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Miers cited Native Hawaiian work before withdrawing
Friday, October 28, 2005

Before she withdrew her U.S. Supreme Court nomination on Thursday, White House counsel Harriet Miers told a Senate panel that she advised President Bush on Native Hawaiian recognition.

In a supplemental questionnaire submitted to the Senate Judiciary Committee, Miers left off references to the Indian Gaming Regulatory Act and tribal sovereignty. She had previously claimed knowledge of both when asked about her experience with constitutional issues.

But in response to criticism that her earlier answers were incomplete, Miers provided some new information, although it wasn't particularly detailed either. She listed her work on Native Hawaiian recognition, an issue of dispute within the Bush administration.

As chief legal adviser to the president, Miers wrote that she dealt with "Issues concerning whether Congress may treat Native Hawaiians as an Indian Tribe, and therefore afford them special benefits without running afoul of the equal protection component of the Fifth Amendment's Due Process Clause." It was the second item on her list.

The response confirms the White House's involvement in the Native Hawaiian recognition controversy. Administration officials have raised doubts about the legality of a bill that would treat Native Hawaiians in a manner similar to American Indians and Alaska Natives but the White House, until very recently, kept its views out of the spotlight.

At the same time, Miers didn't resolve a key question. She failed to detail her stance on Native Hawaiian recognition despite being asked directly by the Judiciary panel to explain "the positions you took related to those issues."

"This question was designed to help the committee learn more about your experience with constitutional law, and if most of it was gained during your years in the White House, it is important that we know more about the specifics of that experience," the committee had written.

Now that Miers has withdrawn her nomination, her views on the subject and how they may have influenced the White House remain unknown. She dropped out of the process yesterday, citing Senate demands for more information about her work for Bush.

"I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy," Miers said in a letter to Bush.

"It is clear that Senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a President's ability to receive candid counsel," Bush responded.

Bush added that he would nominate another Supreme Court justice "in a timely manner" but gave no hint on who he might pick or when he might make an announcement. He has a responsibility to fill the vacancy left by Associate Justice Sandra Day O'Connor, who announced her retirement in July.

O'Connor has said she will remain on the court until a replacement is confirmed. She could decide to leave before that happens, according to Supreme Court experts, although that is less likely now.

The Miers nomination posed potentially troubling questions for Indian Country due to her view on gaming. As head of the Texas Lottery Commission in the 1990s, she supported efforts to limit electronic gaming machines. The Bush administration is now proposing to place the same limits on the Class II tribal casino market.

During the 1990s, Texas officials also argued that two tribes in the state lacked full sovereignty. Although it isn't clear whether Miers played a role in litigation against the tribes, she had clamed to have experience with tribal immunity issues in her first Senate questionnaire.

The updated questionnaire gave hints to even more controversy on Indian issues. Since the Bush administration came into power in 2001, officials have raised numerous questions about Native Hawaiian programs. In late September, the administration finally said it wouldn't support the Native Hawaiian recognition bill, citing "unresolved" constitutional issues that Miers referenced.

The bill remains tied up in the Senate amid attempts by Sen. Daniel Akaka (D-Hawaii), its main sponsor, and Gov. Linda Lingle, a Republican, to come to a compromise with the administration and Republican critics.

Meanwhile, two Native Hawaiian cases are making their way to the Supreme Court. The 9th Circuit Court of Appeals has struck down the admissions policy of a Native Hawaiian-only school and has authorized lawsuits to block the funding of Native Hawaiian programs.

Native Hawaiian advocates, supported by tribes and Alaska Natives, say passage of the recognition bill would end the legal challenges. They say Native Hawaiians deserve special status as indigenous people.

As an attorney in private practice, Chief Justice John G. Roberts Jr., Bush's nominee, made that same argument to the Supreme Court on behalf of the state of Hawaii in Rice v. Cayetano. But he lost the case by a 7-2 vote in February 2000. O'Connor was among the justices who held that restricting an election to Native Hawaiians violated the U.S. Constitution.

Akaka, the sponsor of the Native Hawaiian Government Reorganization Act, said yesterday that he respected Miers' decision to withdraw. He didn't specifically mention the recognition issue, but said, "I am hopeful that President Bush will fill the Supreme Court vacancy with a well-qualified individual who embodies the diversity of America."

Second Miers Senate Questionnaire:
PDF

First Miers Senate Questionnaire:
Text | PDF

Native Hawaiian Recognition Bill:
Native Hawaiian Government Reorganization Act of 2005 (S.147)

Relevant Links:
Judicial Nominations, White House - http://www.whitehouse.gov/infocus/judicialnominees