Harriet Miers Supreme Court Confirmation Hearings: Transcript
Washington, D.C., November 16, 2005 -- Following is the complete transcript of the Harriet Miers confirmations hearings held by the Senate Judiciary Committee November 7-15, 2005. Following the confirmation hearings a decision will be made by the Committee regarding whether or not to recommend Harriet Miers, a born-again former Texas lottery supervisor, to the full Senate for confirmation as Associate Justice of the United States Supreme Court.
The complete transcript follows:
Transcript begins -----
U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NOMINATION OF HARRIET MIERS TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT
U.S. SENATOR ARLEN SPECTER (R-PA), CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT), RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
WHITE HOUSE COUNCIL HARRIET MIERS, NOMINATED TO BE ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT
PRESIDENT BUSH, FRIEND AND CONFIDENT; RUPERT MURDOCH, MEDIA MAGNATE; CLARENCE THOMAS, ASSOCIATE JUSTICE; TOM DELAY, INDICTEE; SANDRA DAY O'CONNOR, ASSOCIATE JUSTICE; VARIOUS CAMEO APPEARANCES
MIERS' FAMILY INTRODUCTIONS
SPECTER: Good afternoon, ladies and gentlemen.
We begin these hearings on the confirmation of White House counsel Miers to be associate justice of the United States with first the introduction by White House counsel Miers of her beautiful family, and then a few administrative housekeeping details before we begin the opening statements, which will be 10 minutes in length, by each senator.
At the conclusion of the opening statements, we will then turn to the introductions by Judge Lugar, Judge Warner – my apologies, that should read Senator Lugar, Senator Warner and Senator Bayh, and then the administration of the oath to White House counsel Miers and her opening statement.
So, Miss Miers, if you would at this time introduce your family we would appreciate it.
MIERS: (OFF-MIKE) Umm. My family?
PRESIDENT BUSH: Go on, you can do it, Harry.
MIERS: I've always thought of the church as my family, Mr. President.
SPECTER: Senator Specter.
MIERS: Senator Specter. That's all the family I need. And they never leave dirty laundry on the floor.
SPECTER: Thank you very much, Miss Miers.
MIERS: Maybe never is an exaggeration.
SPECTER: White House counsel Miers had expressed her appreciation to have the introductions early. She said the maximum time of the church's staying power was five minutes. And that is certainly understandable. Thank you for doing that, Miss Miers.
INTRODUCTION BY SENATOR LEAHY
SPECTER: And now before beginning the opening statements, let me yield to my distinguished ranking member, Senator Leahy.
LEAHY: Well, Mr. Chairman, I want to thank you for all the consultations. I think we have had each other's home phones on speed dial, we've talked to each other so often. And I have every confidence our chairman will conduct a fair and thorough hearing.
LEAHY: No, really. You know, less than a quarter of those of us currently serving in the Senate have exercised the Senate's advice-and-consent responsibility in connection with a nomination to be chief justice of the United States. I think only 23 senators have actually been involved in that. That's fewer lawmakers than are currently under indictment under the current administration.
LEAHY: No, really. So I think this is really quite an awesome responsibility. We're fortunate a veteran of these proceedings is chairing this. We're at a time of great stress in our nation because of what has happened in New Orleans, throughout much of the Gulf Coast regions, the chimpanzee in the Oval Office.
PRESIDENT BUSH: Bite me, Leahy.
LEAHY: Anytime, Mr. President. I think the hearts and prayers of certainly my state of Vermont, but all Americans, are for those people. And I would hope that they understand while we're having these hearings, they're first and foremost in our thoughts and prayers.
And I'm sure they are with you, Miss Miers. And I expect you will need them.
LEAHY: This is the only time we're going to find out what she is, if we're lucky, and I don't expect we will be, and so all the more important that we have a good hearing.
Again, Mr. Chairman, I appreciate our meetings on this. Appreciate the meeting earlier this morning with you and Miss Miers. I think that you have set exactly the perfect tone for a hearing of this nature. Unscripted, frank, honest, partisan, vitriolic, and opaque. Now let's get ready to rumble.
SENATOR SPECTER, OPENING REMARKS
SPECTER: And now we'll begin the opening statements, as I said, of 10 minutes' duration.
This hearing, Miss Miers, is being held in the Senate Caucus Room, which has been the site of many historic hearings going back to 1912 with the sinking of the Titanic; 1923, Teapot Dome; 1954, Army McCarthy; 1973, Watergate; 1987, Iran-Contra. I don't think it would be appropriate to point out, with the phrase "culture of corruption" still popular in the press, that all of those scandals were perpetrated by Republicans. Even the Titanic. We've come a long way.
And this chamber still reverberates with the testimony of Judge Bork in 1987, another failed nomination, and… Do you smoke marijuana, Miss Miers?
MIERS: Not to my immediate current recollection at this time, to the best of my knowledge.
PRESIDENT BUSH: Good one, Harry!
SPECTER: We'll return to that later. And it still reverberates with the testimony of Justice Clarence Thomas and Professor Anita Hill in 1991. I think many of us still recall swallowing a little vomit when we heard the "pubic hair on the Coke can" story, and I'm sure you look forward to the chance to serve closely with Justice Thomas if your nomination should be confirmed.
THOMAS: Who's thirsty?
SPECTER: This is a very unique hearing, only the second one in 11 years in the Senate for a Supreme Court justice, and the Roberts hearing didn't really count. It was what we call a "by" hearing. We didn't want to find out who he was, he didn't tell us anything about who he was, and now the country will have fifty years to find out who he is, and I'm sure we're all looking forward to that.
SPECTER: And you would be, if confirmed, the least qualified justice in the history of the country, and I'm sure the President has every confidence in your abilities.
PRESIDENT BUSH: You go, girlfriend!
SPECTER: The committee respectfully requests the President to keep his trap shut.
PRESIDENT BUSH: Yay me!
SPECTER: Miss Miers, your prospective membership on the court, which could last until the year 2030 or longer – do you have any preexisting conditions, by the way? Uterine issues? Anything like that?
PRESIDENT BUSH: She's strong as a horse.
SPECTER: The committee will once again remind the President…
PRESIDENT BUSH: Whoo!
SPECTER: The senior justice now is Justice Stevens, a bleeding-heart liberal who is 85, and, and I think I speak for a number of my colleagues in the Senate Majority, one who could, with any luck, be frightened to death if we all pitch in and work together. Projecting ahead 25 years, that would take us to the year 2030 and would present a very unique opportunity for a new associate justice to slavishly follow the ideological path set by the ever-growing conservative phalanx of the court away from what many believe was once a deliberative body based on impassionate interpretation of the Constitution, a very old document, and to bring consensus to the court with the hallmark of the court being 5-4 decisions: a 5-4 decision this year allowing Texas to display the 10 Commandments; a 5-4 decision, turning Kentucky down from displaying the 10 Commandments; a 5-4 decision four years ago striking down a section of the Americans with Disabilities Act; and last year a 5-4 decision upholding the Americans for Disabilities Act on the same congressional record. We're hoping for 6-3, 7-2 decisions for the good guys from now on.
PRESIDENT BUSH: Damn right.
MIERS: Which ones are the good guys, again?
PRESIDENT BUSH (WHISPERING): Nohomo, nohomo.
MIERS: Oh yes. Excuse me.
SPECTER: Beyond your potential voice for change and consensus, your vote will be critical on many, many key issues, such as congressional power, presidential authority, civil rights, including voting rights and affirmative action, defendants' rights, prayer, many decisions for the future and perhaps institutional changes in the court looking for the day when the court may be televised.
RUPERT MURDOCH: Don't forget who owns the option.
SPECTER: Of course, Mr. Murdoch. This hearing comes at a time of turbulent partisanship in the United States Senate -- turbulent partisanship. Earlier this year, the Senate faced the possibility of a virtual meltdown with filibusters on one side of the aisle, and on the other side of the aisle the threat of the constitutional or nuclear confrontation. House Majority Leader DeLay actually carried a tactical nuclear weapon in his briefcase for several weeks. The man is a menace.
This committee, with the leadership of Senator Leahy, has moved to a bipartisan approach. As a consequence, House Majority Leader DeLay has been emailing poison snakes to my laptop, so I think we can all appreciate the gravity of these proceedings.
DELAY: Ssssssssssss. You're meat, Specter.
SPECTER: We had a prompt confirmation of the attorney general. We reported out bills which have become legislation after being stalled for many years on bankruptcy reform and class action, thereby screwing poor people and victims of corporate negligence to within an inch of their sad, pathetic little lives. We have confirmed contentious circuit court nominees, many of them actual sociopaths. We have reported out unanimously the Patriot Act, so promptly that we did not even read it. So it has been quite a period for this committee.
And now we face the biggest challenge of the year, perhaps the biggest challenge of the decade, in this confirmation proceeding. We all have a responsibility to ask probing questions to determine qualification beyond academic and professional standing, which, as we are all aware, is extremely weak in your case. Pathetic, really.
MIERS: Probing? I didn't know there was going to be probing.
PRESIDENT BUSH: Whoo!
SPECTER: Probing questions. Senators will have the right to ask whatever question they choose. And you, Miss Miers, have the prerogative to answer the questions as you see fit, or not to answer them as you see fit. Nudge.
MIERS: Which one was it again?
SPECTER: Or not to answer. Not. To answer as you see fit. It has been my judgment, after participating in ten -- this will be the eleventh for me, personally -- that nominees answer about as many questions as they think they have to in order to be confirmed. It's a subtle minuet. A pas de deux, if you will. A mise en scene. A trompe l'oeil. And it will be always a matter of great interest as to how we proceed.
I do not intend to ask you whether you will overrule Roe v. Wade. I already know the answer to that question. I will instead ask you whether you think the Constitution has a right of privacy, and I suggest that you answer, vaguely, that it does in some instances. And as I see I'm down to ten seconds and I intend to stop precisely on time and this committee has a record for maintaining that time. That's it.
MIERS: Thank you, Mr. Chairman.
SPECTER: I now yield to my distinguished colleague, Senator Leahy.
LEAHY: Well, thank you, Mr. Chairman. Again, thank you for the way you conducted this whole run-up to this hearing.
A few weeks ago, William Rehnquist passed away. Some of you may have seen the red lights in the sky over the area where minions of Satan were escorting his soul to perdition. He'd had 33 years of service on the Supreme Court. And many of us paid our respects for his service at the monumental building across the street in which he devoted himself to defending the independence of the federal judiciary by repeatedly defecating on the Constitution in pursuit of a vile partisan agenda.
