Transcript: Conservatives Debate Miers' Nomination

The following is a transcribed excerpt of "FOX News Sunday," Oct. 9, 2005.

CHRIS WALLACE, HOST: Well, almost everyone in Washington expected a fight over the president's Supreme Court nominee, but when he named White House counsel Harriet Miers (search) this week, most of the protests came from fellow Republicans.

To explore this family feud, let's bring in three conservatives. Senator Lindsey Graham (search), a member of the Judiciary Committee, Texas supreme court justice Nathan Hecht (search), a longtime friend of Miers, and Gary Bauer (search), head of the American Values Group who's criticized the nomination.

Gentlemen, welcome. Thank you all for joining us today.



SEN. LINDSEY GRAHAM, R-S.C.: Good morning.

WALLACE: Let's start with some advice that Senator Graham had for critical conservatives after he met with Harriet Miers this week. Let's watch.


GRAHAM: Just shut up for a few minutes and just give the lady a chance to find out who she is. You know, people are not really — people want their 15 minutes of fame. This ain't about Harriet. It's about them.


WALLACE: Gary Bauer, is this all about wanting your 15 minutes of fame, and are you going to take the advice from Senator Graham and shut up?

BAUER: Well, again, in all due respect to my friend Senator Graham, give me a break. I mean, talking about 15 minutes of fame, I still remember an agreement he signed onto a few weeks ago that conservatives have not reconciled themselves to.

Look, the point of the matter is we're not going to find out anything more than what we've already found out about Harriet Miers, because the whole strategy here is the so-called stealth strategy, picking candidates for the Supreme Court who have no judicial record on things that really matter — the establishment clause, stare decisis, things like Roe v. Wade (search).

And the problem with that, Chris, is that that's a strategy that has been tried over and over and over again. And at the end of the day, the only ones who get fooled by it are conservatives.

Republican presidents have appointed seven of nine Supreme Court justices. Many of them had the same sort of profile. We were told they were conservatives, but at the end of the day, they ended up not being, and the result is we still have a court that may force same-sex marriage on us, that may take "under God" out of the Pledge of Allegiance, that may not overturn Roe.

And I would hope that Senator Graham and others would start promoting a strategy where we would actually start winning judicial battles and change the court.

WALLACE: Senator Graham, how about it?

GRAHAM: Well, we're winning. Every time the president sent someone up who's been attacked by the left, they're sitting on the bench now — Priscilla Owens, Pryor, Janice Rogers Brown, John Roberts. If you're a conservative, we're winning.

And why did he do what he did? Why did the president pick Harriet Miers? I don't think it's going to be on a segment of "Unsolved Mysteries". He made a decision, Chris, to pick a woman. Why did he do that? I think he believes it would be better for the country to have the Supreme Court more diverse. I support his decision to pick a woman.

And when he decided to fill someone to fill the spot, what woman did he pick? He picked the person he knew the best and he trusted the most, and that's classic George W. Bush. I was pushing Karen Williams. There are plenty of conservative women out there qualified to be on the Supreme Court.

George W. Bush picked the woman that he knew the best, that was his lawyer, he's known for a decade-plus, and that's classic Bush. And I think if people will listen, and give her a shot, and understand who she is and how she's lived her life, she will be a very fine choice.

WALLACE: Justice Hecht, I know that you've talked to your old friend, Harriet Miers, this week. How does she respond to these attacks by conservatives that she's just a crony of the president and that her nomination is a joke?

HECHT: Well, it's just false and the criticism just rolls off her back. She's got a record miles long. This is a very solid appointment because of a solid, consistent track record over the years.

And to say that she doesn't have experience with these constitutional issues or with judicial philosophy — she's been vetting for the president judicial candidates to the federal bench.

She has to know what is involved in these constitutional issues and judicial philosophy and inquire of candidates where they stand. And so I can't think of anybody else who would have had more experience with these issues on the ground than Harriet's had.

WALLACE: But what has she specifically said to you when people say she's just a crony, that this nomination is a joke?

HECHT: She just dusts it off. She knows it's not true, that the president has chosen her because he's watched her for 10 years. He's thrown her hardballs. You ask your lawyer time and again what's the answer to this question. Your lawyer gives you good advice. What do you think after 10 years? That she's a great lawyer.

WALLACE: Justice Hecht, let me ask you one other question. Bill Kristol, a member of our panel who will be on in a few minutes, says that this is such a bad nomination that Harriet Miers should actually consider stepping aside. Any chance of that?

