Senator Brownback Addresses Conservatives' Hopes on Miers

This is a partial transcript of "Special Report With Brit Hume" from Oct. 20, 2005, that has been edited for clarity.

HUME: Conservative opponents of Supreme Court nominee Harriet Miers say the y can't identify any Republican senator who's now against her, but they say they have high hopes for Sam Brownback of Kansas. So who better to ask about that than the senator himself?

Senator Brownback, welcome. Nice to have you.

SEN. SAM BROWNBACK (R), KANSAS: Thanks, Brit. Good to be here.

HUME: Where do you now stand on Harriet Miers?

BROWNBACK: I am doing due diligence. The president has done his job, and now I'm trying to do mine, which is, we're supposed to give advice and consent. And to do that, I think we need as full a picture as possible.

I haven't stated a position on her. She may be a great nominee. She may not be an acceptable one. But I need to gather the information before making a decision.

HUME: What is your greatest concern about her, based on what you've seen so far, that she simply doesn't have the legal heft to be on the court or that she is not a judicial conservative?

BROWNBACK: It's the latter, actually. The issue of judicial heft, I think, is tough for one to be able to decide. And she is a bright lady. And she was a good corporate lawyer. That's been her main area of expertise.

And I think she's obviously a very bright lady. I think that's a little bit difficult to define.

But my issue, really, is, how will she rule on cases that come up? How is she going to rule on these key, tough privacy cases, private property right cases? Marriage is probably going to come up, a whole series of those, and that's what I'm trying to get...

(CROSSTALK)

HUME: ... tell you how she's going to rule on specific cases, do you?

BROWNBACK: No. But I do expect to be able to know what she looks at the issue of judicial activism, how she looks at the Constitution. And we should be able to determine that.

And plus, from her background, I would hope we could look at and determine some length of time of where she has viewed the world what way. How does she look at it?

HUME: Now, she stated, in the answer to the questionnaire that was filed, a judicial philosophy which she says came from her days in Texas, and, indeed was born in her first days as a clerk to a judge down there named Judge Estes, I believe his name was.

She says she's for judicial restraint, believes in the same sort of humble role for judges and courts that we heard articulated by now-Justice Roberts, Chief Justice Roberts. What did you make of that?

BROWNBACK: I took that as a positive. I think those are the right sort of statements to make. I believe her when she says those things.

It's still — you've got to get down into, I think, more of a situation and looking at and getting the questions. And she'll have the questions on, how do you view the right to privacy? Is that in the Constitution?

It's not to prejudge a case. But is it to say it's settled law or not? There's a dispute between her and Senator Specter as to her view on the Griswold case. And that's...

(CROSSTALK)

HUME: ... backed away from that, or are you still worried about it?

BROWNBACK: Well, what I'm understanding is he hasn't backed away from his view of what the conversation was, and she said she hasn't taken a position on Griswold.

HUME: Did you ask her about that when you talked to her?

BROWNBACK: I did talk with her about Griswold.

HUME: What did she say?

BROWNBACK: She looked at it as the factual setting of Griswold is unlikely to come back up. But the legal issue, I interpreted from what she was saying, is not a settled doctrine. So she was separating the facts from the law.

HUME: Correct me if I'm wrong here, but Griswold is the case in which the Supreme Court in 1968 found in a Connecticut case that had to do with use of contraception by a married couple...

BROWNBACK: By a married couple.

HUME: ... which the court threw the law that banned contraceptives out, finding the Constitution a previously unannounced protected...

BROWNBACK: Right to privacy.

HUME: ... right to marital privacy, which was then later elaborated into a right to an abortion. Is that correct?

BROWNBACK: Yes. That's correct. And also in the whole...

HUME: So you would be worried if you thought she support the Griswold decision lock, stock and barrel?

BROWNBACK: Well, I would be. Although others would point out Judge Roberts had supported Griswold but stopped when it came to Roe, or that Clarence Thomas had supported Griswold but stopped when it continued on through Roe.

I don't know what particularly she is saying, whether she's saying the factual setting of Griswold is unlikely to come up, which I would agree with. Married couple being challenged for being able to buy contraceptives. That's not going to come up factually.

But legally, the doctrine of a right to privacy, which I don't find anywhere in the Constitution, comes up all the time.

HUME: When you say you don't find a right to privacy, you're talking about this sort of all-purpose, one-size-fits-all right to privacy that was detected by the court in Griswold?

BROWNBACK: Absolutely. I mean, where in the Constitution is there a right to privacy that you can determine is a constitutional right to get an abortion? Where is that anywhere in the Constitution? It's not there.

This is an issue that should be debated in the public and in the legislative bodies across this country.

HUME: How do you respond or how do you react to discovering that she, in the past, at least, when she was in her political days — which were brief, obviously — was in favor of a constitutional amendment which would have made abortion a crime in all but the rarest cases?

BROWNBACK: I reacted positively to that. But I'm certain in the hearings she will walk away from the notion that that tells you how she would vote in a Roe case. It tells you politically what she viewed. I think it tells you where her heart is, that she does not support abortion, but it doesn't tell you how she's going to rule in a Roe-type case.

HUME: Well, what do you have to be — what do you need to hear from her on this line of issues, which is sort of central to our politics and to our law these days? What does she need to satisfy you of?

BROWNBACK: Is this settled law or not? Is the area of a right to privacy in sexual matters settled law or not? You know, we get opinions in different areas.

Also, this is one line of questioning. I think there are others that we need to look at and to know her role of the Constitution. And is this a document that is a textual document or is it something that lives, and breathes, and can be interpreted?

Now, I think she's going to say this is a textual document. I'm going to stay with that. And I'm hopeful that's what she's going to say. And I want to probe that set of issues and questions.

I think we're developing a fuller portrait of who she is in this process.

HUME: In your interaction with her, does she strike you as somebody who's intellectually capable of playing with the big hitters on the Supreme Court?

BROWNBACK: She's intellectually capable of doing that. She has not been...

HUME: So this comes down to the kind of legal philosophy she has, then?

BROWNBACK: It does to that. But I want to add here a footnote. I'm trained as a lawyer, as well, not a John Roberts-quality lawyer. He is an all- star type of lawyer.

The problem is, she hasn't been working in the constitutional law field for some period — she was a corporate lawyer. And that's a very big calling. And it's a tough job. But it is a different set of laws. And it's going to be tough for her in the hearings. And I think, Brit, the set of hearings that she goes through will probably be determinative of this candidate on her making it on through.

HUME: And so you remain, then, undecided but not unwilling?

BROWNBACK: That's correct.

HUME: Sam Brownback, nice to see you, sir.

BROWNBACK: Thanks, Brit.

HUME: Thank you for coming in.

BROWNBACK: I'm trying to do my job.

HUME: Good to have you, sir.

Watch "Special Report With Brit Hume" weeknights at 6 p.m. EDT.

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