I know, Miss Miers, that was a particularly difficult time for you because of your close relationship with him.
MIERS: Who are we talking about, again?
LEAHY: The late William Rehnquist.
MIERS: Wilhelm Rootcast?
LEAHY: The former Chief Justice. I thought of the facade of that court, with its marble from Vermont, and I think of how much our state served as a refuge for the chief justice, especially in the summer months when the mob would chase him with pitchforks.
Today, the devastation, despair facing millions of our fellow Americans in the Gulf region is a tragic reminder of why we have a federal government, why it's critical that our government be responsive. Why it may be a good idea to occasionally cut a vacation short when a city is under water. Why it may not be such a good idea to appoint failed horse judges to key emergency management positions.
We need the federal government for our protection and security, to cast a lifeline to those in distress, to mobilize better resources beyond the ability of any state and local government -- all of this for the common good.
And, Miss Miers, we've been given a great Constitution.
As you know as well as anybody here, it begins, "We…"
MIERS: (SINGSONG) "I pledge allegiance, to the flag, of…"
LEAHY: "…the people." That's the Pledge of Allegiance, Miss Miers. The Constitution reads, "We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
It's a framework for our government, the foundation of all our rights and liberties.
In these hearings, we're going to be discussing constitutional issues that may seem legalistic, but they're vital issues. They affect every one of us every day.
MIERS: How, again?
LEAHY: You'll see. When we discuss the Constitution's commerce clause or spending power, for example, we're asking about congressional authority to pass laws to ensure clean air and water and children's and seniors' health, and safe drugs, safe workplaces, even wetland protection, levees that should protect our communities from natural disasters. Such as the levees in New Orleans. The ones President Bush cut the funding for.
PRESIDENT BUSH: Bite me, Leahy.
SPECTER: The committee will respectfully remind…
PRESIDENT BUSH: Yee-ha!
LEAHY: Our constitutional values remain constant. We want to realize the American promise of fairness and equality and justice. Constitution: "We the people."
When the Constitution was written, though, "We the people" did not include Native Americans, or African-American slaves, but only free people.
BROWNBACK: Damn right.
LEAHY: It took more than fourscore years and a civil war before the Constitution was amended to include all citizens, all persons born and naturalized in the United States. Even then, half of the people didn't have one of democracy's defining rights: Women were not yet guaranteed the right to vote. That didn't happen until 1920.
BROWNBACK: Fucking shame.
LEAHY: And decades later, still it took a historic ruling, a unanimous ruling by the United States Supreme Court in the case of Brown v. Board of Education, and then landmark legislation by the federal government, for America to begin to provide a measure of equality to many who were held back for so long because, and only because, of the color of their skin.
I've long been a proponent of First Amendment freedoms and open government, because the public's right to know what our government is doing promotes accountability.
Federal Judges aren't elected, they serve for life if they're confirmed. The people never have the opportunity for effective oversight of their work. Ideological loose cannons like the late Chief Justice Rehnquist can spend decades spewing neo-fascist vitriol, and there's nothing anyone can do about it.
The judiciary is the most isolated branch of our government from public accountability, so this is the only opportunity to examine what kind of justice Miss Miers will dispense if promoted to the Supreme Court. This hearing is the only chance that we, the people, have to hear from and reflect on the suitability of the nominee to be a final arbiter of the meaning of the Constitution. Have you read the Constitution, Miss Miers?
MIERS: Working on it!
LEAHY: Good. This hearing is about the fundamental right of all Americans. If you're confirmed, you serve not just for the remaining three years of the Bush administration, but, God help us, you could serve through the administrations of the next seven or eight presidents. White House counsel Miers would be deciding matters that affect not only all Americans today, but also our children and our grandchildren. My children and grandchildren. Little Joey. Christ almighty. Excuse me, I feel a bit nauseous. I'm sorry. Mr. Chairman, there's time left over, but I've said all I think I can at this time.
SPECTER: Thank you very much, Senator Leahy, for your statement. Thank you for your leadership, and your leadership on observing the time so meticulously.
SENATOR HATCH, OPENING REMARKS
SPECTER: Senator Hatch?
HATCH: Well, thank you, Mr. Chairman.
I want to begin by saying that my thoughts and prayers are with the families of the late Chief Justice William Rehnquist and the late Justice Sandra Day O'Connor. He concluded…
SANDRA DAY O'CONNOR: I'm not dead, you ass. I'm retiring.
HATCH: Noted. He concluded his life on Earth just the way he lived it: bitching, moaning, and spitting on his fellow man. And I'm glad that his family was with him when he passed away. He was a good man and a great judge.
Miss Miers, the American Bar Association called me this morning asking me who the hell you were. I said that's what we're here today to find out. That's what the confirmation hearings are for. At least in your case.
Let me mention one example relating to my home state of Utah to show how the confirmation process has changed.
President Warren G. Harding, a truly great American and friend of the oil trade in the great tradition of our current president, nominated former Utah Senator George Sutherland to the Supreme Court on September 5, 1922. That same day, the Judiciary Committee chairman went straight to the Senate floor and, after a few remarks, made a motion to confirm the nomination. The Senate promptly and unanimously agreed. There was no inquisition, no fishing expedition, no scurrilous and false attack ads. Lee Atwater was just a baby back then, and his satanic love child Karl Rove hadn't even been born yet.
The judicial selection process, of course, has changed because what some political forces want judges to do has changed from what America's founders established.
America's founders believed that separating the branches of government, with the legislatures making the law and the judiciary interpreting and applying the law, is the linchpin of limited government and liberty. James Madison said that no political truth has greater intrinsic value.
Quoting the philosopher Montesquieu, Alexander Hamilton wrote in the Federalist, number 78, that, quote, "There is no liberty if the power of judging be not separated from the legislative and executive powers," unquote.
MIERS: Will Montyskew and Hamilton be here later? They sound interesting.
HATCH: No, Miss Miers. They're dead. Well, times have changed. Today, some see the separation of powers not as a condition for liberty but as an obstacle to their own political agenda.
When they lose in the legislature, they want the judiciary to give them another bite at the political apple. Another squeeze at the political teat. Politicizing the judiciary leads to politicizing judicial selection. And we all know how damaging that can be if you're not the one making the judicial appointments. Luckily, lately we've been the ones doing that, so this isn't really relevant. Think of it as a little historical background.
The confirmation process has sometimes been -- it seems to me -- unbecoming of the Senate and disrespectful of nominees. I applaud President Bush for supporting this trend and for nominating unqualified men and women who, as judges, will legislate from the bench.
You're a perfect example of that. You will, if confirmed, naturally legislate from the bench. And you'll legislate the way we want you to legislate.
PRESIDENT BUSH: That's right.
HATCH: With that in mind, I believe that there are three facts that should guide us in this hearing.
First, what judges do limits what judicial nominees may discuss. Judges must be impartial and independent. Their very oath of office requires impartiality and the canons of judicial ethics prohibit judges and judicial nominees from making commitments regarding issues that may come before them. I'll be the first to admit that senators want answers to a great many questions. But I also have to admit that a senator's desire to know something is not the only consideration on the table.
Some have said the nominees who do not spill their guts about whatever a senator wants to know are hiding something from the American people. Some compare a nominee's refusal to violate his judicial oath or abandon judicial ethics to taking the Fifth Amendment.
These might be catchy sound bytes, but they are patently false.
That notion misleads the American people about what judges do and slanders good and honorable nominees who want to be both responsive to senators and protect their impartiality and independence.
SPECTER: What's your point, Hatch?
HATCH: I'm getting to it, Arlen. Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues. In summary, Miss Miers, what we want to hear from you are vague platitudes invoking the gravity of the constitution, but we don't want to receive any indication as to how you might interpret that document. Do you understand? Platitudes. No indication. Mum's the word.
We have a great deal of respect for you. Well, some respect. You have good taste in pant suits, says my wife. We expect you to make a reasonably adequate justice who'll vote the party line, like Thomas over there. And I just want to congratulate you on your nomination. Don't spill the beans.
SPECTER: Thank you. Thank you very much, Senator Hatch.
SENATOR KENNEDY, OPENING REMARKS
SPECTER: Senator Kennedy?
KENNEDY: Thank you very much, Mr. Chairman.
Miss Miers, I join in welcoming you and your family to this committee and to this famous room, the site of so many historic hearings. We've had the opportunity to observe backroom politics and cronyism at its smarmiest here on so many occasions, and this is no exception.
As we are all aware, the Senate's actions on this nomination are profoundly important. It's a defining opportunity to consider the values that make our nation strong and just and how to implement them more effectively, especially the guiding principle of more than two centuries of our history that we are all created equal.
PRESIDENT BUSH: (SNICKERS)
KENNEDY: Our commitment to this founding principle is especially relevant today. Americans are united, as rarely before, in compassion and generosity for our fellow citizens whose lives have been devastated by Hurricanes Katrina, Rita and Wilma. The powerful winds and flood waters tore away the mask that has hidden from public view the many Americans who are left out and left behind. As one nation under God, we cannot continue to ignore the injustice, the inequality and the gross disparities that exist in our society.
SESSIONS: Oh, for God's sake.
KENNEDY: Stuff it, Sessions. Across the years, we've experienced times of great turmoil and great triumph as each succeeding generation struggled to live up to our founding principle and give it meaning for everyone.
Americans have shed blood, campaigned and marched. They have worked in countless quiet ways as well to see that every one of our citizens is part of our democracy and has an equal opportunity for a good education, a good job and a good life.
PRESIDENT BUSH: Yeah. I was a C student, and look at me now.
SPECTER: The committee will respectfully…
PRESIDENT BUSH: Whoo-ya.
KENNEDY: Today, grandparents who were denied the right to vote expect their grandsons and granddaughters to be able to cast a ballot without discrimination or intimidation. And our society is better because of that progress.
Too many have sacrificed too much, worked too hard, come too far to turn back the clock on that progress.
Every citizen counts. And we must continue to remove barriers that hold back millions of our people. And we must draw strength from our diversity as we compete in a new world of promise and peril.
So the central issue before us in these hearings is whether the Supreme Court will preserve the gains of the past and protect the rights that are indispensable to a modern, more competitive, more equal America.
MIERS: That's no, right?
PRESIDENT BUSH: Not yet, Harry.
MIERS: Oh, sorry.
KENNEDY: Commitment to equality for all is not only a matter of fairness and conscience; it's also our path to sustained national strength and purpose.
