Was Harriet Miers Pushed Out or Bowed Out?

This is a partial transcript from "On the Record," October 26, 2005, that has been edited for clarity.

GRETA VAN SUSTEREN, HOST: Harriet Miers — was she pushed out or bowed out and is this fair and right? After a month of attacks from both sides of the aisle, Miers says she is withdrawing due to demands for internal White House Documents.

Joining us live from Dallas is former Texas Supreme Court justice, Craig Enoch. He has known Harriet Miers professionally for 20 years.

Welcome.

CRAIG ENOCH, FORMER SUPREME COURT JUSTICE, TEXAS: Hi, Greta.

VAN SUSTEREN: Was this fair?

ENOCH: No.

VAN SUSTEREN: Why did it happen? Why did she withdraw?

ENOCH: Well, I trust her judgment, and I always have trusted her judgment, and I trust her words today. She was being called upon by some senators to have to reveal some of the writings and documents that she has made while she has served the president in the White House. She felt that that was like asking her to cross the line, the separation of powers, if you will, between the executive branch and legislative branch to require, on her part, to reveal her confidences and advice to the president in exchange for her being considered for the United States Supreme Court.

VAN SUTEREN: You know, not...

ENOCH: And according to Harriet, she just would not cross that line.

VAN SUSTEREN: And I understand that's the sort of publicly stated reason but, I'll tell you, sir, is that a lot of people wonder if, you know, she wasn't sort of shoved and pushed out. Got a lot of heat and never really got a fair chance to have a hearing and to tell, you know, what she could do as a justice.

ENOCH: Oh, I think there are some agendas out there to keep her from having a hearing. Once they begin to find out that she really is a very well qualified, and a wonderful individual and someone who would be a great credit on that court, I think, they wanted to step up the heat and try and drive her out. But, I believe seriously, that she was considering what the Senators were asking her to do, because that, in fact, was her audience. They were the ones that she had to satisfy. They were the ones she had to report to. And she felt they were asking her to cross the line, and that's something she could not do.

VAN SUSTEREN: What don't we know about Harriet Miers that, had she served on the court, would have provided, you know, something for the American people, that they now are not going to have?

ENOCH: Well, it's what I told you last week, when we were visiting, about her. The one thing I have learned about her over the 30 years I've known her, is the great judgment that she exercises, the wisdom that she has, the tremendous common sense. That's what the public would have seen had they had the opportunity for a hearing. That's what the public would have experience had she had the opportunity to serve on the United States Supreme Court.

VAN SUSTEREN: How disappointed do you think she is tonight?

ENOCH: Oh, I know she is personally disappointed, but I think she's at peace with this decision. It was her decision. I'm very disappointed about it. I know the president is very disappointed about it.

But life goes on. We'll wake up tomorrow and we'll get back to work.

VAN SUSTEREN: The members of the media who — the pundits who attacked her and said she was unqualified, do you really think that they understand the job of what a Justice does? Or do they think that they think it's some sort of pop quiz and you have got to know the right answers and not think about it, and look at the issues and study it?

ENOCH: I think some of the pundits had a different agenda than just simply the qualifications. The qualifications were just something they could jump on out there.

Harriet understands the role of the judiciary and that's to decide cases, not make the law. But, I believe, it has become clear in the partisan environment we have, that people actually have seen in the past, the court exercise some policy decisions usurping that of the legislature, and as a result, the politicians are now very interested in what the personal philosophy of the individuals are, and making their decisions based on how they speculate these individuals will decide on policy questions.

We have moved away from what the true role of the court is to kind of a belief that the court is performing some other function.

VAN SUSTEREN: And, I suppose, you don't like that. I don't like that, but I suppose you don't like that either?

ENOCH: I don't like it either. Now, we've the experience here in Texas with the partisanship election of judges. And, for years, I've been out talking to the public about the fact we need to remove judges from the partisan election.

