Why Do Some Conservatives Want Harriet Miers to Withdraw?

This is a partial transcript of "Special Report With Brit Hume," October 10, 2005, that has been edited for clarity.

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(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Do you think you'll be able to support her?

SEN. CONRAD BURNS (R), MONTANA: Don't know. You know, you got to go through the wash and then go through the wringer. And what comes out, why, we will make up our mind at that time. I think she'll be much more revealing after the hearings...

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ANGLE: Harriet Miers (search) is going through the wringer, all right, at the hands of some conservatives who are concerned that she's an unknown quantity. Some even suggest she is unqualified and argue a more outspoken conservative nominee would have been better. But some conservatives are supporting Miers. And Jay Sekulow is one of them.

Jay is the chief counsel of the American Center for Law and Justice (search) and joins us now from Nashville.

Jay, thanks for joining us.

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: Thanks for having me, Jim.

ANGLE: Let me ask you first: You were on a conference call yesterday with some 600 conservative activists from around the country. And one woman on the call said she had never known President Bush (search) to appoint anyone other than a judicial conservative, meaning interpreting the law, not making it.

Yet, a lot of conservatives don't seem to be at all satisfied with that. What is going on here?

SEKULOW: Well, I think part of it is we're in an education process. We're in the first week of the nomination of someone that a lot of people did not know. And that has caused some people some concern. Who is Harriet Miers? (search) What does she stand for?

But I think as time goes on — and we've seen this already, a little bit of shifting this week — as people do get to know her, as she talks about her judicial philosophy, and it certainly will come out during the confirmation hearings, people are going to be comfortable that this is a conservative.

After all, President Bush has appointed consistently conservative members to the courts, the district court, the court of appeals, and most recently with Chief Justice Roberts to the Supreme Court of the United States. There's no reason that now he would be making a switch there.

And there's something else about this that I think tends to get ignored in this process and that is this whole issue of, does the president — has he somehow turned his back on the conservative movement on this? Remember, the president ran on twice the idea that there should be conservatives on the bench who want to see a change in the Supreme Court of the United States (search).

I believe with Harriet Miers he's going see that change. And after all, he knows her better than anyone.

ANGLE: And, you know, one of the criticisms — and we'll hear some of it later in the show — is that Harriet Miers is not just a crony of the president, but that she's nothing more than a crony of the president. What do you say to people who hold that view?

SEKULOW: Well, I don't think that — yes, I don't think that's fair. Let's take a look at this first of all. This is a woman who broke some significant barriers.

She's the first female president of the Texas Bar Association (search). She took on the American Bar Association (search) when they came out with their pro- abortion policy back in the mid-1990s. I was involved in that fight. She took a very courageous and not very politically correct move at the time, and that took a lot of courage.

She's also the White House (search) counsel. This is one very smart woman, a very smart lawyer, someone that knows how to handle herself under fire. And I think she's going to do, by the way, great at these judicial confirmation hearings.

No one should underestimate for a moment the intelligence of Harriet Miers. She has the confidence, after all, of the president of the United States and has had that confidence for a long time.

ANGLE: But what about constitutional issues, Jay? A lot of people say, "Look, she's had experience here, she's had experience there. She's been a litigator and the head of a law firm. But on constitutional issues," they say, "She just doesn't have a record."

SEKULOW: Well, it kind of ties into this whole issue that the president went outside the judiciary. But remember, Jim, the president talked about bringing someone onto the Supreme Court, even before John Roberts' (search) nomination, that was outside the bench.

And I'm someone that litigates at the Supreme Court of the United States regularly. I've got cases coming up this term. And I think it's good to bring this kind of different perspective in on someone that has not served as a judge.

And, look, I mean, she's not immune to the Constitution. She's been the White House counsel. She deals with the Constitution of the United States every single day.

She was also the staff secretary. So to say that she doesn't have constitutional opinions, that's true, in the sense of a written opinion as a judge. But this woman's been working with the Constitution of the United States for a long, long time.

ANGLE: Now, I've heard a lot of conservatives say they have been waiting for this fight — for this fight for years, apparently meaning a fight to change the tenor of the court. And they seem quite disappointed that the president didn't pick that fight, by choosing Harriet Miers who doesn't have much of a record and seems even acceptable to some Democrats.

Why didn't the president pick that fight, do you think?

SEKULOW: Well, I'm telling you, I'm not convinced there's not going to be a fight yet. I mean, you know, you hope for a civil process. There started to be a fight with John Roberts' nomination, but as soon as he was sworn in to take the chair and testify, everybody saw the kind of lawyer he is.

I think you're going to see a lot of that with Harriet Miers, too, a different personality, a different approach, maybe, but a very, very bright person.

But, look, I mean, the president made a decision based on one thing that he knew, and that is he knew Harriet Miers' record. He knows her view of the Constitution. He knows it intimately.

This is not a situation that you had, for instance, with the first President Bush. And everybody talks about the Justice Souter factor. And here's the real answer to that question, and that is, President Bush, the first President Bush, did not know Justice Souter until he was actually interviewed and nominated. He relied on a lot of other people that gave him advice on this.

President Bush has known Harriet Miers for 10 years, for over a decade. He knows the kind of lawyer she is. He knows her judicial philosophy.

So a lot of people are looking for the fight. And the fight may still come. And there's nothing wrong with the fight. But you know what? We have a civil process. I really think that's actually better for everyone and, in the ultimate end, better for the Supreme Court of the United States.

ANGLE: Jay, thanks very much. Our time is up. Thanks for joining us.

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