On Miers: Democrats happy, Republicans leery

Published October 4, 2005

WASHINGTON - President Bush's surprise nomination of White House counsel Harriet Miers to the Supreme Court scrambled the political landscape on Monday. Democrats were remarkably warm, and conservatives were unusually cool.

The upside-down politics had Democrats calling her "a trailblazer for women" and conservatives asking if she might be too liberal. Both sides were uncharacteristically vague because Miers, a former corporate lawyer and longtime Bush aide, has little public record.

The White House rushed to reassure Republican supporters that the nominee would embrace Bush's philosophy of judicial restraint.

Vice President Dick Cheney appeared on radio talk shows and said he expected Miers would vote like Justices Antonin Scalia and Clarence Thomas, the most conservative members of the court.

"You'll be proud of Harriet's record, Rush," Cheney said on Rush Limbaugh's nationally syndicated show. "Trust me."

Conservatives had been hoping the president would pick someone with more clearly articulated views on issues such as gay marriage and abortion, and whose conservatism would be strident and unabashed.

While some, including Dr. James Dobson, founder of Focus on the Family, all but endorsed Miers on Monday, other national conservative leaders withheld their praise.

Tony Perkins, president of the Family Research Council, which has endorsed the president's nominees, said he planned to "wait and see." So did Republican Sen. Tom Coburn, a leading conservative from Oklahoma, and Jan LaRue, chief counsel for Concerned Women for America, a Christian group that fights abortion and gay rights.

"I regret that we couldn't come out of the box whole-heartedly endorsing a known nominee," LaRue said. Although Miers has done a good job for the president, "that doesn't in and of itself mean she's the best qualified person to be nominated to the Supreme Court. There are so many known people who could have been nominated."

LaRue and others said they are concerned some liberals are treating her nomination as a victory for their side, and she worried the president picked Miers to avoid a fight over a more conservative choice, like circuit court Judges Edith Jones, Priscilla Owen or Janice Rogers Brown.

"It sounds like there's a lot of politics at play here," LaRue said.

Legal analysts were perplexed by the choice and questioned whether Miers, who formerly headed a Dallas law firm, had the credentials for the nation's highest court.

"This certainly smacks of cronyism," said Jonathan Turley, a law professor at George Washington University. "The most outstanding characteristic of this appointee seems to be her long association with the president."

Bush has often named his closest aides to higher jobs, but the timing of this choice is surprising. The administration is still trying to shake off the criticism it faced in the aftermath of Hurricane Katrina, when the federal response was widely deemed insufficient and the head of the Federal Emergency Management Agency resigned amid questions about his qualifications for the job.

A.E. Dick Howard, a law professor at the University of Virginia, said many highly regarded Supreme Court justices, including Earl Warren and Lewis Powell, had never been judges.

But they "proved themselves before they came to the court" - Warren as governor of California and Powell as head of the American Bar Association.

He said Miers "has done some credible things, but they don't catapult her to the national stage."

Miers, who has an undergraduate degree in mathematics from Southern Methodist University, is known at the White House as a stickler for details. Howard said, "The question is, can she rise from the world of detail to the grand ideas of the Constitution?"

Mary Cheh, a law professor at George Washington University, said Miers' lack of judicial experience has advantages. She does not have a record that Democrats can attack, and she may seem more down to earth.

"She has some features about her that are O'Connor-esque," said Cheh, referring to Sandra Day O'Connor, the justice Miers would replace. "She appears to be more grounded in everyday experiences than the other people who serve on the court."

Liberal groups also took a wait-and-see approach but said the burden will be on Miers to explain her judicial philosophy and her approach to issues such as abortion and civil rights.

Still, while Democrats said it was too early to endorse Miers, they liked that she was not a judge and would bring a fresh perspective to the court.

Senate Minority Leader Harry Reid, the pugilistic Democrat who has led a series of bitter fights with the Bush administration over judicial appointments, was almost effusive, issuing a statement that said, flatly, "I like Harriet Miers."

Later, after meeting with her for an hour, Reid and Miers stood side by side for the cameras while he praised her past experience as a litigator, rather than as a judge.

"Anyone who has that background makes me feel good," Reid said. "I'm very happy we have someone like her."

Sen. Charles Schumer, D-N.Y., another senior member of the Judiciary Committee who has led his party's fight against the president's most conservative nominees, including Roberts, said Miers would be thoroughly scrutinized.

But he said she was a far better choice than many liberals had expected.

"It could have been a lot worse," Schumer said.

Even if she's confirmed, it won't be without a fight. Almost as soon as she was nominated, Democrats began agitating for complete access to her memos and opinions, which the Bush administration almost certainly won't grant.

As White House counsel, almost anything she wrote could be considered part of the attorney-client privilege, setting up a situation where Democrats can claim they have little idea about how she thinks or makes decisions.

Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, acknowledged that may become an issue, but said she also made plenty of speeches. Although Senate Majority Leader Bill Frist, R-Tenn., said he would like to vote on her nomination by Thanksgiving, Specter said that may not be feasible.

"To the extent we can accommodate your timetable we will, but not at the expense of being thorough," he said.

Miers is well known to many senators, especially on the Judiciary Committee, from her work in assisting judicial nominees. Recently, she had been calling senators to ask their thoughts about the nominee for O'Connor's spot.

Schumer said he got that call from Miers a week ago. He asked her whom the president was considering, and ticked off a few names.

"I said, "Are they thinking of you?"' Schumer recalled. "And she said nothing."