The vulnerable nominee

Robert Novak

10/20/2005 12:05:00 AM - Robert Novak

WASHINGTON -- George W. Bush's agents have convinced conservative Republican senators who were heartsick over his nomination of Harriet Miers to the Supreme Court that they must support her to save his presidency. But that does not guarantee her confirmation. Ahead are hearings of unspeakable ugliness that can be prevented only if Democratic senators exercise unaccustomed restraint.

 Will the Judiciary Committee Democrats insist on putting under oath two Texas judges who are alleged to have guaranteed during a conference call of Christian conservatives that Miers would vote to overturn Roe v. Wade? Will the Democrats dig into Miers's alleged interference nine years ago as Texas Lottery Commission chairman intended to save then Gov. Bush from political embarrassment?

 Officials charged with winning Miers's confirmation told me neither of these issues is troublesome, but in fact they suggest incompetence and neglect by the White House. To permit a conference call with scores of participants hearing close associates of the nominee predict her vote on abortion is incompetent. To nominate somebody implicated in a state lottery dispute in the past without carefully considering the consequences goes beyond incompetence to arrogant neglect.

 President Bush was not originally prepared for the negative reaction from the Republican base when he nominated White House Counsel Miers, his longtime personal attorney. Former Republican National Chairman Ed Gillespie, leading the confirmation campaign, over two weeks convinced skeptics that Miers is conservative enough. Whatever her qualifications, dubious Republican senators after hearing from Gillespie decided they could not deny his chosen court nominee to a president on the ropes. Bush has solidified Republican support not because he is strong but because he looks weak.

 Miers remains so shaky, however, that she may not be able to survive confirmation hearings that go beyond sparring over how much of her judicial philosophy she will reveal. That is why John Fund's column in Monday's Wall Street Journal chilled the president's backers. He reported a conference call with religious conservatives Oct. 3, the day the Miers nomination was announced, that indicated a lack of White House control over the process.

 Fund wrote that Texas Supreme Court Justice Nathan Hecht and U.S. District Judge Ed Kinkeade, on the conference call, flatly predicted that their friend Miers would rule against Roe v. Wade. Although the two jurists deny that, I checked with two sources on the conference call who confirmed Fund's version. That raises the possibility of bringing two judges under oath before the Senate committee to grill them on what they said and what Miers told them.

 The possibility of the Lottery Commission controversy being the subject of confirmation hearings is even more daunting for the White House. The story now is only being printed in alternative publications, such as the Dallas Observer of Oct. 13. These reports recalled the lawsuit brought by Lawrence Littwin alleging that Chairman Miers fired him as the Lottery Commission's executive director because he had uncovered corruption involving Gtech, the lottery management firm.

 Littwin's federal suit claimed Miers protected Gtech because its lobbyist, former Lt. Gov. Ben Barnes, as Texas House Speaker had pushed Bush ahead of other applicants for the Texas Air National Guard during the Vietnam War. Democrat Barnes had been silent until a 1999 deposition by him said he had pushed young Bush to the head of the line. Barnes, who received from Gtech $3 million a year and $23 million in separation pay, told me that the Bush Air National Guard story has "absolutely nothing" to do with his settlement. Littwin is silent under terms of a $300,000 settlement ending his suit. Former Texas Chief Justice John Hill, a member of the Lottery Commission at the time, told me: "There is no substance at all to these charges." Miers handled the case "with care and judiciousness," Hill added.

 Whether Barnes and Littwin will be subpoenaed to rehash these charges is in the hands of Judiciary Chairman Arlen Specter. The White House saved him from defeat in the 2004 Pennsylvania Republican primary and did not try to keep him from becoming chairman this year. But nobody expects Specter to grant forbearance for the president's lawyer.