Interpretations Differ After Talks With Miers

Times Staff Writers

Senate Judiciary Committee Chairman Arlen Specter emerged from a lengthy meeting Monday with Supreme Court nominee Harriet E. Miers saying she told him she believed that the Constitution includes a right to privacy -- an account of the meeting that was later disputed.

“She said she believes there is a right to privacy in the Constitution,” the Pennsylvania Republican told reporters after a meeting with Miers that lasted 1 hour and 40 minutes. He said in particular that she supported the Supreme Court’s decisions in Griswold vs. Connecticut and Eisenstadt vs. Baird, two cases that established a right of privacy for married and unmarried couples to use contraception.

The right to privacy enshrined in those cases was the foundation for the 1973 Supreme Court decision in Roe vs. Wade, which established a woman’s right to end a pregnancy. Since then, legal discussions of privacy rights often have served as a proxy for the constitutionality of a right to abortion.

Specter said he considered Miers’ comments “relevant but not determinative” of how she might rule on abortion issues should she win confirmation to the high court.


Later Monday evening, White House officials said that Specter had misunderstood Miers and that a statement would be issued.

“In their meeting this afternoon Sen. Specter thought Ms. Harriet Miers said she agreed with Griswold v. Connecticut and there was a right to privacy in the Constitution,” Specter spokesman William Reynolds wrote in an e-mail to reporters. “After Sen. Specter commented on that to the news media, Ms. Miers called him to say that he misunderstood her and that she had not taken a position on Griswold or the privacy issue. Sen. Specter accepts Ms. Miers’ statement that he misunderstood what she said.”

The Constitution does not contain an explicit protection for privacy, and scholars differ over whether a privacy protection is implicit in other rights. In recent years, most have said they believe the Constitution does protect privacy.

All the same, Specter’s initial assertion was expected to raise new alarms among social conservatives who have mounted unexpectedly fierce opposition to Miers’ nomination, saying they would prefer a nominee with a clearer antiabortion record.

White House officials launched a new strategy Monday to overcome opposition to Miers by trying to take the focus off her past -- and her lack of judicial experience -- and draw attention instead to her qualifications.

“We’re looking forward now, with an understanding of the importance of the decisions that will be made -- whether she’s qualified to serve on the Supreme Court; and that’s based on her qualifications, her experience and her temperament,” said a senior administration official involved in the effort.

White House officials denied that aides to the president organized or took part in a telephone conference call on Oct. 3, the day of her nomination, in which two confidants of Miers were alleged to have said that she would vote to overturn Roe vs. Wade. The conference call was first reported Monday in an opinion article by John Fund in the Wall Street Journal.

“This was not a call organized by the White House, and as far as I’ve been able to learn, no one at the White House was involved on that call,” White House spokesman Scott McClellan said.


“We don’t know what her positions will be on future cases because we don’t have a litmus test, and we don’t ask those questions.”

Bush continued to advocate for Miers’ nomination personally, meeting in the Oval Office with six former justices of the Texas Supreme Court. Sponsored by the conservative advocacy group Progress for America, they traveled to Washington to endorse Miers’ nomination.

At the end of the meeting, Bush said, “Harriet Miers is a uniquely qualified person to serve on the bench. She is smart, she is capable, she is a pioneer.

“She’s been consistently ranked as one of the top 50 women lawyers in the United States,” he added. “She has been a leader in the legal profession. She’s impressed these folks. They know her well. They know that she’ll bring excellence to the bench.”


Bush’s comment on her ranking was an apparent reference to a list published in the National Law Journal, a legal newspaper. In 1998, Miers was named one of the 50 most influential female lawyers, in large part because of the posts she held as head of the Texas Lottery Commission and as the personal attorney for Bush, then the state’s governor.

Meanwhile, Miers made her own case for a seat on the Supreme Court in three meetings Monday with members of the Judiciary Committee.

Sen. Charles E. Schumer (D-N.Y.) said Miers said little of substance during their meeting.

“Based on what I heard in the office, I couldn’t tell you how I would vote on Harriet Miers because she offered very, very little,” he told reporters afterward.


In particular, he said that she declined to discuss any Supreme Court cases.

“Let me say this: My first conversation with [newly confirmed Chief Justice] John Roberts was much more illuminating than this conversation was,” Schumer said.

Specter’s account of his meeting with Miers provided a sharp contrast, with the committee chairman saying they discussed many Supreme Court cases. And he said Miers had agreed to discuss at least some of her work in the White House, a topic that administration officials previously had said was off-limits.

He emerged from the meeting, Specter said, with a clearer idea of her views than he had after his meeting with Roberts.


Miers also met with Sen. Dianne Feinstein (D-Calif.), who provided no details of their discussion, saying she thought it was fairer to let the nominee speak for herself during the confirmation hearings.

“I asked a number of questions and she did answer them,” Feinstein said. “But the key is to ask the questions in public.”

The senators also expressed concern about accounts of the Oct. 3 conference call, in which two of Miers’ friends, Texas Supreme Court Justice Nathan L. Hecht and U.S. District Judge Ed Kinkeade, were alleged to have told conservative religious leaders that Miers would vote to overturn Roe vs. Wade.

Schumer said he asked Miers about the report.


“She said, ‘Nobody knows my views on Roe v. Wade,’ ” Schumer said. “She said, ‘No one can speak for me on Roe v. Wade.’ ”

Since 1987, all Supreme Court nominees selected by a Republican president have said they believe that the Constitution created a right to privacy. That year, the Supreme Court nomination of Judge Robert H. Bork was rejected after he told senators he believed there was no right to privacy in the Constitution.

That comment lost him the votes of key senators, including Specter, who favors abortion rights.



Times staff writers David G. Savage and Richard A. Serrano contributed to this report.