We also are a government of the people in which citizens have a strong voice in the great issues that shape our lives.
Our systems of checks and balances was drawn up in full awareness of the principle that absolute power corrupts absolutely and was designed to make sure that no branch of government becomes so powerful that it can avoid accountability.
PRESIDENT BUSH: Sore loser.
KENNEDY: The people have a right to know that their government is promoting their interests, not the special interests.
PRESIDENT BUSH: (SNICKERS)
KENNEDY: When it comes to the price of gasoline and the safety of prescription drugs, the air we breathe and the water we drink and the food and other products we buy, the people have a right to keep government from intruding into their private lives and most personal decisions.
But the tragedy of Katrina shows in the starkest terms why every American needs an effective national government that will step in to meet urgent needs that individual states and communities cannot meet on their own.
MICHAEL BROWN: Kiss my ass, tubs. I did a heckuva job.
KENNEDY: Of course you did, Brownie. Above all, the people and their Congress must have a voice in decisions that determine the safety of our country and the integrity of our individual rights.
We expect Supreme Court justices to uphold those rights and the rule of times in both war and peace.
Miss Miers, President Bush claims you are an intelligent, well-educated and serious woman. Given the President's successes hitherto as a judge of character, I think you can understand why we all have some doubts as to the validity of that assessment.
PRESIDENT BUSH: She thinks I'm the most brilliant man on earth. What more do you need?
KENNEDY: These qualities are surely important qualifications for a potential Supreme Court justice, but they do not end the inquiry of our responsibility. This committee and the full Senate must also determine whether you have demonstrated a commitment to the constitutional principles that have been so vital in advancing fairness, decency and equal opportunity in our society.
MIERS: The what-now principles?
KENNEDY: Constitutional principles. You are familiar with the Constitution, Miss Miers?
MIERS: Working on it!
KENNEDY: We have only one chance to get it right and a solemn obligation to do so. If you're confirmed, you could serve on the court for a generation or more and the decisions you make as a justice will have a direct impact on the lives of our children and our grandchildren and our great-grandchildren. My children and grandchildren, and my great-grandchildren. Excuse my, I'm feeling a bit nauseous. I surrender the remainder of my time.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Kennedy.
SENATOR GRASSLEY, OPENING REMARKS
SPECTER: Senator Grassley?
GRASSLEY: Miss Miers, I welcome you and congratulate you on your nomination.
I think it's fitting that you have been nominated to replace a mentor of yours, Associate Justice Sandra Day O'Connor. You obviously have a tough act to follow.
MIERS: Was she the blond one?
GRASSLEY: Yes. And that's because Sandra Day O'Connor was a fine Supreme Court justice and a fine woman. We will all miss her, and deeply regret her passing.
SANDRA DAY O'CONNOR: I'm right here, you dipshit.
GRASSLEY: May she rest in peace. Miss Miers, we had a good personal meeting in my office a little over a month ago. And based on our discussions and what I've reviewed, you appear to be extremely well-qualified. I, for one, would trust you with my life, and I'd trust you with my wife.
BARBARA GRASSLEY: Blow me, Chuck.
GRASSLEY: Not now, honey. At our meeting, Miss Miers, I was encouraged by your respect for the limited role of the courts as an institution in our democratic society. And I look forward to asking more questions about your record and qualifications, as well as your judicial approach.
There are a number of qualities that I look for in a Supreme Court nominee. I believe that the nominee should be someone who knows he or she is not appointed to impose his or her views of what's right or wrong. The nominee should be someone who knows he or she is appointed to impose our views of what's right or wrong. As Chief Justice Marshall said over 200 years ago, the duty of the judge is to say what the law is, not what it ought to be.
If we confirm a nominee who is all of this, none of us saints on the political right or devils on the political left will be disappointed because it will mean in the end that the people, through their elected representatives, will be in charge.
If we confirm individuals who are bent on assigning to themselves the power to fix society's problems as they see fit, a bare majority of these nine unelected and unaccountable men and women will usurp the power of the people, hijacking democracy to serve their own political prejudices. And I think we've seen this happening for some time now, and I know many of us have been just tickled pink with the result.
During my tenure in the Senate, I participated in a number of these Supreme Court nomination hearings, and I believe it's ten to date. I'm hopeful that we will see a dignified confirmation process that will not degenerate into what we saw during the Bork and Thomas hearings. Rather, we need to see the same level of civility as we saw during the O'Connor, Ginsburg and Breyer hearings. Of course, neither O'Connor, Ginsburg, nor Breyer were radical drug-addled lunatics or semi-demented sexual harassers, so the choice of nominee obviously plays a part as well.
THOMAS: Anyone here like Seinfeld?
GRASSLEY: Moreover, I'm hoping that we won't see a badgering of the nominee about how she'll rule on specific cases and possible issues that will or may come before the Supreme Court. That has been the practice, as you know, in the past. Shameful. Ignominious.
And let me remind my colleagues that Justices Ginsburg and Breyer refused to answer questions on how they would rule on cases during their confirmation hearings.
In other words, to paraphrase the words of my honorable colleague Senator Hatch, loose lips sink ships.
The fact is that no senator has a right to insist on his or her own issue-by-issue philosophy or seek commitments from nominees on specific litmus-test questions likely to come before that court. To do so is to give in to the liberal interest groups that only want justices who will do their political bidding from the bench regardless of what is required by the law and the Constitution. Instead, what we want to do is to satisfy the conservative interest groups who only want justices who will do their political bidding from the bench regardless of what is required by the law and the Constitution, and that's why we're all here today. And I'm sure you'll make a fine justice when confirmed, one we can be proud of and rely on for generations to come.
Mr. Chairman, I surrender the remainder of my time.
SPECTER: Thank you very much, Senator Grassley.
SENATOR BIDEN, OPENING REMARKS
SPECTER: Senator Biden?
BIDEN: Thank you, Mr. Chairman.
Miss Miers, welcome.
Miss Miers, as you know, there's a genuine intellectual debate going on in our country today over whether the Constitution is going to continue to expand the protections of the right to privacy, continue to empower the federal government to protect the powerless.
MIERS: Come again?
BIDEN: I'll explain more later. Anyway, it's a big debate. All you got to do is turn to any web site: American Enterprise Institute, left, right, center. It's a gigantic debate. Hadn't occurred, as you and I both know, and my colleagues know, in the last 70 years. It has not been this contentious; not just the politics but the debate, the intellectual debate.
For 70 years, there's been a consensus, Miss Miers, on our Supreme Court on these issues of privacy and protecting the powerless. And this consensus has been fully, fully embraced, in my view, by the American people.
But there are those who strongly disagree with the consensus, as is their right. And they seek to unravel the consensus.
And, Miss Miers, you are in the unenviable position, as we talked about in my office, of being right in the middle of this fundamentally important debate.
And quite frankly, Miss Miers, we need to know on which side of that divide you stand, for whoever replaces Justice O'Connor will play a pivotal role in this debate and for tens of millions of the American people, this is no academic exercise.
MIERS: Thank God.
PRESIDENT BUSH: Amen. I was a C student.
BIDEN: Thank you, Mr. President. We know. Miss Miers, the position you will take in this debate will affect their lives in very real and personal ways for at least, God forbid, the next three decades. And there is nothing they can do about it after this moment. Good heavens. Three decades. Urp. Mr. Chairman, I must apologize. I believe I am currently suffering from an unexpected bowel emergency, and I surrender the remainder of my time.
I thank you.
SPECTER: Thank you, Senator Biden.
SENATOR KYL, OPENING REMARKS
SPECTER: Senator Kyl?
KYL: Thank you, Mr. Chairman.
Before discussing Miss Miers' nomination, I would like to take a moment to express my respect and admiration for the great justice whom she will be replacing on the Supreme Court, the late Sandra Day O'Connor, who began her career as…
SANDRA DAY O'CONNOR: I'm not dead, you freaking idiot. What is it with these people?
KYL: Point taken. Justice O'Connor provided an important swing vote position on the court, often offering the deciding vote on contentious issues divided along strictly partisan party lines. We mourn her loss, and offer her family our deepest condolences.
SANDRA DAY O'CONNOR: Jesus.
KYL: Now, in spite of the fact that she is not from Arizona, White House counsel Miers clearly is eminently qualified to serve as associate justice of the United States Supreme Court. Enough has already been said about her credentials that I will not catalog them here.
PRESIDENT BUSH: Great lady! Good heart! Important religious!
KYL: I thank the president for reiterating Miss Miers' credentials. Now, the principal matter that I would like to address today is the proper scope of this committee's questioning of the nominee.
With all due respect to my colleagues, the seat on the Supreme Court is not a political -- let alone a legislative -- office, and not every question that a senator might think of is legitimate.
This committee's precedents, the rules of judicial ethics and a sound respect for the unique role of the federal judiciary in our society all counsel in favor of some basic limits on the types of questions that a senator should ask of a judicial nominee.
Most importantly, it is not appropriate for a senator to demand a nominee's view on issues that are likely to come before the court. This standard was reiterated four years ago by the late Lloyd Cutler, White House counsel to former Democratic Presidents Carter and Clinton, two presidents who have always been treated with the deepest respect and impartiality by the majority members of this committee.
In a hearing before this committee on the subject of the Senate's role in evaluating judicial nominees, Mr. Cutler stated quite clearly what the proper limits are.
And I quote: "Reviewers must refrain from asking candidates for particular pre-commitments about unresolved cases or issues that may come before them as judges."
To summarize, and I think I may speak for several of my colleagues, less is more. A picture is worth a thousand words, and if you can paint a picture of what we'd like to hear in as few words as possible, we'd like to see it. I've always favored abstract expressionism, myself.
MIERS: Abstract the what-now?
KYL: Yes. Let me quote the rule: "Has anyone" -- or the question, rather: "Has anyone involved in the process of selecting you as a judicial nominee, including, but not limited to any member of the White House staff, the Justice Department or the Senate or its staff, discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any expressed or implied assurances concerning your position on such case, issue or question?"
Now, White House counsel Miers answered in the negative to that question, and I think it would be ironic indeed if the committee were now to demand that the nominee take stands on questions that may come before her as a member of the court.
MIERS: Oh. I think I may have misunderstood the question.
PRESIDENT BUSH: Harry.
KYL: Now, not only would it violate this committee's standards and procedures for a nominee to answer questions about issues that may come before her as a judge, it would also be unethical for the nominee to answer such questions. Ethics, as you know, are supremely important to the majority party, and I feel it would be unfair for a few bad apples like our former Majority Leader to provide the impression that the whole barrel is spoiled.
