Will the conservatives blow a stealth nomination?

Ross Mackenzie
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Posted: Oct 06, 2005 12:00 AM

Explain, please, why criticism of President Bush's nomination of Harriet Miers to the Supreme Court does not fit hand-in-glove with the proposition that Bush is a boob.

You know, the line holding that in contrast to such bright lights as Al Gore and John Kerry, the Bush bulb glows dim.

Indeed, that he is incompetent, the never-married Ms. Miers is a crony and a lightweight, and her appointment - ideologically - is a missed opportunity rivaling Bush I's nomination of the never-married David Souter.

Or Dwight Eisenhower's nomination of Earl Warren, Richard Nixon's of Harry Blackmun, Gerald Ford's of John Paul Stevens (even now, perhaps the court's most liberal justice) and Ronald Reagan's of the disappointing waffler Anthony Kennedy.

The Miers nomination could prove even worse - and after so much invested hope among moderates for someone who would turn the court onto a more consistently sober course, most notably on such issues as abortion, single-gender marriage and free expression.

And certainly, at first glance, Harriet Miers lacks the heft of many in the judicial monastery - e.g., J. Harvie Wilkinson, Karen Williams and Michael Luttig of the Virginia-based Fourth Circuit Court of Appeals, or Chief Justice Leroy Hassell of the Virginia Supreme Court. She lacks bench experience and (as principally a corporate lawyer) longtime grounding in constitutional law, and in her hearings she likely will not demonstrate the dazzling erudition and legal acumen of the new chief justice, John Roberts.

But. . .

Ideology? She is not a movement conservative, which dismays primarily . . . movement conservatives who had demanded that the next court nominee be one of them.

Bench experience? She joins Earl Warren, Whizzer White, William Rehnquist and Lewis Powell in boasting none; indeed, if confirmed, Miers would become, among the 54 justices confirmed since 1900, the 24th without any prior judicial experience.

Resume? Hers reads a lot like Sandra O'Connor's without the state court experience, or Lewis Powell's as a leader of legal groups (including the American Bar Association) and chairman of the Richmond School Board.

The Miers resume features these entries: at or close to the top of her undergraduate and law-school classes at Southern Methodist; law review; member of the Dallas City Council; first woman president of the Dallas Bar Association, the Texas Bar Association and the Texas State Bar (some say she easily could have tracked to the presidency of the ABA, as well); the first woman hired by a leading Dallas law firm founded in the 19th century and ultimately its managing partner; named by the National Law Journal as one of the "50 Most Influential Women Lawyers in America."

In addition, Harriet Miers . . .

As White House counsel has earned the praise of senators left and right; oversaw the selection and nomination process that led to the confirmation of Roberts; has worked with Bush for more than a decade; and so, as a loyal Bush confidante, has won from him this ultimate accolade - as did Dick Cheney, who chaired Bush's team to find a vice-presidential nominee, as well as longtime aides Condoleezza Rice (who went on to become secretary of state), Margaret Spellings (secretary of education), Karen Hughes (undersecretary of state for public diplomacy) and Alberto Gonzales (attorney general).

George Bush is a conviction pol. At his Tuesday press conference he said, "I'm still a conservative, proudly so." He also is an instinct pol: He tends to go with his instincts about people, and in his same press conference, he said of Harriet Miers: "I know her heart" and, implicitly addressing the maxim that if one is not actively conservative he or she tends to drift left, as Sandra O'Connor has: "Her philosophy won't change."

Very well.

Rightly or wrongly, Bush is under the gun for Iraq, Katrina and the rising price of gasoline; tax simplification and Social Security reform are off the table for the year. Tom DeLay has been indicted and Bill Frist faces an ethics inquiry; Karl Rove and Lewis Libby (Vice President Cheney's chief of staff) may be cited by a federal prosecutor as the Valerie Plame leakers. Times are tough for the president.

And loud lefties are gunning for him on this nomination to the Supreme Court. They insist he not change its direction - that he nominate someone in the tradition of Sandra O'Connor, that he consult with the Senate ahead of time, that he reach beyond the federal judiciary. He has done those things, and offered Harriet Miers.

This president goes with what, and whom, he knows. In selecting Miers, he has dropped his "youth" requirement (she is 60). Yet he has nominated someone whose public record is scanty and whose White House records may be protected not only by executive privilege but lawyer-client privilege. Along the way, the president has said, famously, that he will nominate individuals in the tradition of Antonin Scalia and Clarence Thomas. He did, with John Roberts, and prevailed.

To whatever extent he intended it as a stealth enterprise, he has followed with Harriet Miers. Here's to movement conservatives not joining with the left to blow her cover. And if Bush is not the dim bulb those who detest him insist he is, then the rest of us might be well advised, through faith and intellect, to believe in his nominee.