"FOX NEWS SUNDAY" HOST CHRIS WALLACE: With Harriet Miers (search) due to face the Senate Judiciary Committee in two weeks, it's fair to say that perhaps more than any nominee her performance in those hearings will determine whether she makes it to the Supreme Court.
We're joined now by two key members of the committee: Senator Patrick Leahy, the top Democrat on the panel, and from his home state of Kansas, Republican Sam Brownback.
And Senators, welcome. Thanks for joining us today.
(UNKNOWN): Thank you, Chris.
WALLACE: There's a report denied by the White House that officials there are making contingency plans in case the Miers nomination is withdrawn.
Senator Brownback, have you seen any signs that the White House is considering this, and do you think it might be a good idea to pull Miers' name?
SEN. SAM BROWNBACK, R-KAN.: Well, I'm not seeing any signs that they're considering this. There's been a number of private commentators that have suggested this, and that's been well reported in the media.
But I haven't seen anything coming from the White House that says that they're going to pull this nomination. They're doing everything they can to prepare Harriet Miers for the hearings right now.
WALLACE: Senator Leahy, you've been in Washington a long time. How much trouble is this nomination in?
SEN. PATRICK LEAHY, D-VT.: I think everybody should just take a deep breath and wait for the hearings. I mean, this is the important thing.
I've been here now for 13 nominations to the Supreme Court. I've taken exactly the same position in every one of them: let's have the hearings; let's make up the mind. Every one of them I said I'll determine how I'll vote after the hearings. I did that most recently with Chief Justice Roberts, and I voted for him. I'm doing the same thing here.
What is difficult here is we had the questionnaire, of course, which came up. It was incomplete; it was inadequate, and I -- many senators of both Republicans and Democrats felt that way. The chairman, Chairman Specter and I sent it back down to her, said -- I think that's sort of an unprecedented thing to have to send a questionnaire back. I said, look, answer the questions because it will make the hearings more realistic.
WALLACE: Let's talk about some issues. It turns out that as president of the Texas Bar Association back in the early 1990's, that Miers embraced racial and gender set asides and even numerical targets to try to increase diversity in the Texas Bar.
Senator Brownback, given that affirmative action is a big issue before the Supreme Court, does that concern you?
BROWNBACK: Well, it concerns me that again it's a piece of evidence that we've just now come across and we need to explore and know more. What were her views, what are her views on affirmative action and particularly the issue of quotas, which is introduced in this discussion on the Texas Bar Association and setting aside specific numbers of seats. And I think that's something we need to know.
That's why I've sought for more information from this candidate -- more information on the background, more information in the recent past, even in the time that she's in the White House, on policy discussions, because this is an unusual candidate. We need to know more fully these views, an these things just kind of keep dribbling out and we need to have that full picture before we can vote as a committee at least, and certainly as a Senate.
WALLACE: Well, let me pick up on that, Senator Brownback, because I know that this week you joined with Senator Lindsey Graham in asking the White House to release some of her work product there.
Are you asking the White House to waive executive privilege, and if they refuse to do so, would that be a deal breaker?
BROWNBACK: Well, I think that's almost a -- them providing this type of information from the White House is almost a risk they assume when you nominate a candidate that's from inside the White House.
We need to know if we're going to give advice and consent, and that's our role in this process -- it's not a rubber stamp. If we're to give advice and consent, we've got to have a full picture. In the last five years that she's been working, it's in the White House.
Is it a deal breaker or not? I really couldn't put it at that point, but I do think we're going to have to see more information, not attorney-client privilege type information, but more information of the work product that she was involved in, in the White House that's not of a legal nature, but that's of a policy nature.
WALLACE: Such as?
BROWNBACK: Different discussions that she was involved in on issues that come through the White House, and there's a whole myriad of them that have been coming through this White House.
I don't want to put a specific type of information as far as policy discussion. What I'm excluding is anything that she did as a lawyer on an attorney-client privilege. I think that should be off mark.
But the rest of this information I think is open and needed. This is her last five years. It tells us probably the most about her viewpoints, would be in these last five years, and frankly I think we need to know.
WALLACE: Senator Leahy, how much should the White House turn over?
LEAHY: I think they're going to have to turn over more than less. I think what Sam Brownback has said is absolutely true.
Keep in mind that the letter that went down was gone over by Republicans and Democrats, the letter from Senator Specter and myself asked for a lot of this. We want to know what it is that she worked on.
Now, they haven't actually declared executive privilege (search), but the president has said that he's based her -- up his mind to nominate her to the highest court in the land based on what she's done at the White House. Well, now we 100 senators stand in the shoes of 280 million Americans; we have to make a decision on behalf of 280 million Americans.
The president has based that decision based on what he's seen her do in the White House. We ought to at least know what it was she did in the White House.
I'll give you one area especially. Now, one of the clear questions that's going to be asked -- was asked of Chief Justice Roberts (search), has been asked of everybody -- when do you recuse yourself, when do you step back and say, I can't hear this case because I have a conflict of interest?