DELAY: Sssssssssss. You're meat, Kyl.
KYL: Urp. Some have argued that nominees cannot talk about cases, but that they can still talk about issues. Well, the code of judicial ethics draws no such distinctions. The code of judicial ethics says that you can talk about nothing at all beyond the greatness of the country, the interesting typography of the Constitution—and isn't it beautiful? They had penmanship back then, it's really a shame how standards have slipped.
And with that, I believe my time is up.
SPECTER: Actually, Senator Kyl, you have over eight minutes remaining.
KYL: Well, in any event, I believe that is all I have to say, and I thank you, Mr. Chairman. Keep it zipped, Miss Miers.
SPECTER: Thank you very much, Senator Kyl.
SENATOR FEINSTEIN, OPENING REMARKS
SPECTER: Senator Feinstein?
FEINSTEIN: Thank you very much, Mr. Chairman.
Good afternoon, White House counsel Miers and … I'm sorry. Is that a sock puppet?
MIERS: I call him Dubby. He is my friend and companion. Say howdy, Dubby.
SOCK PUPPET: Howdy!
FEINSTEIN: Good afternoon, then, Miss Miers and … Dubby. This must be a moment of enormous pride for you. And I hope that despite the toughness of this hearing, you really realize that this family member of yours may soon be taking over the position of an associate justice at a time of unique division and polarization in this country. And so many of us are going to be pressing her to see if she has got what we think it takes to do this.
SOCK PUPPET: (FALSETTO) Oh no!
FEINSTEIN: Miss Miers, thank you very much. We spent a very interesting hour together. I came away from it feeling that you're certainly mediocre, marginally qualified at best, and loyal to President Bush to the point of neurotic obsession, and I don't think there's a question about that.
But as we take a look at you, 60 years old, to be associate justice of the Supreme Court, I think it's really essential for us to try to determine whether you can be the kind of justice that can generate consensus, find compromise and, above all, really embody the mainstream of American legal thinking.
MIERS: Sure, just tell me what to do and I'll do it.
PRESIDENT BUSH: Harry! Not her.
PRESIDENT BUSH: No. Me.
MIERS: I apologize. May my previous remark be stricken from the record?
SPECTER: I'm afraid not.
FEINSTEIN: If I may continue. For me, the most important thing is to see that an associate justice really cares about the fact that justice is provided to all Americans. It's been said here before, but it's really important -- young and old, rich and poor, powerful and unpowerful, all races, creeds, colors, et cetera.
MIERS: What's a creed? Like Apollo?
FEINSTEIN: It's code for religion. The court's going to consider some very critical cases: the standard of review for abortion cases; the health of the mother; the constitutionality of an Oregon law which permits physician-assisted suicide for terminally ill but legally competent individuals;
MIERS: Oh, I'm dead set against all that.
PRESIDENT BUSH: Sssshhhhhhh! Harry.
MIERS: I'm sorry, I wasn't listening. You were saying?
FEINSTEIN: …whether two oil industry leaders and competitors can be allowed to work together to fix the price of gas once they've entered into a joint venture;
MIERS: Sounds fine to me.
FEINSTEIN: …in addition, the rights of enemy combatants; the so-called partial birth abortion law; whether Congress has the authority to protect our nation's environment through legislation. These are enormous macro questions that you're going to be right in the middle of as a pivotal force.
Chief Justice Rehnquist, I believe, will be remembered for applying a much more restrictive interpretation of the Constitution which has limited the role of Congress. In recent years, the court has adopted a politically conservative states' rights view of several constitutional provisions.
As a result, congressional authority to enact important legislation has been significantly curtailed.
If you, Miss Miers, subscribe the Rehnquist court's restrictive interpretation of Congress's ability to legislate, the impact could be enormous. It would severely restrict the ability of a Congress to tackle nationwide issues that the American people have actually elected us to address.
MIERS: That's why I'm here, isn't it? Dubby?
PRESIDENT BUSH: You go, girl.
SOCK PUPPET: Jibber jibber joink!
FEINSTEIN: Now, as the only woman on this committee, I believe I have an additional role in evaluating nominees for the Supreme Court, and that is to see if the hard-earned autonomy of women is protected.
MIERS: Dubby likes to call me his extra wife.
FEINSTEIN: Like any population, women enjoy diverse opinions, beliefs, political affiliations, priorities and values. And we share a history of having to fight for many of the rights and opportunities that young American women now take so much for granted. I think they don't really recall that during the early years of the United States, women actually had very few rights and privileges. In most states, women were not allowed to enter into contracts, to act as executor of an estate. They had limited inheritance and child custody rights.
It actually wasn't until 1839 that a woman could own property separate from her husband, when Mississippi passed the Married Women's Property Act.
It wasn't until the 19th century that women began working outside their homes in large numbers. Most often, women were employed as teachers or nurses, and in textile mills and garment shops.
As women entered into the workforce, we had to fight our way into nontraditional fields: medicine, law, business, and yes, even politics.
The American Medical Association was founded in 1846. But it barred women for 69 years from membership, until 1915.
AMERICAN MEDICAL ASSOCIATION: Christ, the amount of bitching and moaning we have to deal with now.
FEINSTEIN: The American Bar Association was founded in 1876, but it barred women and did not admit them until 1918. That's 42 years later.
AMERICAN BAR ASSOCIATION: What the AMA said. And PMS.
FEINSTEIN: With the retirement of Justice Sandra Day O'Connor, the court loses the important perspective she brought as a woman and the deciding vote in a number of critical cases.
For me -- and I said this to you privately, and I'll say more about it in my time on questions -- one of the most important issues that needs to be addressed by you is the constitutional right to privacy.
MIERS: That's the abortion thing, right? I'm against that.
PRESIDENT BUSH: Not yet, Harry!
MIERS: I'm sorry, my mind was wandering. You were saying, Mrs. Finkleburg?
FEINSTEIN: Senator Feinstein. I'm concerned by a trend on the court to limit this right and thereby to curtail the autonomy that we have fought for and achieved; in this case, over just simply controlling our own reproductive system rather than having some politicians do it for us.
It would be very difficult -- and I said this to you privately and I said it publicly -- for me to vote to confirm someone whom I knew would overturn Roe v. Wade, because I remember -- and many of the young women here don't -- what it was like when abortion was illegal in America.
As a college student at Stanford, I watched the passing of the plate to collect money so a young woman could go to Tijuana for a back-alley abortion. I knew a young woman who killed herself because she was pregnant.
And in the 1960s then, as a member of the California Women's Board of Terms and Parole, when California had what was called the indeterminant sentence law, I actually sentenced women who committed abortions to prison terms.
FEINSTEIN: I saw the morbidity. I saw the injuries they caused. And I don't want to go back to those days.
BROWNBACK: Sure you do. Let's all say it together.
FEINSTEIN: How the court decides future cases could determine whether both the beginning of life and the end of life decisions remain private, or whether individuals could be subject to government intrusion or perhaps the risk of prison.
And I will be looking to understand your views on the constitutional provision for providing for the separation of church and state -- once again, history.
MIERS: It's one nation under God, isn't it? Says so right in the declaration of independence.
FEINSTEIN: Again, that is in the Pledge of Allegiance, and only since the 1950s. To continue: for centuries, individuals have been persecuted for their religious beliefs.
During the Roman Empire, the Middle Ages, the Reformation, and even today, millions of innocent people have been killed or tortured because of their religion.
A week ago, I was walking up the Danube River in Budapest when I saw on the shore 60 pair of shoes covered in copper -- women's shoes, men's shoes, small tiny children's shoes. They lined the bank of the river.
My time is already up? May I just finish this one paragraph?
FEINSTEIN: During World War II, it turned out that Hungarian fascists and Nazi soldiers forced thousands of Jews, including men, women and children, to remove their shoes before shooting them and letting their bodies float down the Danube.
These shoes represent a powerful symbol of how religion has been used in catastrophic ways historically.
The rest of my comments we'll have to wait for.
Thank you very much, Mr. Chairman.
SPECTER: Thank you very much, Senator Feinstein.
SENATOR SESSIONS, OPENING REMARKS
SPECTER: Senator Sessions?
SESSIONS: Thank you, Mr. Chairman.
SESSIONS: And, Miss Miers, recalling the words of former Senator Alan Simpson when Justice Scalia was here, "Welcome to the pit."
SCALIA: I dig the pit. Oil me up.
SESSIONS: Congratulations on your nomination. You're not one of our nation's premier lawyers, but I, for one, will not hold that against you. No one ever called you the finest lawyer of your generation, and no one ever will. But the president says he has faith in you, and frankly that's good enough for me.
But as you have already seen, our confirmation process is not a pretty site. Time and again, you will have your legal positions, your predecisional memoranda -- even as a young lawyer -- distorted or taken out of context. Luckily for all of us, you haven't made any legal decisions to speak of, so we'll all be spared the indignity of that spectacle.
The American commitment to the rule of law is one of our most exceptional characteristics as a people. It is the foundation of our liberties and our productive economic system. It is a product of centuries of development. That is why we are all so excited about this unprecedented opportunity to hijack it with complete impunity. This is a once-in-a-lifetime chance, Miss Miers, and I hope you will live up the expectations many of us have for you.
In his magnificent speech in March of 1775 in the House of Commons, urging King George not to go to war against the colonies, Edmund Burke described America's commitment to the rule of law by saying, "In no country perhaps in the world is the law so general a study," adding, "I hear they may have sold as many of Blackstone's commentaries on the law in America as in England."
MIERS: I thought George was the president.
SESSIONS: I mean the other King George. Back in 1775. Today, many believe the law does not have an inherent moral power and that words do not have and cannot have fixed meaning. Like chair. Is a bar stool a chair? What about a Barcalounger? I think you can agree these are two different things, even though they are described by the same word. Judges do not have the luxury of liberally interpreting words in this way to reach the results a judge believes is correct.
If, for example, a constitutional amendment, and I'm quoting the second amendment here, states that, quote, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed", end quote, then that means private citizens in Georgia and Kentucky have an inalienable right to carry a concealed M-16 with them to church. And we can't have activist Supreme Court judges overturning cherished principles like these.
While many advocates on the left and the right would like a court that promotes their agenda, I do not want that. And neither do the American people. I want a court that will only promote the agenda of the right, and I think I speak for many of my distinguished colleagues on that matter.
What we must have -- what our legal system demands -- is a fair and unbiased umpire, one who calls the game according to the existing rules, and by the existing rules I mean our rules, and does so competently and honestly every day, no matter how it may defy the fundamental expression and purpose of the Constitution.
