Miers to Be Questioned on Gitmo Policy

WASHINGTON - The chairman of the Senate Judiciary Committee served notice Wednesday he intends to question Harriet Miers about the Bush administration's policy of detaining suspected terrorists at Guantanamo Bay, injecting new uncertainty into a Supreme Court nomination already in doubt.

In a letter to Miers, who is White House counsel, Sen. Arlen Specter also said he would ask what assurances she could offer that she would be independent, if confirmed, "and not give President Bush any special deference on any matter involving him that might come before the court."

Specter, R-Pa., released the letter as the White House struggled to build support for an appointment that has drawn withering criticism from some prominent conservatives outside Congress and steady skepticism _ or worse _ from Republican senators.

Three GOP officials said they no longer felt certain that Miers' troubled nomination would survive as long as the Nov. 7 target date for hearings, and that a withdrawal was not out of the question. They spoke on condition of anonymity, noting that the administration's official policy is one of strong continued support for the president's pick.

A conservative group that had given Miers the benefit of the doubt changed positions on Wednesday. Concerned Women of America, which had so far supported Bush's judicial nominees, urged the president to withdraw her nomination.

"We wanted to back the president, and sought evidence to support this nomination, but we find this Supreme Court nominee unqualified and her record troubling," said Beverly LaHaye, the group's founder. "However, we look forward to a nomination that we can wholeheartedly endorse."

Miers met with Sen. David Vitter, R-La., the latest in a round of senatorial courtesy calls, and labored to answer written questions from the Judiciary Committee by day's end. The panel sought the information after deeming her earlier responses incomplete.

Vitter told reporters he wanted the White House to provide written evidence that Miers has a conservative judicial philosophy. "What I am suggesting is that I'd love to see more written material that predates the nomination," he said.

Miers was named less than a month ago to replace Justice Sandra Day O'Connor, whose views on the constitutional questions of the most contentious issues of the day often left her as the pivotal vote on 5-4 rulings. In particular, O'Connor joined in rulings that upheld abortion rights and affirmative action.

While several GOP senators have lamented the shortage of material detailing Miers' views, a speech she delivered in 1993 drew attention from Vitter and other conservatives.

Discussing the issues of abortion and voluntary school prayer, she told the Executive Women of Dallas, "The underlying theme in most of these cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes the most sense."

Vitter declined to tell reporters what Miers had told him about the speech she made a dozen years ago. Sen. Sam Brownback, R-Kan., said it raised another question in his mind about her views. "It's something we'll have to probe," he said.

Specter's letter set out a controversial area he intended to probe _ the constitutional underpinnings of the administration's handling of suspects in the global fight against terrorism.

Referring to cases involving the detainment of "enemy combatants" at a U.S. facility at Guantanamo Bay, Cuba, Specter noted that the administration contends that most of the detainees are kept in custody "not for punishment" but to keep them for interrogation and prevent them from returning to the battlefield.

"Are there any limitations as to how long detainees may be held for the purposes identified by the government?" he asked, setting out the first in a series of questions he intended to pose at the hearings. Pentagon policy on the issue makes no mention of a time limit on the detentions.

Additionally, Specter posed a series of questions about the authority of the president to detain aliens outside U.S. borders.

These questions all appeared to involve controversy for Miers, since she has advised Bush privately about the war on terror, and the president has long insisted that advice offered within the White House is off-limits to outsiders.

The issues raised by the cases that Specter cited may resurface at the Supreme Court in the future, and nominees traditionally have shied away from offering opinions in such circumstances. Chief Justice John Roberts invoked that precedent numerous times at his own confirmation hearings.

Specter also outlined questions relating to Congress' constitutional authority to declare war.

Back by popular demand, for all those who doubted me when I brought this up weeks ago...

As Bush's personal lawyer in Texas, she got him out a quite a few legal problems. Democrats will be more than happy to rehash this all over again.

From 2001 until 2003, Miers was Assistant to the President and Staff Secretary, the person who controls every piece of paper that crosses the president's desk. She is the person who decided what memos the president did and did not receive. Maybe the Democrats might be interested in seeing some of those documents.

From 2003 until 2005, Miers was Deputy Chief of Staff on Policy. There has been quite a lot of controversial policy drafted by the Bush White House since 2003, and Miers was instrumental in its creation. The Democrats may want to revisit some of their favorite policies to demagogue.

Starting this year, Miers has served as Counsel to the President, where she has most assuredly advised the President and his staff on a number of legal issues. Perhaps the Judiciary Committee Democrats might be interested in what kind of advice was sought and provided?

This is a glimpse of what the Confirmation Hearing is going to look like:

It is impossible to know what the outcome of all of this will be. It may merely embarrass the Bush administration. But there is also the very real possibility that it may all quickly spiral out of control. What internal White House documents will the Democrats request? How will the Bush administration look if they refuse? How bad will the media firestorm be if they don't turn over such documents? How bad will the media firestorm be if they do turn over such documents? Does Miers have any chance of confirmation if the White House doesn't cooperate with document requests?

And then there is 28 U.S.C. §455 which states:

Section 455. Disqualification of justice, judge, or magistrate judge

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

Miers may very well be rendered disqualified from hearing any case involving Bush administration policy in the Global War on Terrorism.

Compare Harriet Miers's answer to question #28 on the Senate Judiciary Committee's questionnaire paraphrasing the wording of the majority opinion in Planned Parenthood v. Casey, the 1992 case which reaffirmed Roe v. Wade and expanded abortion rights:

"Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to the question. Thus, whether a prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests mitigate against overruling."

—Harriet Miers

"So in this case, we may enquire whether Roe's central rule has been found unworkable; whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism discounted by society; and whether Roe's premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed."

U.S. Supreme Court
PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992)

The court must also consider other factors, such as whether the prior decision has proven unworkable
So in this case, we may enquire whether Roe's central rule has been found unworkable

whether developments in the law have undermined the precedent
whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism

whether legitimate reliance interests mitigate against overruling
whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it

Miers parroted Souter, O'Connor, and Kennedy's exact reasons for not overturning Roe v. Wade while professing her deep abiding respect for stare decisis.

Miers says "Judicial activism can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent"

Souter, O'Connor, and Kennedy refer to the stare decisis of Roe no less than 11 times in their opinion, making sure to cement it as Court precedent. Miers's answer binds her to deference.

None of this should give anyone comfort in the least.
It is all a very strong signal from Miers that she will turn to stare decisis and not vote to overturn Roe.

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