Now, a lot of the things she worked on in the White House are on their way up to the Supreme Court, ultimately could end up at the Supreme Court. I think it's totally legitimate to say, what did you work on? If that issue comes before the Supreme Court, what will you do? Will you step back or not?
We asked her a lengthy question on that, Senator Specter and I did. She just sent back -- quoted the ethics on -- rules on recusal (search). We're both lawyers. We know what the rule says; we don't need to have that quoted back to us. We want to know how she's going to apply the rule.
WALLACE: Senator Leahy, aren't Democrats in a box here? If you oppose Harriet Miers and she goes down, her nomination goes down with the help of a few conservative Republican senators, don't you run the risk that President Bush will come back with an even more conservative nominee who, for instance, isn't for racial and gender set asides?
LEAHY: Well, I think that's sort of a chess game that maybe some of the commentators in the press might play; it's not one that I play. I see my responsibility as one of 100 people making a decision for 280 million Americans. I take each one of these as they come along. I never look at it and say, well, if I vote this way on this one, how will I vote on the next one? I take each one as they come along.
As you know, many people in my party, many people who supported me were strongly opposed to John Roberts. I voted for him. I made up my mind based on what I heard in the committee, based on what I heard in three hours of one on one conversations with him.
I take each one of these as they come along. I'll do the same with her. If she is qualified to be on the Supreme Court -- if we determine that after the hearing, I'll vote for her. If she is not qualified, if the hearings determine she is not qualified, I will vote against her.
I mean, this is the same rule I've followed for every single judicial nomination.
WALLACE: Senator Brownback, President Bush once again, said this week that Harriet Miers will be a solid, dependable conservative justice on the Supreme Court. Let's watch.
(BEGIN VIDEO CLIP)
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: She will strictly interpret the Constitution. I said that when I ran for president. I said, if you elect me, I will name a judge that will have that judicial philosophy.
(END VIDEO CLIP)
WALLACE: Senator Brownback, given the president's record on his judicial appointments over the last five years, why not trust him when he says Harriet Miers is going to be what I say she is going to be?
BROWNBACK: Well, that's not my role in the process. My role is to advise and consent. I need to know more if I'm going to give advice and consent in this process.
And I don't doubt what the president says is true. But I need to know factually; I need evidence along that line. Plus, there's an issue here. A lot of times in the past -- I shouldn't say a lot of times, but several times in the past, a nominee has gone on, been pretty solid, voted on a fairly strict constructionist view of the Constitution, then over a couple of years, veers to the left.
And that's been a pretty consistent pattern here recently. That means the individual really didn't have a set judicial philosophy. We need to look at Harriet Miers to see how set her judicial philosophy is if, after a year or two, it starts veering off to the left.
WALLACE: Senator Brownback, it's been widely reported that you are getting pressure from Bush allies in states, coincidentally, like New Hampshire and Iowa, that if you want support in a possible run for president in 2008, you ought to back Miers.
Is that appropriate?
BROWNBACK: No, it's not. And I don't know that anybody's actually doing that.
Well, that's just not the way the system operates. I mean, people can put political pressure, and people do all the time in all sorts of cases. Just like Pat Leahy said, a number of backers of his didn't want him to support John Roberts and he did.
I look at it the same way. They can bring political pressure. That's fine. I'm going to make as informed and solid a decision as I can on what's good for the country.
WALLACE: Finally, let me ask you both about the CIA leak case. What do you make of it?
I know you're a former prosecutor, Senator Leahy.
And how damaging to the president and to his agenda, if some top White House officials are indicted this week?
LEAHY: The first thing I'd remind people is that I always did, when I was a prosecutor, no matter what crime is inferred, no matter what crime may be charged or, even though it's a criminal grand jury, the person charged is presumed innocent unless and until they're proven guilty of a crime.
And I think -- let me say this as a Democrat, even thought it may be Republicans charged with a crime, they have to be presumed innocent. If there is an indictment, if an indictment is handed up against anybody in the White House, I think it would be extremely damaging.
It would be, no matter whether it was a Democrat or Republican administration, it would be extremely damaging. It brings a whole lot of things to a halt.
WALLACE: And Senator Brownback, you've got the last word on this.
BROWNBACK: Well, I think it would be damaging if an indictment is brought. That's not the end of the case; that's bringing the charge and it needs to be seen on through.
I think what we have to do as Republicans is we've got to continue to move forward a solid agenda. We need to get appropriation bills through. I think we need to deal with issues like immigration. We need to balance the budget.
I think what we've got to do is that and these other issues -- they're going to take on a life of their own. And they need to be followed through the legal system.
But I think we just need to stick to our knitting on the topics and the subjects the American people care about.
WALLACE: Senator Brownback, Senator Leahy, I want to thank you both so much for coming in today to talk with us.
LEAHY: Happy to.
BROWNBACK: Thank you.