This is the American ideal of law. Ideals are important because they form the goals to which we all strive. Ideals such as keeping gays from marrying each other. Ideals such as keeping businesses free to poison our water without fear of being bankrupted in frivolous class-action suits.
SESSIONS: We must never abandon our ideal of unbiased judges, judges who rule fairly without regard to politics. But what we need now are biased ones, ones who will rule unfairly in support of right-wing positions, for at least the next three decades. I hope and pray you will be one of these judges.
I look forward to participating in the hearing with you and congratulate you on being nominated to the position, and with that I conclude my opening remarks.
SPECTER: Thank you very much, Senator Sessions.
SENATOR FEINGOLD, OPENING REMARKS
SPECTER: Senator Feingold?
FEINGOLD: Mr. Chairman, thank you.
And, Miss Miers, welcome. Welcome to you and your entire, er… family. Welcome, sock puppet.
SOCK PUPPET: Woof!
FEINGOLD: First I want to say, Mr. Chairman, how much I appreciate the even-handed way that you and Senator Leahy have approached the preparations for the hearing.
Miss Miers, I also want to thank you in advance for the long hours you will put in with us this week. I wish you well, and I truly do admire your record and your career, only not very much.
This is a confirmation proceeding, however, not a coronation. It is a Senate Judiciary Committee's job to ask tough questions. We are tasked by the Senate with getting a complete picture of your qualifications, your temperament and how you will carry out your duties.
Obviously, nominees to the Supreme Court must be subject to the highest level of scrutiny. So as the nominee to be the chief justice of the United States, you will be subject to the ultimate level of scrutiny.
PRESIDENT BUSH: Whoo!
FEINGOLD: Yes. Probing questions. Our colleagues in the Senate and the citizens of this country are entitled to a hearing that will actually help them decide whether you should be confirmed.
And I'm sure you understand that.
This is a lifetime appointment to become a justice of the Supreme Court.
So I'm sure -- I'm sure -- you appreciate the importance of this hearing for the future of our country.
Some have called for a dignified process. So have I.
But at times it sounds like what some really want for the nominee is an easy process. That is not what the Constitution or the traditions of the Senate call for.
If by dignified they mean that tough and probing questions are out-of-bounds, I must strongly disagree.
This process is not a game. It is not a political contest. It is one of the most important things that the Senate does: confirm or reject nominees to the highest court in the land. And we as senators must take that responsibility very seriously.
In fact, I was struck, as I was preparing for this hearing, by remarks years ago written by my friend and colleague, Senator Grassley from Iowa and a senior member of this committee, in the committee report on the nomination of Justice O'Connor. The current nomination for associate justice makes his remarks even more apt.
Senator Grassley said the following: "I do not agree that commenting on past Supreme Court decisions is a commitment to hold a certain way on future cases. And I feel that in order that we as senators fulfill our duty, it is incumbent on us to discover a nominee's judicial philosophy.
"In that we had a very limited number of judicial opinions rendered by Justice O'Connor on constitutional questions, it was my hope," Senator Grassley said, "by asking specific questions regarding past Supreme Court decisions that the committee might obtain a clear understanding of her philosophy.
"My purpose was to satisfy my questions regarding Justice O'Connor's record in that I felt it was less than complete than many other Supreme Court nominees who have had extensive experience either on the federal bench or in leadership positions in the profession of law."
FEINGOLD: In some ways, Mr. Chairman, the record of our current nominee to the court raises similar questions. We have little in the way of her own writings on the issues before the court to evaluate.
So, like Senator Grassley, I am interested in this nominee's views on a number of cases. I don't think that getting her reaction to those decisions will commit her to vote in a certain way in a future case. After all, it is not that past case she will be deciding, but a different one.
The impact of this nominee in our country, should she be confirmed, will be enormous. That means our scrutiny of this nominee must be intense and thorough.
In my view, we must evaluate not only her qualifications, but also her ability to keep an open mind, her sensitivity to the concerns of all Americans and their right to equal protection under the laws; not only her intellectual capacity, which we are given to understand is barely average, but her judgment and wisdom; not only her achievements, which as we know are highly limited in scope, but her fairness and her courage to stand up to the other branches of government when they infringe on the rights and liberties of our citizens.
But, Miss Miers, I look forward to the opportunity to question you.
And I thank you, Mr. Chairman, again for the opportunity to speak today.
SPECTER: Thank you very much, Senator Feingold.
We will take a 15-minute break and Senator Graham will be recognized for his opening statement at 2:15.
SENATOR GRAHAM, OPENING REMARKS
SPECTER: It's 2:15 and we will resume our opening statements.
Senator Graham, you are recognized for your opening statement.
GRAHAM: Thank you, Mr. Chairman. Thanks for the seventh inning stretch, too. We all very much appreciate it. I, for one, used the opportunity to enjoy a quick wank in the men's room, and am now feeling very relaxed and refreshed, so I thank you once again.
GRAHAM: Miss Miers, playing a little bit off of what my colleague Senator Feingold said, I don't think we expect you to be easy. You expect this to be easy, that is. And having to listen to 18 senators proves the fact that it's not going to be easy.
And Senator Kennedy said something that I disagree with, but he's very passionate in his statement. He said the central issue is whether or not you will embrace policies, a certain set of policies, or whether or not you will roll back certain policy decisions.
I respectfully disagree with Senator Kennedy. To me, the central issue before the Senate is whether or not the Senate will allow President Bush to fulfill his campaign promise to appoint a well-qualified, strict constructionist to the Supreme Court and, in this case, to appoint an associate justice to the Supreme Court in the mold of Justice Scalia.
He's been elected president twice.
PRESIDENT CARTER: No, he wasn't.
PRESIDENT BUSH: Nyah, nyah, nyah.
GRAHAM: He has not hidden from the public what his view of a Supreme Court justice should be and the philosophy that they should embrace.
In my opinion, by picking you, he has lived up to his end of the bargain with the American people by choosing a well-qualified, strict constructionist.
MIERS: I used to own apartment buildings, but I haven't actually done any construction.
GRAHAM: In any event. You have been described as brilliant, talented and well-qualified, and that's by President Bush. So we are of course taking that assessment with several grains of salt. The question is, is that enough in 2005 to get confirmed? Maybe not.
And with that, I conclude my opening remarks. God bless you and your family. And your sock puppet.
SPECTER: Thank you very much, Senator Graham.
SENATOR SCHUMER, OPENING REMARKS
SPECTER: Senator Schumer ?
SCHUMER: Thank you, Mr. Chairman.
Miss Miers, I join my colleagues in congratulating you on your nomination to the position of associate justice of the United States. Now, this is indisputably the rarest opportunity in American government. But the responsibility is as great as the opportunity is rare.
As a nominee to the high court, you have the potential to wield more influence over the lives of the citizens of this country than any jurist in history.
And bearing that in mind, I'm afraid I must excuse myself. I appear to have been suddenly stricken with acute peritonitis.
EMERGENCY MEDICAL TECHNICIAN: Clear!
SCHUMER: Ouch. I surrender the remainder of my time.
SPECTER: Thank you, Senator Schumer.
SENATOR BROWNBACK, OPENING REMARKS
SPECTER: I recognize now Senator Brownback.
BROWNBACK: Thank you.
Miss Miers, as one of my colleagues was just saying, I hope we're done before hell freezes over. And frankly, given the reluctance on your part to unequivocally state your opposition to Roe v Wade and to publicly avow your determination to overturn it at the first available opportunity, I hereby surrender the remainder of my time, as I view any further participation in the process to be distasteful.
My ass, Miss Miers, is more likely to perform an aria from Puccini than I am to cast my vote in favor of your nomination.
God bless you and your family, including your stupid puppet.
SOCK PUPPET: Dickhead.
SPECTER: Thank you, Senator Brownback.
THE SWEARING IN & OPENING REMARKS OF MISS MIERS
SPECTER: Miss Miers, if you'd now resume your position at center stage.
Miss Miers, if you would now stand, please. The protocol calls for your swearing in at this point. We have 23 photographers -- well, five more waiting. Please put down the sock puppet. We may revise our procedures to swear you in at the start of the proceeding, if you should come back.
If you would raise your right hand, and they've asked me to do this slowly, because this is their one photo op. The sock puppet, Miss Miers, thank you.
Do you solemnly swear that the testimony you will give before this Committee on the Judiciary of the United States Senate will be the truth, the whole truth and nothing but the truth, so help you God?
MIERS: What was the middle thing?
SPECTER: The whole truth.
MIERS: Darn tootin'.
SPECTER: Thank you. And you may be seated.
Now, Miss Miers, we compliment you on your patience of listening to 21 speeches. And the floor is now yours.
MIERS: Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.
Let me begin by thanking all the senators and nice people for their warm and generous introductions. And let me reiterate my thanks to the president for nominating me. Thanks a million, hubby-dubby.
PRESIDENT BUSH: You know it, shoogy-woogy.
MIERS: I'm humbled by his confidence and, if confirmed, I will do everything I can to be worthy of the high trust he has placed in me. Really.
I know that I would not be here today were it not for the sacrifices and help over the years by my boss, President Bush. He's been my star, my savior, my guiding light. I don't know what I'd do without him. Probably be back at that damn lottery commission.
Judges are like lottery commissioners. Lottery commissioners don't buy the tickets; they award the money when somebody wins. It's always extra special when someone wins who's bet the birthdays of their children and family.
The role of a lottery commissioner is critical. They make sure everybody has an even chance.
But it is a limited role. Nobody ever bought a lottery ticket to see the lottery commissioner. And the chances are the same for everybody. If you buy two tickets, you have twice the chance of winning as if you bought only one. If you can afford to buy a thousand tickets, your chances are a thousand times better. And that's the law of free enterprise, and it's what makes America such a great country.
Mr. Chairman, when I worked in the lottery commission, it was my job to make sure everyone who could afford to could buy those thousand tickets, and to make sure that those poor bastards who could only afford one would still really believe they had a chance of making it.
I always found it very moving to stand before some poor sucker who won $30 after playing their welfare check for years, and say "Here you go. Now get the hell out of my office."
Mr. Chairman, I come before the committee with no agenda. President Bush told me he will fax it over after I get confirmed, and I'm told Justices Scalia and Thomas already have a copy.
Justices are not politicians who can promise to do certain things in exchange for votes. That's why I've made all of my promises in private. And Mr. Chairman, if confirmed, I swear I will stick by them. The only thing I have to offer is my integrity.