HECHT: No chance at all. I mean, she is going to see this through, but not only that. Senator Graham says when her record becomes more apparent to the American people — and they're going to see it in this confirmation process — then not only is she not going to withdraw, people are going to herald this nomination as a good one.

WALLACE: Has she specifically said to you no, I'm not going to withdraw?

HECHT: No, she hasn't specifically said. But, I mean, it's outside the bounds of possibility.

WALLACE: All right.

Mr. Bauer, since her nomination, I think it's fair to say that we have learned more about Harriet Miers' religious life than her legal career.


WALLACE: She attends an evangelical Christian church. Justice Hecht says that she's pro-life. Why isn't that enough for you?

BAUER: Well, first of all, I'm glad as an evangelical myself that she's an evangelical. But being an evangelical, as Judge Hecht has repeatedly said this week, tells us absolutely nothing about her judicial philosophy.

You can be an evangelical and you can be self-prescribed pro- life. But it doesn't tell us what she will do about a decision like Roe that has been set in stone now for over 30 years. And, Chris, that's the rub.

Senator Graham mentioned, you know, that he was happy that the president nominated a woman. And I assume the insinuation there was that some of us are opposing her because she's a woman. That's outrageous. I would love to have a woman on the court, another woman on the court, a woman that has a judicial record on these issues.

Look, the bottom line here is very clear, and I think people need to understand why so many conservatives have reacted the way they have. For a long time, ever since Judge Bork, the worst elements in the Democratic Party have been in charge of the confirmation process in the United States Senate, and they have intimidated a whole series of Republican presidents to not nominate people with clear judicial records. And people are hungry...

WALLACE: Are you saying they intimidated George W. Bush?

BAUER: Well, he'll have to explain the appointment himself. But look, the bottom line is the bottom line. There was a whole list here, 20 or more well-qualified people with records on the big issues of the day that he could have nominated. But if he had nominated them, Ted Kennedy and Schumer and the rest of them would have gone nuts.

Many of us say so what. Let's have that debate about these value issues. It's long overdue.

WALLACE: Senator Graham, one of the biggest concerns, and this is what you're hearing here from Gary Bauer, is that this nomination is going to turn out to be another David Souter, nominated by the first President Bush and turned out to be far more liberal than he and a lot of Republicans thought.

President Bush addressed that issue this week. Let's watch.


GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I know her well enough to be able to say that she's not going to change, that 20 years from now she'll be the same person with the same philosophy that she is today.


WALLACE: But Senator Graham, over the years, Harriet Miers has changed her party from Democrat to Republican. She has changed her religion. How can you be so sure she won't change her views on the law?

GRAHAM: Well, when President Bush made this selection, I think two things he remembers from his father's administration — "read my lips" and David Souter. So it's no surprise to me that he chose someone he believes won't change.

He chose someone that he knows to be qualified. He chose someone that he trusts. That's classic George W. Bush. Condoleezza Rice and Karen Hughes are other strong women that the president has relied upon to do important jobs.

Gary's disappointed because he didn't pick a sitting judge. Other people have not picked sitting judges. Clarence Thomas wasn't Clarence Thomas until he got on the Supreme Court. I've got every confidence in the world that President Bush chose who he wanted, not who Gary wanted, not who Lindsey Graham wanted, and nobody made him do it.

He did it because he knows the lady. He trusts the lady. And he thinks she'll be the best person to serve the conservative agenda for the Supreme Court. End of story. And he's not going to be bullied by Schumer, Gary Bauer, Lindsey Graham, Pat Buchanan or anybody else. He's his own man.

And I promise you this: if you give the lady a chance to express who she is — she's a very qualified person who has done a lot of things in the law that we should all be proud of. There's a million lawyers in this country, but there's only one representing the president.

There are thousands of lawyers in Texas, but she's the one chosen by the lawyers in Texas to represent the bar association. And if you don't believe me, ask John Cornyn and Kay Bailey Hutchison, who know the person, who know Harriet Miers, and ask them what they think about this choice.

WALLACE: Justice Hecht, you say that Ms. Miers is pro-life. How do you know that?

HECHT: Just over the years, talking, the fact that she goes to a church that takes an open pro-life stance. You know, it's not something that you sit around talking about all the time.

