Making the rounds yesterday on Capitol Hill, Supreme Court nominee Harriet Miers sought to clarify her judicial philosophy but may have...
WASHINGTON — Making the rounds yesterday on Capitol Hill, Supreme Court nominee Harriet Miers sought to clarify her judicial philosophy but may have wound up sowing more confusion about her views on abortion.
Her position on the topic appeared to gain some clarity when Senate Judiciary Committee Chairman Arlen Specter, R-Pa., emerged from a nearly two-hour meeting with her, saying she told him she believes the Constitution includes a right to privacy.
He said in particular that she supported the Supreme Court’s decisions in Griswold v. Connecticut and Eisenstadt v. Baird, two cases that established a right of privacy for married and unmarried couples to use contraception.
The right to privacy enshrined in those cases was the foundation for the 1973 Supreme Court decision in Roe v. Wade, which established a woman’s right to end a pregnancy. Since then, legal discussions of privacy rights often serve as a proxy for the constitutionality of a right to abortion.
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Last night, White House officials said Specter had misunderstood Miers; a short time later, Specter’s spokesman issued a statement saying that the senator had misunderstood the nominee and that she had not taken a position on a constitutional right to privacy.
Hours earlier, Sen. Charles Schumer, D-N.Y., said the nominee had disputed a Wall Street Journal column published yesterday that quoted two close judicial friends from Texas as telling leading conservative skeptics that she would vote to reverse the landmark 1973 ruling.
“She said to me that she couldn’t recall discussing the Roe v. Wade case — and whether she would overturn it — with anybody,” Schumer said.
Yesterday’s flare-ups added new turbulence to Miers’ embattled nomination.
Wall Street Journal columnist John Fund said he obtained notes of an Oct. 3 conference call showing that two Miers allies, Texas Supreme Court Justice Nathan Hecht and U.S. District Judge Ed Kinkeade of Dallas, had assured religious conservatives that she opposed Roe v. Wade.
During the call, James Dobson, founder of the evangelical group Focus on the Family, introduced Hecht and Kinkeade, according to Fund.
White House political guru “Karl Rove suggested that we talk with these gentlemen because they can confirm specific reasons why Harriet Miers might be a better candidate than some of us think,” Dobson said, according to notes cited by Fund as taken by one call participant.
Citing notes from the unnamed participant, Fund reported that someone asked the judges, “Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe vs. Wade?”
“Absolutely,” Kinkeade said.
“I agree with that,” Hecht said during the call, which came the day President Bush nominated Miers.
In a telephone interview yesterday, Hecht said that’s not how he remembers the conversation. He said his statements have been the same to all interested parties: While Miers is “pro-life,” her personal beliefs don’t translate into an automatic vote on the court.
Kinkeade declined comment.
The flap came as the White House sought to refocus its rocky campaign for Miers, highlighting her qualifications as White House counsel and legal trailblazer for women. Many social conservatives have bristled at her nomination, questioning her background and qualifications.
Hosting six former Texas Supreme Court justices at the White House, the president said of the visiting jurists: “She’s impressed these folks. They know her well. They know that she’ll bring excellence to the bench.”
White House press secretary Scott McClellan said the administration doesn’t know what Miers’ positions will be on future cases “because we don’t have a litmus test and we don’t ask those questions.”
“What we do know is that she is someone who is deeply committed to strictly interpreting our Constitution and our laws,” he said.
A participant in the conference call earlier this month, speaking on condition of anonymity, confirmed The Wall Street Journal’s account of what was said. “Obviously, they described her as a pro-life conservative and they said she’s not the kind of person who would legislate from the bench,” he said. “But nobody said, ‘I’ve talked to Harriet and she assured me, blah, blah, blah.’ “
The participant said he has been “on the fence” about the Miers nomination and heard nothing during the call to change his mind. “And I think that’s the case for most people on the call,” he said.
Schumer said it was possible the Judiciary Committee would subpoena participants in the call. The key issue: whether the White House engineered a clandestine campaign to assure social conservatives that Miers would oppose abortion while publicly insisting it had no abortion litmus test in picking Miers.
Specter said the committee is investigating. “If there was a telephone call where someone gave assurances about how she’s going to vote in a case, you bet that’s something we’d look into,” Specter said.
White House officials said they had nothing to do with the teleconference in which Hecht and Kinkeade participated.
The Judiciary Committee wants to conduct confirmation hearings the week of Nov. 7, but Schumer and Sen. Dianne Feinstein, D-Calif., said a delay might be necessary.
Schumer called his 45-minute discussion yesterday less than illuminating and said he wants a second one to get a better grasp of Miers’ judicial philosophy and views on case law.
“She clearly needs some time to learn about these cases, to become familiar with these cases,” he said.
Feinstein, meanwhile, said she had not read The Journal piece, but called Roe v. Wade a “big threshold issue.”
The abortion issue hangs over Miers’ nomination much as it did over the appointment of John Roberts as chief justice earlier this year. The situations are different, however: Roberts replaced the late William Rehnquist, who voted to overturn the 1973 ruling. Miers would succeed retiring Justice Sandra Day O’Connor, who voted to uphold it.
Material from the Los Angeles Times
and Knight Ridder Newspapers
is included in this report.