it is a part of Roe vs. Wade, and perhaps other cases also.

SIEGEL: One inference, from what you're saying and from what some conservative activists are saying this week, frankly, is that President Bush's refrain on Supreme Court nominees, `No litmus test,' is really inadequate for the day, that people want to get a clear enough picture of how a judge might rule, a justice might rule on the Supreme Court, so clear that, frankly, it amounts to a litmus test on issues such as abortion or school prayer.

Sen. SESSIONS: I think conservatives are concerned about the Supreme Court and they have, for a long time, believed that judges have utilized their positions to promote an agenda, for the most part one they don't agree with. But I think it's very important that we understand that conservatives should not expect a judge to promote their agenda.

SIEGEL: Before I let you go I want you to just quickly tick off a couple of attributes that you'd want to see in the nominee who will be named now for Sandra Day O'Connor's seat.

Sen. SESSIONS: At this point in time, I do believe that the American people want, and I would like to see, a person with rich constitutional experience who's dealt with it a great deal, and also one that supports the president's view that a nominee should decide the case before them and not to use decision-making as a way to promote an agenda. And if we do that, I think it will win the support of the American people and, ultimately, the support of the Senate.

SIEGEL: Senator Jeff Sessions, Republican of Alabama, thank you very much for talking with us.

Sen. SESSIONS: Thank you.

SIEGEL: Now the ranking minority member of the Judiciary Committee, the senior Democrat, that's Patrick Leahy of Vermont.

Welcome to the program once again, Senator Leahy.

Senator PATRICK LEAHY (Democrat, Vermont): Thank you.

SIEGEL: Senator Leahy, we heard from Jeff Sessions, Republican on Judiciary, that he wants to see somebody with a greater constitutional experience that people can scrutinize in the way of a nominee now to succeed Justice O'Connor. Do you agree?

Sen. LEAHY: Well, you know, I'd actually like to make my mind after a hearing. A lot of people prejudged Harriet Miers before she even had the opportunity to have a hearing. In this case, no Democrat had made a criticism of her. However, the ultra-right in the president's party seemed to have a vendetta to knock her out even before she had a chance to be heard in the judicial hearings.

SIEGEL: That's your understanding of what's happened, that it's not about executive privilege and it's not necessarily about Ms. Miers' resume, but the right didn't get what it wanted. That's your reading of what happened.

Sen. LEAHY: Oh, there's no question as to what it was. I mean, I understand the face-saving letters, that the White House--`We want to maintain our papers,' and all, but actually, just look back in the last few weeks in history, the White House held back similar papers from John Roberts' time there. We then asked questions and worked without the papers, but asked the questions we needed to ask and he got confirmed overwhelmingly.

SIEGEL: There are some names on the long speculative lists that are circulating today that are familiar to Senate Democrats: Priscilla Owen, Janice Rogers Brown are two of them. These are people whom Democrats and Republicans have gone to the mat over; your party against. What would happen if one of them were nominated to the Supreme Court?

Sen. LEAHY: Well, without going into any of these particular people, why have a nomination that is simply going to polarize the country, polarize the Senate and politicize the Supreme Court whichever way it comes out? Why not nominate any one of dozens of highly qualified people--women, Hispanics, African-Americans, men, others--who would get almost a unanimous vote? That would reflect the fact that the Supreme Court's there for all 280 million Americans.

Now I understand that some of the president's supporters feel the Supreme Court member should be there just for a small, ideological clique. Well, that's wrong if it's on the right or on the left. If the president really wants to help the court, if he wants to help his own presidency, if he wants to help the country, he'll come up with one of these people who unite us, not divide us.

SIEGEL: Tell me what you want to see in the next person he nominates.

Sen. LEAHY: I want, first and foremost, somebody who has the intellectual horsepower, is eminently qualified intellectually to be there. But then I also want to know that they're not an ideologue, that they would have an open mind. A lot of people in my party and on the left were opposed to John Roberts. I felt that he was intellectually extremely well-qualified, and even though philosophically he and I are much different, I felt that he would be independent in his thinking as cases came before him.

SIEGEL: Well, Senator Leahy, thank you very much for talking with us about today's developments.

Sen. LEAHY: Good to be with you.

SIEGEL: That's Senator Patrick Leahy of Vermont, Democrat and ranking minority member of the Senate Judiciary Committee.

MELISSA BLOCK (Host): You can find more reaction to the end of the Harriet Miers nomination and read her letter to President Bush at npr.org.

Copyright © 2005 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.