But again, once you — I can understand that Gary doesn't know her, but there are people who do. And the people who do have come forward this week and said look, this is a very qualified person, a solid person, and you can tell what she thinks.

WALLACE: Let me just follow up on this question of pro-life. Does she regard abortion as murder?

HECHT: Well, I don't know that we've ever talked in exactly those terms. But she is pro-life. I mean, you press around it all you can, but she is pro-life, and she has been for 25 years.

WALLACE: If she does believe that, Justice, how could she possibly vote to uphold Roe v. Wade, if she believes that abortion is murder?

HECHT: Because it's easy. Legal issues and personal issues are just two different things. Judges do it all the time. In fact, a judge is going to take an oath that says I'm going to judge rightly in cases, which means that you have to set aside your personal views in deciding the case. And if you don't do that, you're either a bad believer in your views, a bad judge or both.

BAUER: Look, I'm confused here. I can't tell whether Judge Hecht is arguing that she is going to overturn Roe or she's not going to overturn Roe. If he wants to reassure his fellow pro-life conservatives, that's the last argument he should be making, the argument that he just made.

He said he hasn't talked to her about Roe. The fact of the matter is for over 20 years of her being involved in the law, she has not written one word, said one word, given a speech, written a letter to the editor on any of the key constitutional issues that conservatives care about and are worried about and want to make sure the court does not go down the road on.

He said he knows her. Lots of people have come forward this week that know her, and a number of them have said I can't label her a conservative, a liberal or a moderate, I often couldn't figure out how she was going to vote. She sounds a lot like me like another swing vote, which was the last thing we were expecting a conservative president to give us.

WALLACE: Senator Graham, I want to pick up on this question of the lack of a so-called paper trail. The president indicates that he will almost certainly refuse to hand over any of her White House papers during her five-plus years there in the White House.

But given the fact that she has, I think we'd all agree, almost no record on constitutional issues and that it's become clear that in the Judiciary Committee hearings these nominees have learned basically to duck every issue, should an exception be made here to turn over some of her papers so you can find out, you, all of the 100 members of the Senate, what exactly it is that you're getting?

GRAHAM: I would advise the president not to destroy attorney- client privilege. And to say she has got no record on constitutional issues — you don't understand what the general counsel to the president of the United States does. You don't understand what the person advising the president on judicial selections does.

She has a record in terms of the Bush administration's position on every constitutional issue. Before she became the general counsel to the president of the United States, she had a very distinguished legal career. She was one of the top 50 women in the law.

The bottom line is the president knows her the best. The president has sought her counsel for a decade and has been pleased with the advice. He's a conservative president pushing conservative policies and his lawyer, he believes, is a conservative.

Whether anybody else knows her as well as the president maybe is the debate here. I don't. Gary doesn't.

And those who are the keeper of the conservative flame may be disappointed for the short term, but I think over time, you're going to see this pick to be classic George W. Bush: "When times are tough, I pick somebody I know, somebody I can count on."

And he can get advice from everybody. We got advice about Sandra Day O'Connor. That didn't turn out the way we wanted. Pro-life — I hope she'll tell the world she's pro-life. I hope she will embrace that she's an evangelical Christian without apology. You can be pro- life, you can be evangelical Christian and you can still be fair, and we need to address that in this nation.

And I hope she'll come forward in the hearing and say I'm a Christian, I'm proud of my faith, I'm pro-life, but I will give every American their day in court and not take that right away from them because of my beliefs.

WALLACE: Justice Hecht, we've got less than a minute left, and I just want to ask you one last question.

HECHT: Right.

WALLACE: The chairman of the Judiciary Committee, Republican Arlen Specter, says that your friend, Ms. Miers, is going to need a crash course in constitutional issues.

Does she realize that she's got a lot of studying up to do, and can she learn about all the Supreme Court precedents, all of this in the course of just about a month?

HECHT: Well, she already knows a lot about it. As I say, she's been working with these issues in general counsel's office for the White House, so she'll be prepared for those hearings.

But she is already familiar with these, but she does not have an agenda. And if Gary or others want her to come in with an agenda — Chief Justice Roberts didn't have an agenda. He won't say. Any good judge is not going to say I'm going to rule this way or that way in a particular case.

But she comes in and will come in very well prepared on these issues and all of the questions that the committee is going to ask her, and I think she looks forward to those hearings.

WALLACE: Justice Hecht, Senator Graham, Mr. Bauer, we want to thank you all very much for joining us today. A lot more to talk about.