President Bush’s nomination of his White House counsel, Harriet Miers, to replace Justice Sandra Day O’Connor on the Supreme Court fits a pattern that other presidents have sometimes followed: choose a close friend and political factotum to serve on the high court.
Franklin D. Roosevelt chose his friend Attorney General Robert Jackson in 1941 to serve on the high court, after having chosen his poker buddy and SEC chief William O. Douglas to serve on the court in 1939.
In 1862, Abraham Lincoln picked his friend and political strategist David Davis, who'd helped him win the presidency. And in 1965 Lyndon Johnson selected his attorney and longtime adviser Abe Fortas.
Now Bush has picked a woman who for years has served as his personal attorney and as a White House official. She is the first Supreme Court nominee since William Rehnquist in 1971 to never have served as a judge.
This nomination is an historic gamble by a president whom his Democratic adversaries see as gravely weakened. The nomination risks alienating the conservative base to whom Bush has long promised a genuinely conservative nominee, along the lines of Justices Clarence Thomas and Antonin Scalia.
Replacing O'Connor with a conservative such as Thomas or Scalia would inevitably push the court to the right. That’s exactly what the Left feared — and what the Right hoped for.
But it is hardly clear whether Miers will be another Thomas or Scalia. At first blush it appears Bush was reluctant to confront Democratic senators with a nominee such as federal appeals court judge Michael Luttig who has a proven record of conservatism on the bench.
Key Democrat sounds happy One of the president's Democratic adversaries, Sen. Charles Schumer, D-N.Y., sounded pleased Monday that Bush had not chosen a clearly defined judicial conservative for the O'Connor spot.
"It could have been a lot worse," Schumer said. "The extremists in the president's party clearly wanted him to nominate somebody who had already enunciated their views on issue after issue — and the president did not"
And that, Schumer implied, was in itself a victory for the Democrats. Miers, he said, "clearly has the potential to be a consensus nominee."
Schumer said last week that the president was in a weakened position due to the war in Iraq, high gasoline prices and Hurricane Katrina. “The president and the Republican Party are not in as strong a shape today as when they made the first (Roberts) nomination,” he said.
Floated last week, the idea that Bush might nominate Miers to the high court did not spark immediate enthusiasm from one conservative legal scholar, John Eastman of the Center for Constitutional Jurisprudence at the Claremont Institute in Claremont, Calif.
"If he wants to give her judicial experience why doesn't he nominate her to the Fifth Circuit (Court of Appeals)?" asked Eastman in exasperation last Thursday. Eastman is a former law clerk to Justice Thomas.
Unhappiness from the right
Only minutes after Bush appeared at the White House Monday to announce the nomination, Manuel Miranda, a conservative strategist and former aide to Senate Majority Leader Bill Frist issued a scathing statement: "The reaction of many conservatives today will be that the president has made possibly the most unqualified choice since Abe Fortas, who had been the president's lawyer. The nomination of a nominee with no judicial record is a significant failure for the advisers that the White House gathered around it."
While cautioning that "the president deserves the benefit of a doubt," Miranda added, "Something has been left unachieved by the Miers nomination. A Republican president has yet to erase the stigma of the (1987) Robert Bork hearings and the David Souter nomination (in 1990) . The nomination of Harriet Miers has not rid us of the repugnant situation that a jurist with a clear and distinguished record will not be nominated for higher service. The nomination did not rid us of the apprehension of stealth nominees."
Conspicuous by his silence Monday was one of the most conservative members of the , Sen. Sam Brownback, R-Kan. Last week Brownback had urged Bush to not be timid: “The president won the election. He campaigned on this. People know where we stand on this and they agree.”
Brownback laid down his own marker last week saying that from the new nominee, “I would very much like a greater assurance on an openness to reviewing Roe” than he’d heard from Roberts during his hearing. And, for Brownback, “reviewing” the 1973 Roe v. Wade abortion decision means eventually curtailing or overturning it.
Another social conservative who serves on the Judiciary Committee, Sen. Tom Coburn, R-Okla, issued a terse statement Monday afternoon, saying, "I look forward to learning more about her qualifications and judicial philosophy in the coming days.”
"I would ask everyone not to prejudge the nominee," said Sen. John Cornyn, R-Texas, about 90 minutes after Bush revealed his choice. Cornyn has been a stalwart defender of Bush's judicial nominees. "I would ask everyone to take a deep breath, to look at her background and qualifications and to give her a chance before the Judiciary Committee."
Cornyn added, "She's obviously not a Scalia or a Thomas." But Cornyn dismissed suggestions that Democrats had intimidated Bush into not selecting a genuine conservative. "This president is not going to be intimidated ... People who are perhaps jumping to conclusions about what kind of nominee she would be really should wait and not prejudge."
A ‘safe choice’ candidate?
At first glance, Miers record does not give the Democrats a clear ideological target. Her views on abortion, gay rights and the death penalty may not be deeply held and, for now, remain unknown.
Asked after meeting with Miers for an hour Monday whether she had any views on detainees at Guantanamo, the death penalty or other high-profile constitutional issues, Judiciary Committee chairman Sen Arlen Specter, R-Pa., said, "I do not think she has taken positions on those issues. .... Her practice has not involved any of those issues."
He seemed to imply that Miers might need time to become conversant with those issues: "One of the things I talked to her about was the complexity of the Supreme Court nomination hearing, because there are a lot of complicated issues.... I said to her, 'take a look at the situation and make an evaluation as to what time you need.' It is as much a matter of what time Miss Miers needs as it is to how much time senators need."
A $1,000 contribution to Al Gore
One thing that is documented is Miers's political contributions. Miers has donated thousands of dollars to Republican candidates during the past 15 years, including to President Bush's campaigns. But in 1988, Miers contributed $1,000 to Al Gore's campaign for the Democratic presidential nomination.
She also donated to the Democratic National Committee in 1988 and to Sen. Lloyd Bentsen, a Texas Democrat, in 1987, according to the Federal Election Commission and the Center for Responsive Politics.
Last week, Walter Dellinger, a leading Democratic lawyer and former top official in the Justice Department in the Clinton administration, raised the specter of an "illegitimate" confirmation.
Dellinger said, “I am quite worried that we may be headed for a train wreck, if someone were nominated who would provoke a filibuster” and then the Senate voted to ban judicial filibusters.
“I would hate to see us enter a legitimacy debate about whether a justice was properly confirmed or not… with reverberations back to the 2000 election. That would be a most unfortunate train wreck,” Dellinger added.
It remains to be seen whether such threats from the Democrats intimidated Bush into choosing a non-ideological nominee or whether Miers will turn out to be a committed judicial conservative in the mold of Thomas and Scalia.