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U.S. Supreme Court

Miers may require a supreme sales job

Discontent among some conservatives may make her road to the high court harder than might have been expected.

By WES ALLISON
Published October 6, 2005

WASHINGTON - From the war in Iraq to Social Security reform, President Bush has always counted on the faith and trust of his conservative base to back his most difficult policies.

But by choosing Harriet Miers for the U.S. Supreme Court this week, and failing to deliver a nominee they believe is guaranteed to advance their philosophy from the nation's highest court, conservative activists say he risks losing their trust, and with it his political success.

As the Bush administration scrambles to build support for Miers, many conservatives activists, lobbyists and some lawmakers are refusing to lend even shallow approval to her nomination. Instead, they are questioning her qualifications and conservative credentials, as well as the president's commitment to hard-fought conservative principles.

The discontent, which gelled Wednesday after three days of e-mails, phone calls and opinion articles, is not expected to derail Miers' nomination altogether. It is highly unlikely that a sizable number of Republican U.S. senators will vote against the president's nominee, and several already have suggested they'll vote for her.

But conservative activists warn the choice could have lasting effects on the president's ability to advance his agenda, especially on issues that force conservatives to compromise their ideals for the good of the party.

Bush is going to need their support to fund the Hurricane Katrina recovery without raising taxes, fully implement the Medicare prescription drug benefit, and revive his plan to overhaul Social Security.

Many say they have paid enough already: The drug benefit is costing far more than advertised, Katrina is sending the budget deficit skyward and the nomination of Miers, the White House counsel, opens Republicans to charges of cronyism. Questions about the war in Iraq aren't getting any easier, either, as America makes what many conservatives consider a dubious stab at nation-building.

In return for their loyalty, conservatives wanted the president to appoint a conservative heavyweight to the spot being vacated by Justice Sandra Day O'Connor.

"There is a general perception among conservatives and even some up here (at the Capitol) that they are people who have bled a lot, and this was a historic opportunity to get some right-thinking people on the court, and they don't want to see it missed," said Sen. John Thune, R-S.D., who won election on a platform of ending the Democrats' blockage of the president's most conservative judicial nominees.

"There's a lot of angst out there."

Many conservatives contend Miers' appointment shows the White House was more interested in avoiding a confrontation with Senate Democrats than in being faithful to Bush's earlier suggestions that he would pick someone like Justices Antonin Scalia or Clarence Thomas, the high court's conservative lions.

By picking someone like Miers, who has never been a judge, and whose scant paper trail reveals little about her judicial philosophy, the president indeed may have avoided an all-out fight in the Senate, as he did with last week's easy confirmation of John G. Roberts, the new chief justice.

But conservatives wanted a paper trail, evidence that the president's nominee will apply the law from their worldview. And they certainly weren't shy about a fight in the Senate.

"The frustration is not just with Harriet Miers or her personal qualities or qualifications," said Richard Lessner, a longtime conservative activist and Washington political consultant.

"The larger frustration is we're now captive to the strategy the left has pursued for 20 years - we're agreeing to the principle that a Republican president can only nominate to the Supreme Court a jurist whose views are unknown."

Thune, one of several conservative senators who is openly expresses dissatisfaction with Miers' nomination, said a right-vs.-left battle would have helped Republicans in upcoming elections. But he said a fight between the right and the "less-right" won't.

"One thing that a lot of conservatives are saying is, "why show the white flag when having a fight would energize and motivate our conservative base?' " Thune added.

Clearly, the White House is scrambling. Vice President Dick Cheney has made the conservative talk show rounds. President Bush held a surprise press conference Tuesday to urge supporters to back Miers. "I know her strength of character," he said, while praising Miers' intellect.

So far, it has failed.

In Wednesday's newspapers, conservative columnist George F. Will questioned whether Miers' choice was defensible, and whether she has the heft the job demands. Ed Gillespie, who is helping the White House guide Miers' nomination, then got a hostile welcome Wednesday morning at the weekly conservative round-table hosted by Grover Norquist, president of Americans for Tax Reform.

Even if she votes with Scalia and Thomas, many there said, little in her experience or background suggests she will take a leading role in pushing conservative ideals and judicial philosophy from the bench, as Scalia and Thomas have done.

Before joining the White House, where her duties included helping choose judicial nominees, Miers, 60, ran the Texas lottery and led a large Dallas law firm.

Gillespie, the former Republican National Committee chairman, attended Norquist's round-table to answer questions about Miers' nomination and herald her qualifications. He then met with Republican senators at the Capitol, and later acknowledged he still has work to do.

"It's a natural part of the process," said Gillespie, who also guided the Roberts' nomination.

"In August, I was doing conference calls with conservatives who were afraid John Roberts was a blank slate."

Several important conservatives have blessed her, including Leonard Leo, executive vice-president of the Federalist Society; James Dobson, founder of Focus on the Family, a national ministry and radio network; and Jay Sekulow, chief counsel to the American Center for Law & Justice.

For them and others, there is much to like: Like the president, she's a born-again Christian. Friends say she opposes abortion. As a Dallas city councilwoman she opposed repealing Texas' antisodomy law.

But detractors say they have good reason for skepticism about Miers. Two previous "conservative" choices with a scant paper trail to examine, justices David Souter and Anthony Kennedy, turned out to be far more liberal than promised. And many say retiring Justice Sandra Day O'Connor, whom Miers would replace, drifted to the left during her time on the court.

"They've been told that before, and they've been burned before," Thune said.

[Last modified October 6, 2005, 01:15:08]