But as I've seen over the course of the last few years, more and more people say, "No, no, no. We want to keep voting for judges." And, I think, a lot of it has to do with what we've seen happening in Washington, D.C., the treating of the candidates for the U.S. Supreme Court more as, "How are they going to rule as politicians than how are they going to rule as judges." And, I think, the people in Texas are insisting, "We are going to keep the right to vote for judges because we want to have a say in their decisions."

VAN SUSTEREN: Justice, thank you, sir, for joining us.

ENOCH: I want to thank you for letting me be here, Greta. Take care.

VAN SUSTEREN: Joining us in Los Angeles is Susan Estrich. Susan clerked in the United States Supreme Court and she has taught constitutional law. She is also the author of the new book "The Case for Hillary Clinton."

Welcome, Susan.

SUSAN ESTRICH, FORMER U.S. SUPREME COURT CLERK AND AUTHOR: Thanks, Greta.

VAN SUSTEREN: Susan, let me ask you the same question I asked Harriet Miers` friend, Justice Enoch. Was this fair?

ESTRICH: Oh, politics is not a fair business and this was politics at its toughest inside the Beltway. The conservative pundits you referred to decided that Harriet Miers was not on their list, that she didn't have a record for ideological conservativism. And the reason the materials you talked about was so important is because she didn't have paper record and they couldn't feel confident that she was going to be a proven ideological conservative on the court.

So they were insisting on those, and, quite frankly, nothing in the papers was going to satisfy them. So they won a huge victory. I mean, you have to hand it to Bill Kristol, and to Robert Bork and to Bob Novak. They said this woman was unacceptable. They were just using qualifications. I think the judge was completely right about that. And they won. They won a big victory.

VAN SUSTEREN: Any problem with that?

ESTRICH: Well, I mean, the problem is that, you know, I mean, they'd probably have a problem if I'd won the big victory the other way.

Do we want judges to have to have ideological records in order to be appointed? I mean, it's a new way of doing judges. And I don't know they would want me exercising an ideological litmus test, and I don't know that we want people having conservatives exercising an ideological Litmus test.

VAN SUSTEREN: But do you ...

ESTRICH: I mean, that's the question. How much power they win depends on who he picks next.

VAN SUSTEREN: But, here is what I object to is that I would, at least, like to have the woman have a hearing so we could see how she thinks, how she looks at the law, whether she has an appreciation for the constitution. All those important things. But this woman never even got to the door.

ESTRICH: Well, you like fiction.

VAN SUSTEREN: And that's what I find, a bunch of people whacking her publicly so that it's — I mean, I think they have sort of a phony excuse that, you know, these papers...

ESTRICH: Sure.

VAN SUSTEREN: ... and she gets shoved out the door. She never got her hearing, never got a date, we'll never know if she was qualified or unqualified.

ESTRICH: But they were very honest. They defined qualifications. If you listen to the conservative pundits, they defined qualifications by saying we want someone — I'm just going to play their side — with a proven ideological record of being a conservative, and this woman doesn't have it. She's just doesn't have it.

VAN SUSTEREN: Here's the draw back. Here's a drawback, though. They don't have the constitutional obligation to pick somebody, the president does.

ESTRICH: No. Well, but the president didn't go along with them and they made it clear that they were going to go have snuff senators, who were on their side, that he wasn't going to be able to push it through.

Now, if this president wants to go back and say, "Ha. Ha. I'm going to, again, pick somebody who's not on your list but I'm going to pick somebody with fancier credentials that you can't touch." Then he could probably get that person through.

The question is, will president do that or will he more likely go back and say, "Give me your list again. Who is on it?" And that's, again, a political issue. But, you know, it's like cursing the sunshine to curse politics in Washington. She was the victim of a president who’s political authority is weakened by the polls, a very emboldened conservative, and the fact that she didn't handle it all that well, as much as...

VAN SUSTEREN: Well...

ESTRICH: ... you know, people like me tried to help her.

VAN SUSTEREN: I don't know whether she would have been a good justice, a bad justice. Whether I would think she was a good justice or bad justice, but I certainly would have, at least, like to her to have had a hearing so we could here from her. But I'll take the last word on that one, Susan. Thank you.

ESTRICH: Thank you.

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