Thank you, Mr. Chairman.
Thank you, members of the committee.
I look forward to your questions.
SPECTER: Thank you very much, Miss Miers, for that very profound statement.
We will stand in recess until 9:30 tomorrow morning, when we will reconvene in the Hart Senate Office Building, Room 216.
That concludes our hearing.
END OF DAY 1
DAY 2 - SPEAKERS & WITNESSES
U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NOMINATION OF HARRIET MIERS TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT
U.S. SENATOR ARLEN SPECTER (R-PA), CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR PATRICK J. LEAHY (D-VT), RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
WITNESSES: WHITE HOUSE COUNSEL MIERS, NOMINATED TO BE ASSOCIATE JUSTICE OF THE UNITED STATES
A WOMAN'S RIGHT TO CHOOSE & ROE VS. WADE
SPECTER: It is 9:30. The confirmation hearing of White House counsel Miers will now proceed.
Welcome, again, Miss Miers.
MIERS: Thank you, Mr. Chairman.
SPECTER: We begin the first round of questioning in order of seniority, with 30 minutes allotted to each senator.
Miss Miers, there are many subjects of enormous importance that you will be asked about in this confirmation hearing, but I start with the central issue which perhaps concerns most Americans, and that is the issue of the woman's right to choose and Roe v. Wade.
And I begin collaterally with the issue of stare decisis and the issue of precedence.
MIERS: You begin now how with the who?
SPECTER: Collaterally with stare decisis. Black's Law Dictionary defines stare decisis as, Let the decision stand, to adhere to precedence and not unsettle things which are established. Justice Scalia articulated, quote, The principal purpose of stare decisis is to protect reliance interest and further stability in the law.
SPECTER: Justice Frankfurter articulated the principle, quote…
PRESIDENT BUSH: Heh. What'd Justice Hamburger say?
SPECTER: Shut up, Mr. President. We recognize that stare decisis embodies an important social policy that represents an element of continuity in law and is rooted in the psychological need to satisfy reasonable expectations. Would you agree with those articulations of the principles of stare decisis, as you had contemplated them, as you said you looked for stability in the law?
SPECTER: Would you like more time to consider your response?
SOCK PUPPET: We're in the shit, Harry.
SPECTER: Why don't we return to that later, Miss Miers. I move now to Casey v. Planned Parenthood. And I want to get right to the core of the issue. In Casey, the key test on following precedents moved to the extent of reliance by the people on the precedent. And Casey had this to say in a rather earthy way: People have ordered their thinking and living around Roe. To eliminate the issue of reliance, one would need to limit cognizable reliance to specific instances of sexual activity.
MIERS: I think the Constitution is our most important legal document establishing the fundamental rights of citizens of the United States. It is very old. I understand it is printed on hemp, which can also be used to make rope.
SPECTER: But there's no doctrinal basis erosion in Roe, is there?
MIERS: Excuse me, may I visit the powder room?
SPECTER: The committee recognizes Miss Miers' right to a brief interlude, and we will recess for five minutes.
MIERS: Thank you.
FIVE MINUTE RECESS
SPECTER: This committee is reconvened. Miss Miers?
MIERS: Well, I feel the need to stay away from a discussion of particular cases. I'm happy to discuss the principles of stare decisis. And the court has developed a series of precedents on precedent, if you will. They have even developed cases of precedent on precedent involving a president.
PRESIDENT BUSH: Was that me?
MIERS: I don't know. They have a number of cases talking about how this principle should be applied. And as you emphasized, in Casey, they focused on settled expectations. They also looked at the workability and the erosion of precedents. The erosion of precedents, I think, figured more prominently in the courts discussion in the Lawrence case, for example. But it is one of the factors that is looked at on the other side of the balance.
SPECTER: Well, do you see any erosion of precedent as to Roe?
MIERS: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again. Shouldn't I, Dubby?
PRESIDENT BUSH: Darn tootin'.
SPECTER: Well, Miss Miers, I don't know that we're dealing with any specific issue. When you mention — and you brought that term up, erosion of precedent, whether you see that as a factor in the application of stare decisis or expectations, for example, on the citation I quoted from Casey v. Planned Parenthood.
MIERS: I'm sorry, may I be excused to visit the powder room?
SPECTER: Really, Miss Miers…
MIERS: Well, fine then.
SOCK PUPPET: (SNEEZING) Asshole!
MIERS: Well, in the particular case of Roe, I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions. And I'm reluctant to do that. That's one of the areas where I think prior nominees have drawn the line when it comes to, Do you agree with this case or do you agree with that case? And that's something that I'm going to have to draw the line in the sand. Right, Dubby?
PRESIDENT BUSH: Right in the sand, baby.
SPECTER: Miss Miers, in your responses to a 1989 survey by a group called Texans United for Life, you replied Yes to the question, and I quote, "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to protect the death of the mother, would you actively support its ratification by the Texas Legislature?" According to your response on this questionnaire, you would support a constitutional amendment that would prohibit abortion even in cases of rape or incest. Do you still hold these opinions, or do you now consider it a matter of constitutional law to be determined with due attention to precedent?
SPECTER: Miss Miers?
MIERS: I agree with that, Senator. Yes.
SPECTER: With what, exactly?
MIERS: Yes. And I think people's personal views on this issue derive from a number of sources. And there's nothing in my personal views based on faith or other sources that would prevent me from using the Constitution to help me determine which lottery ticket is the winning ticket. It's all about odds. Everyone has an even chance.
SPECTER: So that the views that you expressed back in 1989 may not be the views you'd express today?
MIERS: Well, yaw and hee. What's upside down and turned around you can still read in a mirror if you look at it from the right angle. It has a lot to do with flexibility. Have you met the President's dog, Barney? He's cute as a button.
SPECTER: Miss Miers, I'm afraid I fail to see the relevance…
MIERS: You should play horseshoes with Barney. He loves horseshoes. And that's all I'm going to say about that.
SPECTER: Very well, Miss Miers. With respect to going back again to the import of Roe and the passage of time, Supreme Court Chief Justice Rehnquist changed his views on Miranda. In the 1974 case, Michigan v. Tucker, which I'm sure you're familiar with, he did not apply Miranda — without going into the technical reason there. But the issue came back to the court in U.S. v. Dickerson in the year 2000. And the chief justice decided that Miranda should be upheld, and he used this language: that it became, quote, so embedded in routine police practice to the point where the warnings have become a part of our national culture, close quote. Do you think that that kind of a principle would be applicable to a woman's right to choose as embodied in Roe v. Wade?
MIERS: I wonder if the President likes cats. Do you like cats, Dubby?
PRESIDENT BUSH: Not a lot. Make me sneeze. I could learn to like 'em, I guess.
SOCK PUPPET: At-choo!
SPECTER: Well, that's rather like the analogy I'm looking for in Roe v. Wade. One might disagree with it at the time it was decided, but then one can talk about it becoming embedded in routine practices to the point where it has become a part of our national culture. And the question, by analogy: Whether a woman's right to choose is so embedded that it's become a part of our national culture; what do you think?
MIERS: Someone told me that they eat cats in Africa. In Guatemala, I think.
SOCK PUPPET: Yuck!
PRESIDENT BUSH: Makin' me sneeze, just talking about 'em.
SPECTER: With all due respect, Miss Miers, I believe you are evading the issue.
MIERS: May I be excused for a moment?
SPECTER: Fuck this. You're a complete nincompoop, and I surrender the remainder of my time.
LEAHY: Thank you, Mr. Chairman.
Good morning, Miss Miers.
MIERS: Good morning.
LEAHY: You look like you survived well yesterday.
MIERS: It's the Maybelline miracle!
LEAHY: So, Miss Miers. No one doubts you've had a very unimpressive legal career thus far. And now you've been nominated to be associate justice of the United States.
MIERS: It's just a treat, isn't it? I love having powerful friends.
LEAHY: Yes, it is. But I have concerns, as I go back over your career — and we've had some discussions of this already — about some of the themes in your career, some of the goals you sought to achieve using what is at best limited skill. Apparently you have let your law license expire on at least two occasions due to non-payment of bar association dues.
MIERS: I know, I know. Silly old me. I'm just not much of a detail person.
LEAHY: But President Bush has assured the American public repeatedly that you are a detail-oriented person.
MIERS: Yes, I'm very detail-oriented.
LEAHY: Miss Miers, a moment ago you told us you were not detail-oriented.
MIERS: I most certainly did not.
LEAHY: Yes you did, Miss Miers.
MIERS: Well, I'm sure not going to be expected to remember every little thing I said.
LEAHY: Miss Miers, be that as it may, can you explain these lapses, these failures to pay your bar association dues, thus rendering yourself legally unable to practice law in both Texas and Washington, D.C.?
MIERS: Those are just mean and vicious lies concocted by a liberal media who is out to discredit me for my religious beliefs.
LEAHY: Miss Miers, the allegations are part of both Texas and Washington, D.C. bar association records.
MIERS: Says they.
LEAHY: Miss Miers. All right, we'll move on. In the past, based on the slim record of your opinions we've been able to put together, you have suggested on at least one occasion that Congress is powerless to stop a president who is going to conduct an unauthorized war. I really find that extremely hard to follow. And I imagine most Americans would. I'll give you a hypothetical. Congress passes a law for all U.S. forces to be withdrawn from the territory of a foreign nation by a set date. The president vetoes the law. The Congress overrides that, sets into law, You must withdraw by a certain date. Now, is there any question in your mind that the president would be bound to faithfully execute that law?
MIERS: Which president?
LEAHY: Any president.
MIERS: President Bush?
LEAHY: Yes, for the sake of argument we can say President Bush.
MIERS: Then yes, I agree totally.
LEAHY: I'm sorry?
LEAHY: I'm not entirely sure we understand each other, Miss Miers.
MIERS: It all depends.
SOCK PUPPET: Praise be.
LEAHY: I mean, isn't this kind of hornbook law? I don't know of any cases coming before the court; I mean, this is kind of hornbook. The Congress says to the president, You got to get out, and pass a law which is either signed into law by the president or you override a presidential veto. Why wouldn't the president have to — charged as he is under the Constitution to faithfully execute the law, why wouldn't he have to follow that law?
MIERS: Which law was that again?
LEAHY: The law… Miss Miers, have you been following this argument?
MIERS: With President Bush? Yes, I absolutely disagree. Certainly arguments could be made on either side about the president's authority. And that may well come before the court.
