Document dispute snags Miers nomination

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - President Bush said Monday he will not give senators internal White House documents about the work Supreme Court nominee Harriet Miers has done as Bush’s counsel.

To determine whether Miers has the requisite experience dealing with constitutional issues to deserve a job on the court, both Republican and Democratic senators want to explore the work Miers has done on issues such as the detainees being held at the Guantanamo Navy Base in Cuba.

But on Monday Bush said he would not turn over any records of his conversations with Miers that might undermine the confidentiality that he or any president needs to confer with his counsel. “It’s a red line I’m not willing to cross,” Bush said.

The president said senators had asked him for documents that would reveal "the decision-making process, what her recommendations were. And that would breach very important confidentiality.”

Although he did not use the phrase, what Bush was invoking is called the "deliberative privilege," the ability of the White House to withhold documents that reveal closed-door deliberations of the president and his aides.

The purpose of the deliberative privilege is to ensure full and candid discussions within the executive branch prior to the president’s making a decision on a particular policy; without that confidentiality, such discussions might be inhibited by the fear they'd later be made public.

But late Monday Senate Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., told reporters he was negotiating with White House officials to try to reach a compromise in which some documents would be given to the committee.

"We've not asked what advice she gave him. That's the privileged area; we've not asked for that," Specter said. He said that he'd asked the White House for a list of the subject areas that Miers worked on as counsel to the president.

Judiciary Committee counsel Mike O'Neill told reporters that he had a two-and-a-half hour conversation with White House officials on the Miers materials the committee is seeking. Referring to the negotiations, O'Neill said, "Thus far it seems like they are progressing well."

But Specter's statement raised a difficulty: How could the White House turn over truly revealing documents that illustrate the depth of her involvement in major issues such as Guantanamo detainees without violating the deliberative privilege?

Specter repeated statements he has made before: "The whole confirmation process is in her hands. If she does well (in her public testimony) she will be confirmed. It's up to her as to how well she does."

Standoff could scuttle nomination
Bush's statement sets up a standoff that could sink the Miers nomination — because senators might not be able to determine on what issues Miers worked and thus won't be able to figure out on what future cases Miers would need to disqualify herself, if she wins confirmation to the high court.

Due to her work as White House counsel, Miers will face the need to disqualify herself from at least some cases involving Bush or the federal government. The federal statute on disqualification, also known as recusal, requires any justice or judge to not take part “in any proceeding in which her impartiality might reasonably be questioned.”

That same statute says Miers would need to disqualify herself because she “has served in governmental employment and in such capacity participated as counsel (or) adviser... or expressed an opinion concerning the merits of the particular case in controversy.”

Since her appointment as Bush’s counsel in February and prior to that as his deputy chief of staff, Miers has “participated as counsel” and likely has “expressed an opinion” regarding matters, such as the Guantanamo detainee cases, which are now working their way up through the appeals courts for Supreme Court review.

Miers vows to abide by recusal rule
In her response to a Senate Judiciary Committee questionnaire last week, Miers pledged to abide by the letter and spirit of the recusal statute.

In its 2004-2005 term, which ended in June, the Supreme Court handed down 80 decisions. In 20 of the, the federal government or a federal agency was a party. Several others involved federal statutes such as the Americans with Disabilities Act.

Judiciary Committee member Sen. Dianne Feinstein, D-Calif., said late Monday that no previous president had ever nominated somebody from his White House staff to serve on the Supreme Court. "This puts a particular burden on the president to be able to provide the documentation that indicates why she is credentialed and qualified to be a Supreme Court justice," Feinstein said.

Feinstein added, "If she was involved in conversations on torture, on detainees, that kind of thing we'd like to know that, to question her about it," she added.

MORE FROM THE CHANGING COURT

The Changing Court Section Front

On first case, Alito splits with right Alito sworn in as Supreme Court justice Alito lends touch of drama to State of Union Analysis: Why Bush won the Alito fight The Changing Court Section Front   Add The Changing Court headlines to your news reader: