In President Bush’s battle to convince conservatives to back Supreme Court nominee Harriet Miers, Thursday is a key day and Kansas Republican Sam Brownback is a crucial senator.
A leading social conservative, a member of the Senate Judiciary Committee, and a potential 2008 GOP presidential hopeful, Brownback is preparing to interview Miers Thursday afternoon in his office.
If any Republican in the Senate were going to lead a revolt against the Miers nomination, it would seem to be Brownback.
Her nomination, Brownback acknowledged in an interview Wednesday night, has been an undeniable disappointment to the conservative movement.
“What I was hoping for was (Judge Michael) Luttig (of the U.S. Court of Appeals for the Fourth Circuit). (Fifth Circuit Judge) Priscilla Owen, you don’t have as much of a record, but you have some. (Fifth Circuit Judge) Edith Jones, you have a much clearer record," he said.
"That’s what I was hoping, that we would get that sort of nominee, where there’s no guessing game about this, because you have that written record.”
Fear of nominee veering left
Brownback said he feared a nominee who, once on the high court, “would start out conservative, but then veer left.” He didn’t identify any examples but Ronald Reagan appointee Anthony Kennedy and Gerald Ford nominee John Paul Stevens fit his description.
On Monday, Bush nominated Miers, his White House counsel, to replace retiring Justice Sandra Day O'Connor on the high court.
“There was missed opportunity here,” Brownback lamented. What was lost was the chance to educate the country, if for example, Bush had nominated someone such as Luttig who has 14-year record of judicial decisions or Jones who has served for 20 years on the federal appeals court.
With “a person like a Luttig or Jones you can have a discussion with the country about the key issues because there’s a record. You can have a discussion about (the right to) life, God in the public square, you can have that sort of debate with the nation. I don’t think we are going to have that (with Miers nomination) because you’re going to have the same sort of non-answers to cases that we’ve seen in recent nominees.”
In his meeting with Miers on Thursday, Brownback said, “I hope to learn something about her heart… I’m going to try to make some determination as to who she is, the character of her soul.”
One case he plans to ask her about is Griswold v. Connecticut, the 1965 decision which upheld the right of married couples to use contraceptives. Chief Justice John Roberts said during his confirmation hearing that Griswold v. Connecticut was settled law.
“I’d love to have her say Roe v. Wade is unconstitutional; I am doubtful that that is going to happen,” he said, referring to the 1973 decision legalizing abortion.
As of late Wednesday, no Republican senators had stood up in opposition to Miers.
One Republican member of the Judiciary Committee who met with Miers Wednesday, Sen. Mike DeWine of Ohio, said after the meeting that she was "an excellent pick" for the Supreme Court and that he was "very, very impressed" by her, describing the White House counsel as "tough as nails and very independent."
Bush showing the white flag?
But other GOP senators remained guarded in their reactions.
Emerging from the Republican senators’ weekly policy meeting Wednesday afternoon, Sen. John Thune, R-S.D. told reporters that grassroots conservatives were asking why Bush would “show the white flag when having a fight would really energize and motivate our supporters? And especially if you look at the politics of 2006, I think our folks were really ready for a fight. I think a Left v. Right fight is something that helps us. I think an internecine Right v. Less Right fight is something that doesn’t help us.”
That said, Thune added “a lot of folks are giving him (Bush) the benefit of the doubt and I think we have to do that until we hear more from her” during the Judiciary Committee hearings and in her one-on-one meetings.
“For conservatives out there, she is going to have to be very forthcoming in front of the committee to give them the confidence they need that she truly is going to be a judge in the mold of (Justice Antonin) Scalia and (Justice Clarence) Thomas,” he added.
Thune indicated some conservatives were still bewildered by the president’s nomination, given the large pool of highly accomplished conservative judges and scholars such as Luttig whom Bush — and Miers as head of his judicial selection team — chose to forego.
“Everybody would like to see a known commodity and there were a whole bunch of them on the bench that a lot of folks were saying, ‘Well, why wasn’t it a Luttig or a Priscilla Owen or Janice Rogers Brown, somebody that we know?” Thune said.
Brown serves on the U.S. Court of Appeals for the District of Columbia Circuit.
'A lot of anxiety and uncertainty'
“Conservatives see this (nomination) as having enormous stakes, that’s why there’s a lot of anxiety and uncertainty as to where she’s really going to come down,” Thune said.
Looking to the Judiciary committee’s confirmation hearings on Miers, Thune said “she’s going to have to give a very good insight into her judicial philosophy, whether she’s an originalist, whether she’d exercise judicial restraint. Those hearings are going to be enormously important.”
From the other side of the political spectrum, Democrats and liberal groups active in judicial nominations said they still knew too little about Miers.
“I know zero about her,” said Sen. Joe Biden, D-Del. “This woman does not appear to be like Sandra Day O’Connor but we’ll see — or maybe we won’t see. They may do the stonewall thing like they did with Roberts.”
If the Senate voted down Miers, could Bush send the Senate another nominee more conservative than Miers?
“It’s hard to say the next one would be worse when we know so little about Miers,” said Nan Aron, president of the liberal Alliance for Justice. “President Bush is asking a lot of the American people — maybe too much — to take on his faith his judgment that she’s qualified.”
Trying to build support for Miers was former Republican National Committee chairman Ed Gillespie, who met with GOP senators Wednesday.
“The more people on the conservative side of the spectrum know about her, the stronger her support will get,” Gillespie told reporters.
“The nomination is in strong shape,” he said. “I’ve not heard anyone speculate that she’s not likely to be confirmed.”