President Bush’s decision to make White House counsel Harriet Miers his second Supreme Court nominee is causing some strange friction in the Senate, with some Republicans unsure about her conservative credentials and some Democrats seemingly supporting her.
The mixed signals create some uncertainty about how Miers will be received as the Senate Judiciary Committee prepares for another round of confirmation hearings before the end of the year.
Bush portrayed Miers, who never has been a judge, as a strict constructionist, someone who “will strictly interpret our Constitution and laws.”
“She will not legislate from the bench,” the president said Monday as the 60-year-old former private attorney stood with him in the Oval Office.
“If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution,” said Miers, who has worked on previous judicial nominations with many of the same senators who now will judge her candidacy.
She immediately began visiting senators in the Capitol, meeting with Judiciary Committee Chairman Arlen Specter, Senate Majority Leader Bill Frist and Senate Democratic leader Harry Reid, all of whom had words of praise for her.
Reid said he likes Miers and adding “the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer.”
At the same time, he said he looked forward to the “process which will help the American people learn more about Harriet Miers, and help the Senate determine whether she deserves a lifetime seat on the Supreme Court.”
Frist is pushing to have Miers confirmed by Thanksgiving, a compressed schedule. “She has demonstrated her leadership, her character, her integrity,” said Frist, R-Tenn., who harbors presidential aspirations in 2008.
Bid to reassure conservatives
In a round of television interviews Tuesday, White House counselor Dan Bartlett sought to reassure conservatives who have expressed concern that Miers might not be conservative enough for their tastes because she had no strong record on hot-button issues like abortion and gay rights.
Bartlett told NBC’s “Today” show that Miers shares the president’s judicial outlook but added that Bush had not asked Miers her views on issues like abortion or gay rights. “President Bush thinks it’s very important not to impose a litmus test on judicial candidates,” Bartlett said.
Tony Perkins of the Family Research Council said conservatives put great weight in Bush’s judgment but they would have preferred a nominee with a documented conservative track record. The president’s recommendation “gives us some level of comfort but that has to be combined with some evidence,” he told MSNBC.
Perkins did not take a position on the nomination and said he will be looking for clues to her judicial philosophy during the confirmation hearings.
With Miers’ selection, Bush was looking to satisfy conservatives who helped confirm Chief Justice John Roberts — without inflaming Democrats who repeatedly warned against the selection of an extreme conservative to succeed Justice Sandra Day O’Connor, who has voted to uphold abortion rights and preserve affirmative action.
It seems he has done both, somewhat. Quite a few GOP senators praised Miers, just as they praised Roberts when his nomination was announced by the president.
“My conversations with Harriet Miers indicate that she is a first-rate lawyer and a fine person,” said conservative Sen. Jeff Sessions, R-Ala., a former prosecutor whose nomination to the federal court was stalled by Democrats.
Added Specter, R-Pa., an abortion-rights moderate, “Everything I know about Ms. Miers is good.”
Democrats said Miers, with no judicial record, will need to answer more questions than Roberts did during his confirmation hearing. Most of her paperwork from her White House days will not be available to the Senate because it falls under executive privilege or lawyer-client privilege.
“If there ever was a time when the hearings are going to make a huge difference, it’s now,” said Sen. Charles Schumer, D-N.Y.
Limbaugh challenges Cheney
At the same time, the White House worked aggressively Monday to allay concerns over Miers among conservatives determined to turn the court to the right.
Radio commentator Rush Limbaugh repeatedly challenged Vice President Dick Cheney on why Bush chose Miers over other nominees whose conservative credentials were more clearly based on long records as judges. But by day’s end the White House trumpeted favorable comments from Focus on the Family chairman James Dobson, among other prominent conservatives.
Kyleen Wright, president of an anti-abortion group then known as Texans United for Life, said in an interview that Miers donated $150 to the organization as a “bronze patron” for its annual dinner in 1989.
But Sen. Sam Brownback, R-Kan., an anti-abortion senator who is considered to be a 2008 presidential candidate, wasn’t so sure. “I have said in the past that I would like a nominee with a proven track record on important issues to all Americans and whose judicial philosophy is well-formed, he said. “I am not yet confident that Ms. Miers has a proven track record.”
Sen. John Thune of South Dakota, one of the conservatives newly elected to the Senate in 2004, said he also was reserving judgment.
“It has been my expectation that President Bush would nominate someone in the mold of Justices (Antonin) Scalia and (Clarence) Thomas and it is my hope that Harriet Miers will prove to be such a person,” he said. Both Scalia and Thomas have voted to overturn the 1973 Roe v. Wade decision that legalized abortion.
Abortion angle
Added Troy Newman of Operation Rescue, an anti-abortion group: “The small pieces of information we do know are disappointing. For example, she’s Southern Methodist, notoriously pro-abortion.”
Little is known publicly about Miers’ position on abortion, an issue of surpassing importance to outside groups on both ends of the political spectrum.
When delegates to a national American Bar Association convention adopted a position in favor of abortion rights in 1992, she worked as head of the Texas state bar to force a reconsideration of the issue by submitting it to a referendum by the 360,000-membership. “This issue has brought on tremendous divisiveness and loss of membership," she said in early 1993.
Miers unsuccessfully argued that the ABA should have maintained its neutral stance on abortion.
White House cites precedent
The president offered the job to Miers on Sunday night over dinner in the residence. He met with Miers on four occasions during the past couple weeks, officials said.
Eager to rebut any charges of cronyism, the White House produced statistics showing that 10 of the 34 Justices appointed since 1933 had worked for the president who picked them.
And 20 Supreme Court justices previously had never served as judges before getting on the high court.
While House spokesman Scott McClellan said the president had seriously considered 12 to 15 contenders for the job. He said more than one Democratic senator had broached Miers’ name to the president, but declined to identify them.
Low-profile nominee
Without a judicial record, it's difficult to know whether Miers would dramatically move the court to the right. She would fill the shoes of O'Connor, a swing voter on the court for years who has cast deciding votes on some affirmative action, abortion and death penalty cases.
Known for thoroughness and her low-profile, Miers is one of the first staff members to arrive at the White House in the morning and among the last to leave.
When Bush named her White House counsel in November 2004, the president described Miers as a lawyer with keen judgment and discerning intellect — “a trusted adviser on whom I have long relied for straightforward advice.”
Miers had been leading the White House effort to help Bush choose nominees to the Supreme Court, so getting the nod herself duplicates a move that Bush made in 2000 when he tapped the man leading his search committee for a vice presidential running mate — Dick Cheney.