WASHINGTON – Risking a possible clash with the Senate, President Bush (search) insisted Monday he will not turn over documents detailing the private advice that Supreme Court nominee Harriet Miers has given him while serving in the White House.
With Miers' nomination facing continued opposition from conservatives, Bush sidestepped a question of whether the White House (search) was working on a contingency plan for her withdrawal. At the same time, he was emphatic about not turning over papers relating to the "decision-making process, what her recommendations were."
"That would breach very important confidentiality, and it's a red line I'm not willing to cross," he said in an apparent reference to bipartisan requests from the Senate Judiciary Committee (search). Miers has held three jobs in the Bush administration. Currently White House counsel, she has regularly advised the president on a range of sensitive topics.
Bush's remarks drew a cautious response from Sen. Arlen Specter, the Pennsylvania Republican who chairs the Judiciary Committee. He told reporters the panel had requested "non-privileged documents" and said he was hopeful of finding common ground with the White House on the issue.
He followed up with a written statement for emphasis: "I believe that if Ms. Miers does well at her hearing that she can be confirmed without touching on the issue of executive privilege. The Senate has not asked for anything falling under executive privilege."
But Sen. Chuck Schumer of New York, a Democratic member of the committee, said it appeared the White House was refusing to turn over documents that were not shielded by attorney-client or executive privilege.
Taken together, Bush's remarks and the reaction of the lawmakers underscored one of the political differences between Miers' nomination and that of John Roberts, who was confirmed as chief justice last month. In the earlier case, Senate Republicans refused to join Democrats in requesting records dating to the administration of the first President Bush, and the White House gave no ground.
Bush answered questions from reporters as Miers met privately with Sen. Tom Coburn, R-Okla., the latest in a round of senatorial courtesy calls in the run-up to confirmation hearings beginning Nov. 7.
Republican officials insisted after Bush's comments that his non-response to a question relating to withdrawal did not signal a shift. And the president praised his nominee. "Harriet Miers is a fine person, and I expect her to have a good, fair hearing on Capitol Hill," he said.
Bush named Miers four weeks ago to replace Justice Sandra Day O'Connor. Given O'Connor's history as the pivotal vote upholding abortion and affirmative action, many conservatives have criticized Bush for turning to his White House counsel, a 60-year-old with no experience as a judge and scant public record on controversial issues such as abortion rights.
While Miers has drawn occasionally harsh criticism from conservatives outside the Senate, none of the 55 GOP senators has announced plans to oppose her. White House aides, themselves criticized for missteps in the confirmation campaign, have appealed to Republican lawmakers to withhold judgment until she testifies at her hearings.
In talking to reporters, Bush said that recently requests "have been made by Democrats and Republicans about paperwork out of this White House that would make it impossible for me and other presidents to be able to make sound decisions."
"In other words, they've asked for paperwork about the decision- making process, what her recommendations were," Bush said. "People can learn about Harriet Miers through hearings, but we are not going to destroy this business about people being able to walk into the Oval Office and say, 'Mr. President, here's my advice to you. Here's what I think is important.'"
The committee has asked Miers for "any reports, memoranda or policy statements prepared or produced with your participation" while she was holding a public office.
It also has requested material relating to constitutional issues.
Specter outlined some areas for reporters that he said might not run afoul of Bush's own guidelines. Miers helped screen judicial candidates for the administration as part of her duties and has said there is no litmus test for appointees. "That's the kind of information that would be helpful to the committee," he said.
The Pennsylvania Republican also mentioned areas in which her role as an adviser to the president might require her to recuse herself if they came before the court.
Republican Sens. Sam Brownback of Kansas and Lindsey Graham of South Carolina, both of whom are members of the committee, have said they want to see material that would shed light on Miers' judicial philosophy.
Brian Hart, a spokesman for Brownback, has said the senator wants the White House to release "any or all documents they can ... as long as it does not affect attorney-client privilege."
Kevin Bishop, Graham's spokesman, said the South Carolinian generally will want to see documents "not protected under attorney-client privilege and when there's a close call on those he thinks they should be turned over to the committee."