LEAHY: Miss Miers, with all due respect, the hypothetical cases to which I am referring are not based on a specific law passed by Congress.
SOCK PUPPET: I think I may need a bathroom break.
PRESIDENT BUSH: Me, too. Is that possible?
LEAHY: Mr. Chairman, I do not believe there is anything further to be gained from this dialogue, and I hereby surrender the remainder of my time.
SPECTER: Thank you very much, Senator Leahy.
HATCH: Well, thank you, Mr. Chairman. I'm happy to be here. And I appreciate your leadership — you and Senator Leahy — on this committee.
Welcome you, again, Miss Miers, and appreciate…
MIERS: Thank you.
HATCH: And I read an interesting book over the weekend, Cass Sunstein's recent book published by Basic Books.
MIERS: Is that the one about the origami animals?
MIERS: I think the penguin is really cute. Did you know they are monogamous? Even the gay ones.
SENATOR RICK SANTORUM: What the hell?
MIERS: I mean, the monogamous heterosexual penguins like to feed the gay ones to the walruses, who are also heterosexual monogamous role model animals. Right, Dubby?
PRESIDENT BUSH: How the hell would I know?
SENATOR RICK SANTORUM: That's more like it.
HATCH: Miss Miers, in the book I mentioned, Mr. Sunstein discussed various philosophies with regard to judging. And I just would like to ask you this question: Some of the philosophies he discussed were whether a judge should be an originalist…
MIERS: That's what I said, an origamist.
HATCH: …a strict constructionist, a fundamentalist, perfectionist, a majoritarian or minimalist — which of those categories do you fit in?
MIERS: What was the middle one?
HATCH: Which middle one?
MIERS: Any one.
MIERS: I didn't have a chance to read Mr. Sunstein's book yet, but I will as soon as I'm done with this Constitution thing. He writes a different one every week; it's hard to keep up with him.
But, you know, I think…
HATCH: I've read a number of them.
MIERS: Like most people, I resist the labels. I have told people, when pressed, that I prefer to be known as Modest Miss Miers. And, to me, that means some of the things that you talked about in those other labels. It means an appreciation that the role of Modest Miss Miers is limited; Modest Miss Miers is to decide the cases before her, not to legislate. I'm not here to make the laws. That's the president's job, to make the laws.
HATCH: Actually, Miss Miers, that is the primary role of Congress.
MIERS: Right, so Modest Miss Miers isn't here to make the laws, just to interpolate them. If you have a law that needs interpolating, I'm your woman, right Dubby?
PRESIDENT BUSH: Darn straight.
HATCH: But am I correct in interpreting that you are probably eclectic, that you would take whatever is the correct way of judging out of each one of those provisions? There may be truths in each one of those positions, and none of them absolutely creates an absolute way of judging.
MIERS: Well, I have said I do not have an overarching judicial philosophy that I bring to every case. And I think that's true.
MIERS: I tend to look at the cases from the bottom up rather than the top down. And I think a good Modest Miss Miers will focus a lot on the facts. We talk about the law, and that's real interesting for all of us. Have you read this Constitution thing? "I pledge allegiance…"
HATCH: Thank you, Miss Miers. If we could move on. Now, Judge Breyer has said that Planned Parenthood v. Casey, very important case, reaffirmed Roe. But let me just ask you this: Am I correct that Casey reaffirmed the central holding in Roe but substantially changed its framework?
MIERS: Was this Casey as in at the bat, or K.C. as in Sunshine Band?
MIERS: I just want to be sure who I'm talking about. I'm very detail-oriented.
HATCH: At the bat.
MIERS: That's what I thought. The Sunshine band name isn't really a name, just initials.
MIERS: Isn't it?
HATCH: Let's move on. Miss Miers, the bulk of your experience has been either as a corporate lawyer, as a lottery commissioner, and in your current role in the White House as President Bush's personal attorney. In contrast, I would note that Justice Breyer brought to the court his experience as chief counsel to this committee. As many commentators noted during the oral arguments of the sentencing guidelines case, Justice Breyer seemed more than willing to defend congressional prerogatives. Now, what can you tell us to assure the committee that your lack of experience in working in the legislative branch of government might contribute to a lack of deference to federal statutes as you review those federal statutes on the bench?
MIERS: I have a good heart. My heart's in the right place, and I love my country.
HATCH: That's it?
MIERS: I bake. I bake a mean popover. And I have real strong religious beliefs.
HATCH: Very well. Thank you, Miss Miers. You know, our time is almost gone. We've talked about a lot of substantive things in this half hour. In the few minutes we have left, please describe some of the pro bono work you have done, why those particular projects are important to you and what you believe your efforts accomplished.
HATCH: Pro bono work. You know, the unremunerated work that lawyers traditionally perform in addition to their paid services. Work to help those in need of legal counsel who may not be able to afford the high cost of remuneration.
MIERS: Oh, that. Well, every Wednesday I would take ten lottery tickets from our Scratch 'n' Sniff box, the ones with the $10 maximum winnings, and throw them right out the window. There were nearly always some poor people down there, and I'd throw the tickets right out the window so they'd land near the poor people. And that's my probobo work.
PRESIDENT BUSH: I'm real proud of you, Harry.
MIERS: Thank you, Dubby.
HATCH: Well, thank you, Miss Miers. I see my time is up.
Thanks, Mr. Chairman.
SPECTER: Thank you, Senator Hatch.
KENNEDY: Thank you, Mr. Chairman.
That Street Law program is a marvelous program. I commend you for your involvement in that.
MIERS: Thank you, Mr. Kennedy. It's such an honor to be talking to such a legendary president.
KENNEDY: Miss Miers?
MIERS: Is it true about Marilyn Monroe? Wasn't she a dream-boat?
KENNEDY: That was my brother, Miss Miers. President John F. Kennedy.
MIERS: Oh, right. Whatever happened to him?
KENNEDY: He's dead, Miss Miers. Now…
MIERS: Oh, I'm so sorry to hear that. You must feel awful.
KENNEDY: Thank you kindly, Miss Miers. Now…
MIERS: He was very handsome.
KENNEDY: Yes, thank you. Miss Miers, the stark and tragic images of human suffering in the aftermath of Hurricane Katrina have reminded us yet again that civil rights and equal rights are still the great unfinished business of America.
The suffering has been disproportionately borne by the weak, the poor, the elderly and infirm, and largely African-Americans, who were forced by poverty, illness, unequal opportunity to stay behind and bear the brunt of the storm's winds and floods.
I believe that kind of disparate impact is morally wrong in this, the richest country in the world.
One question we must consider today is how we can take action to unify our nation, heal racial division, end poverty and give real-life meaning to the constitutional mandate that there be equal protection under law.
Miss Miers, today we want to find out how you view the Constitution, our ability to protect the most vulnerable.
Do you believe that Congress has the power to pass laws aimed at eliminating discrimination in our society? Or do you believe that our hands are tied, that the elected representatives of the people of the United States are without the power to pass laws aimed at righting wrongs, ending injustice, eliminating the inequalities that we have just witnessed so dramatically and tragically in New Orleans?
MIERS: Yes, I do believe that.
KENNEDY: Which part?
MIERS: The whole thing. I believe it in my heart, so strongly. Jesus saves.
KENNEDY: So do you agree with the court's conclusion that the segregation of children in public schools solely on the basis of race was unconstitutional?
KENNEDY: When what?
MIERS: (SINGING) I'm a little teapot, short and stout.
KENNEDY: Miss Miers, are you aware that Brown was a unanimous decision?
MIERS: I thought he resigned. Well, that's what they said, to make it look better in the press, but I do believe you're right, they all wanted him fired. Someone had to take the blame. But look, he's back at full salary anyway, so everyone's happy and his pride just got a little hurt.
KENNEDY: Miss Miers, what are you talking about?
MIERS: Brownie. That poor man. Dubby thought he did a heckuva job.
MICHAEL BROWN: Fuckin' A.
KENNEDY: Miss Miers, we're discussing the important Brown v Board of Education decision, one of the most important civil rights rulings ever made in this country. In that decision, the court also held that it was important to look at the effects of segregation on public education. The court determined that education was so vital to a child's development and an opportunity for advancement in society that, where the state had undertaken to provide public education, it must be available to all on equal terms. Thus, it found that the separate education was inherently unequal.
MIERS: What if the schools were just as nice?
KENNEDY: So it's fair for me to conclude you accept neither the holding and the reasoning in the Brown case.
MIERS: I don't really know yet. I'll have to put my thinking cap on.
PRESIDENT BUSH: That's what I'd do.
KENNEDY: Very well. If we could move on. Now, the Brown decision was just the beginning of the historic march for progress toward equal rights for all of our citizens.
In the '60s and '70s, we came together as a Congress, Republicans and Democrats alike, and passed the historic civil rights legislation that signed by the president to guarantee equality for all citizens on the basis of race, then on gender, then on disability.
We passed legislation to eliminate the barriers to voting that so many minorities had faced in too many states in the country. We passed legislation that prevented racial discrimination in housing.
Those landmark laws were supported by Republicans and Democrats in Congress and they were signed into law by both Republican and Democratic presidents.
Every one of the new laws was tested in court, all the way to the Supreme Court.
And I'd like to find out, Miss Miers, whether you'd agree that the progress we made in civil rights over the past 50 years is irreversible.
MIERS: Oh, nothing's irreversible except the grand act of creation by the Lord our God. And even that will come to an end. Maybe sooner than you think!
PRESIDENT BUSH: I'm ready.
MIERS: I packed an extra blanket for you, Dubby. Anyway, I'm cautious, of course, about expressing an opinion on a matter that might come before the court. I don't think that's one that's likely to come before the court. So I'm not aware of any questions that have been raised concerning that, Senator.
KENNEDY: So I'll assume that you don't feel that there are any doubts on the constitutionality of the ‘64 act. Do you have any doubts as to the constitutionality of the ‘65 Voting Rights Act?
MIERS: That was the one about voting, right? In 1965?
MIERS: No, I have no opinions regarding doubt one way or the other on the constitutionality then.
KENNEDY: Miss Miers, I'm just trying to find out, on the Voting Rights Act, whether you have any problem at all and trouble at all in terms of the constitutionality of the existing Voting Rights Act that was extended by the Congress.
MIERS: Oh. Well, the existing Voting Rights Act. I think someone said the constitutionality has been upheld. And I don't have any issue with that. Unless we decide not to uphold it any more. And then I'd have to put my thinking cap on again.
MIERS: Well, Senator, if you disagree…
KENNEDY: And what …
SPECTER: Let her finish her answer.
