Los Angeles Times
October 20, 2005
WASHINGTON — The Supreme Court nomination of Harriet E. Miers, already troubled by a lack of enthusiasm on Capitol Hill, ran into more rough ground Wednesday when senators from both parties rejected her responses to a questionnaire as insufficient.
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and the panel's top Democrat, Patrick J. Leahy of Vermont, complained that her answers were at best incomplete — Leahy said some lawmakers considered them insulting — and asked Miers to resubmit answers to some of the questions, especially those about her work in the White House as counsel to President Bush.
"Sen. Leahy and I took a look at it and agreed that it was insufficient and are sending back a detailed letter asking for amplification on many, many of the items," Specter said at a news conference.
It was the latest problem for Miers and the White House in a nomination that has attracted much criticism and mostly lukewarm support, even from the president's most ardent backers.
Specter said it was too soon to say Miers was "in trouble." But he described her nomination process as chaotic and said it was being further confused by backdoor messages from the White House intended to reassure conservative leaders — some of whom went public about those discussions — about what she would be like as a judge.
"What I'm referring to are all of the forces which are at work out here commanding media attention and commanding public attention," Specter said. "There's been more controversy before this nominee has uttered a formal word than I have ever heard."
He and Leahy asked their colleagues to withhold judgment until after Miers' confirmation hearings, scheduled to begin Nov. 7.
When Bush nominated Miers to the high court this month, he told skeptics that they would appreciate her virtues as soon as they got to know her. But after meeting with more than 20 members of the Senate and delivering the 57-page questionnaire to the committee Tuesday, Miers seems no closer to winning them over.
She had a misunderstanding with Specter over what she told him about the right to privacy. She stumbled over a softball question from Leahy about whom she most admired among past Supreme Court justices. Even some Republicans who are inclined to support her came out of their meetings damning her with faint praise.
"I might have liked a different type nominee myself, but that's the president's choice," Sen. Jeff Sessions (R-Ala.) said after his meeting with Miers.
The lackluster beginning of her campaign to be confirmed raises the stakes for Miers, and the president, when she appears before the Judiciary Committee. Senators of both parties say her nomination will succeed or fail based on how well she performs.
Senators and aides have been reluctant to provide details of their meetings with Miers because they do not want to antagonize the White House. But some described her as surprisingly reticent and, in a word used by more than one of them, "underwhelming."
Even those who were impressed said that she offered up little of herself in conversation. "In these meetings she has been very guarded," said Sen. Lindsey Graham (R-S.C.).
One senator found her much too quiet. The lawmaker had such a hard time hearing Miers that aides had to tell people outside the meeting room to quiet down.
"She doesn't have the gravitas in terms of the constitutional issues," said another senator who has been critical of Miers. The nominee, the senator said, would not answer questions about whether she would recuse herself if issues involving her work with Bush came before the high court.
"Generally when you hold these interviews, people want to show you what they know," the senator said. "She did not respond. Nothing came back."
Miers' questionnaire did little to improve her standing.
"The answers in the questionnaire that came up — the comments I've heard ranged from incomplete to insulting," Leahy said. "Certainly it was inadequate and did not give us enough to prepare for a hearing. We will need to have more."
The senators' request for more detailed answers was unusual in that it was bipartisan and sent one day after Miers delivered the questionnaire.
Sen. Edward M. Kennedy (D-Mass.), a veteran of 21 Supreme Court nominations, said he could not recall a similar situation where senators from both parties requested that a nominee resubmit responses.
In their letter, Specter and Leahy gave Miers a week to answer their questions — including a fuller explanation of why she was briefly suspended from the District of Columbia bar for nonpayment of dues, and how she planned to resolve potential conflicts of interest, including recusing herself from cases involving the administration.
In her questionnaire, Miers had said she would "abide by the spirit and the letter" of the Ethics Reform Act of 1989 in making recusal decisions. The senators appeared to take umbrage at the sketchy response and responded pointedly.
"We are aware of the statutes and codes that generally govern these matters, but recusal decisions of the Supreme Court justices are more complicated because they are not subject to further review," Specter and Leahy wrote. "The committee would like you to address the issues specific to your situation."
Miers sent back an immediate response saying she would work to provide additional materials. But she also raised eyebrows by disclosing that she had neglected to mention a second suspension from the bar — this one from the State Bar of Texas in 1989, also for nonpayment of dues.
White House officials said the suspension was the result of an administrative oversight in her law firm.
"In the mid-1980s, the law firm took over responsibility for paying the annual dues for all the attorneys of the firm," said White House spokeswoman Dana Perino. "In a bulk annual payment in May 1989, the dues for Ms. Miers and two additional lawyers for the firm were inadvertently left out of that payment. As soon as the firm realized the clerical error, they corrected it and she was reinstated with no disciplinary action or sanctions."
But critics said the omissions and errors suggested Miers might be less meticulous than White House aides had painted her.
White House spokesman Scott McClellan expressed no concerns about the nomination or senators' dismay over the questionnaire.
"I don't think they should make their judgment based on just a questionnaire," McClellan said at his daily briefing for reporters. "They're going to make their judgment based on her hearings and answers to those questions as well, and additional information that will be provided too as we move forward.
"The confirmation process is moving forward," he added. "We're confident she'll be confirmed."