Miers pressed for more data
The two senior members of the Senate Judiciary Committee on Wednesday asked Supreme Court nominee Harriet E. Miers to fill in a number of significant blanks she left Tuesday when she supplied answers to a lengthy Committee questionnaire. One request that could provoke a fight with the White House: much fuller detail of the constitutional issues she has handled as White House Counsel, a request that presidential aides may see as an inquiry into attorney-client matters. The letter also seeks to probe what White House aides may have done privately to assure outside groups of Miers’ views, in order to win their support for her nomination.
The letter by Chairman Arlen Specter, Pennsylvania Republican, and ranking Democrat Patrick Leahy of Vermont can be found here. It asked for responses by next Wednesday. The letter is courteous in tone, saying the answers she previously gave were “helpful.” But, the tone aside, it makes clear that the Committee’s leaders were not satisfied with many of her responses. It suggests she supply a “supplement to your responses, specifically addressing the areas outlined below with as much detail, particularity, and precision as possible.”
Separately on Wednesday, the Committee announced that hearings on Miers’ nomination will begin at noon on Monday, Nov. 7. They are expected to continue through the week. C-SPAN announced plans for video and Internet coverage.
In the Committee’s original questionnaire, Question 17 asked Miers to describe “in detail any cases or matters you addressed as an attorney or public official which involved constitutional questions.” It went on to spell out the kind of detail being sought. Miers’ entire response regarding her work as White House Counsel said:
“As Counsel to the President, I am regularly faced with issues involving constitutional questions. I am called upon to advise the President and White House officials on presidential prerogatives, the separation of powers, Executive authority, and the constitutionality of proposed regulations and statutes.”
One area of that work in which some Committee members are known to be interested is the role, if any, that Miers played in advising President Bush on his constitutional authority to use coercive measures, including perhaps some forms of torture, to get intelligence information from suspected terrorists.
The Committee leaders’ letter Wednesday told Miers:
“In answer to question 17, you explained that as Counsel to the President you are regularly faced with issues involving constitutional questions, but gave 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. 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 the Committee’s questionnaire, Miers was asked in Question 27 to discuss “from beginning to end” the circumstance leading to her nomination. Her responses were brief summaries of how she wound up with the nomination. The Committee also asked in that Question if anyone involved in selecting her ever discussed with her any matter that could be interpreted as seeking “any express or implied assurances” about her positions on issues. Her answer was a simple “No,” indicating there had been no such communications with her. It further asked whether any representations were made to any individuals or interest groups about how she might rule as a Justice. Again, her answer was “No,” indicating no representations were made.
The leaders’ new letter asked her to respond further, discussing “any and all communications, including those about which there have been recent press reports, in which friends and supporters of yours, among others, were said to have been asked by the White House to assure certain individuals about your views. If you do not have first-hand knowledge of these communications, please endeavor to determine what sorts of communications, if any, took place.” The “press reports” to which the senators referred apparently are those suggesting that White House, Republican Party aides and personal friends of hers had given assurances that her views were conservative, and that she did not support the Supreme Court’s abortion decision in Roe v. Wade.
The letter also asked Miers to go into more detail about “any categories of cases from which you plan to recuse yourself” if confirmed for the Court. In her questionnaire response, Miers had cited federal laws against conflicts of interests. The Committee leaders said they wanted her to address this question “specific to your situation.”
The senators also asked Miers to supply more detail about her temporary suspension from the D.C. Bar for non-payment of dues, information about civil lawsuits against her Dallas law firm, further information about questionnaires she filled out while running for the Dallas City Council (including, presumably, a questionnaire declaring her support for a constitutional amendment to ban abortion), and a list of all litigated matters in which she participated, going well beyond the selective list she supplied earlier.
I’m considerably less sympathetic to any arguments or assertion of Executive Privilege in this context because this whole situation came about voluntarily. The President (Miers’ client if you will) has nominated his counsel for this post. He could have nominated just about anyone he wanted to, and since he chose someone whose most significant work has been on his behalf … it’s not unreasonable at all (at least from my perspective) to see this nomination as constituting an implicit waiver.
Comment by yankee_mark — October 19, 2005 @ 9:39 pm
Still Not Convinced?