MIERS: I was finished.
KENNEDY: Mr. Chairman, I believe I will reserve my right to continue this line of questioning in the next round, and now surrender the remainder of my time.
SPECTER: Thank you very much, Senator Kennedy.
This is a good time for a 15-minute break.
SPECTER: We will reconvene our hearing. We will take three more rounds of questions so that we will go until approximately — there will be two more rounds of questions to 12:45, and we will then break for lunch. Senator Grassley?
GRASSLEY: Miss Miers, for a second time, I would congratulate you and your family, I'm sorry, your sock puppet, on your nomination. I would also, for a second time, thank you for the time you spent in my office for me to talk privately with you several weeks ago.
I'm impressed by your record, your public service. Obviously, you demonstrate your intellect very well. And we ought to be satisfied with that.
So I believe, with everything we have seen demonstrated, you're obviously as qualified a nominee as I have seen in the 24 years that I have been on this committee.
GRASSLEY: In addition, I want to thank you for a great deal of candor you have in answering questions and giving information. The Judiciary Committee has received from you or from agencies that you have been affiliated with, several of the documents on your record. Two documents. One, unfortunately, was illegible.
And we all have combed through the other document, the dry cleaning list, that you have offered to assess your qualifications to the Supreme Court.
So, Miss Miers, beyond your lottery analogy, what do you understand to be the role of a judge in a Democratic society?
And, before you respond, I would like your reaction of a quote from Justice Cardozo on the nature of the judicial process.
And he said this, not paraphrasing but direct quote: The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not knight errant, roaming at will in pursuit of his own ideal of beauty or goodness. He is not to yield to spasmodic sentiment, to vague or unrated benevolence. He is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life — wide enough in all conscience is the field of discretion that remains.
And so Miss Miers, to reiterate, what do you understand to be the role of a judge in a Democratic society?
MIERS: Well, Mr. Grassey, I think I would answer the question you so eloquently put to me as in the following manner. The judge, even when he is free, is still not holy. He is not too inundated with pleasures. He does not run night errands, roaming at will in pursuance of his own ideal good beauties. He is a spasmodic sediment, a vague unrated benefactor. He is to exercise discretely by tradition, mentholated by analysis, like systematic disciples, and his subordinates are primordial necessities of social order, and wide enough in for all of a conscience field discretion remains. Does that answer your question?
GRASSLEY: Thank you, Miss Miers. That is very nicely put. And with that, I believe I have concluded my questioning.
Thank you, Mr. Chairman.
SPECTER: Mr. Biden?
BIDEN: Thank you, Mr. Chairman.
Miss Miers, look, I want to try to cut through some stuff here, if I can. I said yesterday this shouldn't be a game of Gotcha, you know. We shouldn't be playing a game. The folks have a right to know what you think. You're there for life. They don't get to — this is the democratic moment. They don't get a chance to say, You know, I wish I'd known that about that guy. I would have picked up the phone and called my senator and said, ‘Vote no,' or, ‘vote yes.' Whichever.
MIERS: I'm an open book. Crack me open and read me, I'm not shy.
BIDEN: Thank you, Miss Miers. And so what I'd like to do is stick with your analogy a little bit, because everybody's used it: lottery tickets. By the way, to continue that metaphor, you won the Powerball yesterday. I mean, everybody — I got home and I got on the train and people saying, Oh, she likes lotteries, huh? Seriously. The conductors, people on the train. And it's an apt metaphor, because you just sell the tickets and distribute the cash, and everyone has the same chances.
But as you well know, I'd like to explore that philosophy a little bit, because you got asked that question by Senator Hatch about what is your philosophy, and the lottery metaphor is used again.
As you know, in lotteries, they have a rule. If you scratch off the little verification code thingy, the ticket is invalid. Even if it's a winning ticket, you still won't get your money if the validation code has been scratched off and revealed.
But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution define the validation code. And what you'll be doing is scratching off the validation codes for everybody in America, so we can find out if our ticket's valid, if it's the winning ticket.
And the same thing prevails for a lot of other parts of the Constitution. The one that we're all talking about — and everybody here, it wouldn't matter what we said, from left, right and center — is concerned about the liberty clause of the Fourteenth Amendment.
MIERS: Which one is that, again?
BIDEN: It's the one about liberty. You can look it up later. What I'd like to hear from you now is, your opinion on--Miss Miers, you're going to be a lottery commissioner, not a lottery ticket salesman. You won't be making the tickets, just scratching off the validation code to see if they're valid. Every justice has to scratch.
So I want to try to figure out how you scratch. I want to figure out how you go about this. And so let me get right to it. And I want to use the Ginsburg rule. I notice Ginsburg is quoted. I'm quoted all the time about Ginsburg: Miss Miers, you don't have to answer that question.
I might point out that Justice Ginsburg, and I submit this for the record, commented specifically on 27 cases, 27 specific cases.
I will just speak to a couple of them here.
SPECTER: Without objection, it will be made part of the record.
BIDEN: I thank you very much.
Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that — not what said law is — what do you think?
Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?
MIERS: Well, that is in an area where I think I should not respond because…
BIDEN: Why? You said you'd abide by the Ginsburg rule?
MIERS: Which Ginsburg was that again?
BIDEN: Justice Ginsburg.
MIERS: No, I don't feel obligated to not abide by the ruling Justice Ginsburg decided should be avoided or not, depending on the situation.
BIDEN: Well, she obviously didn't adhere to it with regard…
MIERS: Well, I explained why she felt at liberty to comment…
BIDEN: Well, how's that different?
MIERS: Well, that's how Justice Ginsburg explained it at her nomination hearings, I'm told. She said she could talk about the issues on which she had written. I haven't written anything, so obviously I don't have anything to talk about. I like a good massage. Did you ever go to a Swedish masseuse? They're the best.
BIDEN: Justice Ginsburg answered the question. She never wrote about it. She answered it specifically. You're not applying the Ginsburg rule.
SPECTER: Senator Biden, let her finish.
MIERS: I was just asking about masseuses. Are there any good ones around here? We had one that came to the White House. He had such cool hands.
BIDEN: I don't have much time...
MIERS: That's all.
SPECTER: Mr. Biden, I'm sorry but your time is up.
BIDEN: Thanks, Miss Miers.
MIERS: Thank you, Senator.
SPECTER: Thank you very much, Senator Biden.
We will recess now until 2:15.PM
SPECTER: We will resume the confirmation hearing.
I'd been asked to delay by two minutes the starting time so that the electronic media could make appropriate introductions, and then I've also been told that my watch is a minute fast, so we're going to correct all those miscues. Do we have enough tape left in the tape recorder? We want to be sure there's plenty of tape.
TECHNICAL SUPPORT: Yep, plenty.
SPECTER: Very well then, we are now reconvened.
For 30 minutes, Senator Kyl?
THE REMAINDER OF THE SENATE JUDICIARY HEARINGS FROM THIS POINT ON WERE UNFORTUNATELY LOST DUE TO TAPE RECORDER FAILURE. WITNESSES WHO HAD THE OPPORTUNITY TO OBSERVE THE REMAINDER OF THE PROCEEDINGS, HOWEVER, DESCRIBE THE UNFORTUNATE LOSS AS "OF MARGINAL IMPORT".
LATER INVESTIGATION RETURNED THE FOLLOWING FRAGMENT OF DIALOGUE FROM DAY FOUR OF THE PROCEEDINGS, AS CAPTURED ON CHAIRMAN SPECTER'S MOBILE PHONE. TERMED THE "EXCESSIVE DISCLOSURE CONFRONTATION", THIS FRAGMENT IS BELIEVED TO HAVE BEEN PIVOTAL IN THE MIERS CONFIRMATION:
FRAGMENT BEGINS -----------------------------------
FEINSTEIN: Keeping in mind your relationship with the President over the past several years, if, I should say when, a case comes before the court that involves a member of the Bush administration to which you have intimate knowledge, would you recuse yourself from hearing the case?
MIERS: Senator Einstein, I...
MIERS: My apologies, Senator Feingold. As I was…
FEINGOLD: Hello? Oh, yes. Please carry on.
FEINSTEIN: That's Senator Feinstein, not Senator Feingold.
FEINGOLD: I'm Senator Feingold.
SPECTER: Please continue, Miss Miers.
MIERS: As I was saying to, umm, her. I see your point about the separation of church and state, but whether the proliferation of WMDs is seen as…
FEINSTEIN: My question was whether you would recuse yourself from hearing a case that dealt with a former Bush administration official to which you had intimate knowledge.
MIERS: Intimacy does not have to have sexual implications, you know.
FEINSTEIN: Arlen, I give up. No more questions.
BIDEN: Senator Specter, may I be granted the opportunity to follow-up?
SPECTER: Why not, Joe. Good luck.
BIDEN: Thank you, Senator. Miss Miers, let me begin by asking you a question along the same general lines, but in a simpler fashion. I'll dumb it down a little, as it were.
SOCK PUPPET: Finally, someone who understands. Shoot, Joe.
BIDEN: OK, let's say, hypothetically, Karl Rove were to be found guilty of treason and sentenced to death for his outing of an undercover CIA agent.
MIERS: Like Valerie Plame?
BIDEN: Hypothetically, yes.
MIERS: Or Cheryl Kipplinger and Debbie Lang? Oh, there's that other spook. What was her name? Scooter?
LIBBY: Hillary… (inaudible)
SPECTER: May we have order, please. Miss Miers, would you please refrain from disclosing the names of any more undercover CIA agents.
MIERS: Certainly, your honor.
MIERS: Your senator.
SPECTER: Thank you. Senator Biden, please continue.
BIDEN: Thank you, Mr. Chairman. Miss Miers, let's say that Rove's appeal worked its way through the court system all the way up to the Supreme Court. Would you hear the case, or would you recuse yourself?
MIERS: Oh, I think I get the question now. Thank you. Yes, I would.
BIDEN: Would what? Take the case, or recuse yourself?
MIERS: Yes. Because I know the facts already and wouldn't even have to listen to the arguments. Additionally, I see the importance of this question to you, Senator Biden. Especially with your wife Jill being an undercover CIA agent and all.
BIDEN: What? Who told you such nonsense?
MIERS: I'm sorry, but I promised Karl that I would never tell anybody that he was my source.
PRESIDENT BUSH: Dagnabbit. I wish Rove would stop doing that. Makes me want to shit--
-------------------------------------------- FRAGMENT ENDS
Transcribed by Ion Zwitter, Avant News Editor
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