Saturday, June 23, 2007

Composition of the Court & the NSA Terrorist Surveillance Program

The controversy over the NSA terrorist surveillance program may actually have some connection to the current composition of the Court as it stands right now.

Recall that nearly a year and a half ago White House Legal Counsel Harriet Miers withdrew her nomination. The reasons given for her nomination were quite vague. While many speculated that she did not want to participate in a confirmation process which would cause both political parties much anguish, there was also one other factor. A quick read of her letter withdrawing her name from the nomination process sheds light on the fact that the White House may have been trying to prevent the public from perusing confidential documents, perhaps regarding the NSA terrorist surveillance program. The text of her letter reads:

Dear Mr. President:

I write to withdraw as a nominee to serve as an associate justice on the Supreme Court of the United States. I have been greatly honored and humbled by the confidence that you have shown in me, and have appreciated immensely your support and the support of many others. However, I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country.

As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. 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. While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue.

As I stated in my acceptance remarks in the Oval Office, the strength and independence of our three branches of government are critical to the continued success of this great nation. Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.

I share your commitment to appointing judges with a conservative judicial philosophy, and I look forward to continuing to support your efforts to provide the American people judges who will interpret the law, not make it. I am most grateful for the opportunity to have served your administration and this country.

Most respectfully,

Harriet Ellan Miers

While there is no conclusive proof of what these documents were, it remains interesting to speculate that these documents contain secrets about the NSA terrorist surveillance program.

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