As of 9:50, David Frum’s petition asking President Bush to withdraw Harriet Miers had 5741 signatures. If you haven’t signed …
Comment by The Political Pit Bull — October 20, 2005 @ 11:44 am
There is no waiver of executive privilege, because there is no constitutional or legal requirement for Miers to answer any questions whatsoever.
Typically, a nominee is as cooperative as she believes necessary to ensure her confimation. If the President comes to realize that more openness will make the difference between confirmation and rejection, he will waive the privilege. As of now, the Chattering Class still believes Miers will be confirmed, if only barely, so there is no reason for the President to do so.
It is, of course, quite possible that a waiver would do Miers no good. Presidents receive a lot of advice that they do not heed, and it might be rather awkward if the public knew all of the ideas that are batted around in the White House, and ultimately not adopted as policy, particularly if Miers is the source of those ideas.
Comment by Marc Shepherd — October 20, 2005 @ 1:39 pm
The defenders of Miers’ nomination say that Miers is qualified. Essentially, they claim that she is a complex litigator with excellent case management skills, but not a constitutional scholar of the first order. The former is more relevant to adjudication, they say. Fine. Let us take the premise seriously. In that case, then, it seems the Senate should ask her questions related to complex litigation and case management, not obscure constitutional questions.
1. What does she think of Lon L. Fuller’s “The Forms and Limits of Adjudication”? Has she read it?
2. Does she have an understanding of comparative procedural systems in practice? For instance, what does she think of Mary Ann Glendon’s analysis of foreign legal systems in “Comparative Legal Traditions”?
3. What does she think of using preclusion rules as an alternative way to overcome joinder complexity? In particular, what does she think of Justice Rehnquist’s dissent in Parklane Hoisery Co. v. Shore?
4. How does the Due Process Clause figure in precluding persons that did not participate in a prior case? In particular, what is her opinion of Richards v. Jefferson County, Alabama, a SCOTUS case?
5. What does she think of preclusion after notice and opportunity to intervene, particularly in the context of reverse discrimination suits where consent decrees have already been entered? For example, Martin v. Wilks, another SCOTUS case? What is her opinion about Congress’ response to this case, with 42 U.S.C. sec. 2000e-2(n)?
6. What is her opinion of the Eleventh Amendment jurisprudence we have thus far? Does the text govern? How do we reconcile the text of the Eleventh Amendment and the subsequent jurisprudence? What is her opinion of the diverging approaches of doing so?
7. Is she concerned about the limitations on aggregation imposed by territorial jurisdiction? How, in her opinion, does this play into asbestos litigation? Does she have an opinion of In re Asbestos Litigation?
8. Does Strawbridge v. Curtiss announce a constitutional rule, or is the diversity required for diversity jurisdiction by the constitution broader or narrower than what is promulgated by that case?
9. When is it appropriate for judges to use the All Writs Act? Was the Terri Schiavo case an example?
10. Is compulsory consolidation in bakruptcy cases fair to litigants? Why or why not? Do litigants have a constitutional right to be masters of their own complaints?
11. What are relevant policy concerns of class actions? Discuss Hansberry v. Lee and In the Matter of Rhone-Poulenc Rorer Inc. In particular, is Judge Posner wrong? Why or why not?
12. Are there constitutional or jurisdictional limits on mandatory class actions? If they exist, how do they play into the case of In re Federal Skywalk Class? Was the outcome of that case justified? Why or why not? What conceptual framework would you use to decide that case today?
13. What is federal common law? How is it different from general common law in federal courts? Discuss In re Agent Orange.
14. You are on record as opposing judicial activism. Which judge is more activist in your view: Jack B. Weinstein or Edward Becker?
15. What is the proper use of a court’s remedial powers? Discuss Missouri v. Jenkins. In addition, what is the rightful position, and what are some common critiques of this analytical tool?
16. How much power should magistrate judges have in complex antitrust cases? How could overpowering magistrate judges possibly conflict with the guarantees of the 7th Amendment?
17. You have experience with antitrust law. Do you agree with the result in Topco? What could possibly be wrong with it?
Comment by Commentator — October 21, 2005 @ 12:35 pm