Bloomberg - President Bush Names Close Advisor to Succeed Justice O'Connor on Supreme Court

October 4, 2005
by James Rowley, Washington
 
Oct. 4 (Bloomberg) -- President George W. Bush is suing for political peace instead of trying to energize his base of conservative Republican supporters by nominating White House Counsel Harriet E. Miers to the U.S. Supreme Court.

With his standing in the polls near a five-year low, Bush picked a trusted legal adviser, who was recommended by none other than Senate Democratic Leader Harry Reid, to replace Justice Sandra Day O'Connor. The first woman on the high court, O'Connor has been a key swing vote on many big cases in her 24 years.

Bush risks disappointing conservatives who were counting on the president to fulfill his campaign promise of selecting someone like Justices Antonin Scalia and Clarence Thomas. Both men favor overturning the court's 1973 decision legalizing abortion and have voted against expanding gay rights and for allowing student-led public school prayer.

"He apparently didn't have a stomach for a direct confrontation,'' said Thomas Mann, who studies Congress at the Washington-based Brookings Institution. "He may well have picked a fight with his base, the social conservative base as opposed to the economic conservatives.''

While Miers has a limited public record on social issues, her work as a corporate lawyer suggests she may be an economic conservative and a friend of business interests. She represented Redmond, Washington-based Microsoft Corp., the world's largest software maker, and Burbank, California-based Walt Disney Co., the second-largest U.S. media company.

The debate over Miers, 60, will be framed by the Senate's experience with the confirmation of Chief Justice John G. Roberts Jr., creating potential dilemmas for supporters and opponents.

Nominee's Qualifications

Republican senators who chided Democrats for opposing Roberts, a nominee who most agreed was among the best qualified in memory, will be hard-pressed to make the same argument about Miers.

"Roberts was an extraordinary candidate,'' said Carl Tobias, who teaches constitutional law at the University of Richmond's law school. "He was incredibly polished in his testimony.''

At the same time, Democrats, who disappointed their liberal constituents by not uniting to oppose Roberts, may find it harder to attack a woman.

While Roberts had two years as a federal appeals judge and drafted numerous memos as a legal counselor at the Justice Department, Miers has no judicial experience and could prove a more elusive target.

70,000 Pages

More than 70,000 pages of documents from Roberts's days as a young lawyer for President Ronald Reagan were produced before his confirmation hearing, prompting questions about his views on civil rights, abortion and other issues.

Senator Arlen Specter, the Pennsylvania Republican who heads the Judiciary Committee, said he doubts the White House would produce many memos by Miers because they would likely be covered by either executive or attorney-client privilege. He said he wants to read a "great many speeches'' Miers gave as head of the Dallas and Texas bar associations.

Democrats reacted cautiously to Miers, saying she would have to prove at Senate hearings that she could be independent from the president she has advised as a private lawyer and White House counsel.

"It could have been a lot worse,'' said New York Democrat Charles E. Schumer, a member of the Judiciary Committee who opposed Roberts. "There's hope Harriet Miers is a mainstream nominee.'' Schumer called on the White House to make available documents from her tenure as White House counsel.

"We know less about Harriet Miers then we knew about John Roberts,'' he said.

Sound Choice

Still, Nebraska Senator Ben Nelson, one of 22 Democrats who voted for Roberts's confirmation last week, praised Bush's "sound choice.'' Miers could "emerge from the confirmation hearings with broad support,'' Nelson said in a statement.

The president provoked the ire of some conservative activists.

Manuel Miranda, executive director of the Third Branch Conference, a Washington-based conservative advocacy group, called Miers's nomination a "significant failure.'' Tony Perkins, president of the Washington-based Family Research Council, urged "American families to wait and see if the confidence we have always placed in the president's commitment is justified by his selection.''

Other conservative activists praised the choice, notably Jay Sekulow, chief counsel of the Washington-based American Center for Law and Justice. Bush showed "exceptional judgment,'' he said.

In a telephone interview with radio host Rush Limbaugh, Vice President Dick Cheney defended the nominee. "I'm confident she has a conservative judicial philosophy you'd be comfortable with,'' he said.

Cheney disputed Limbaugh's suggestion that Bush was trying to appease liberals. "We've never backed off from a fight with this Congress, or any Congress,'' the vice president said.

Real-World Experience

Miers was praised by some politicians for her real-world experience. Unlike all the current members of the high court when they were nominated, she has never been a judge. In addition to being a corporate lawyer, she served a term on the Dallas City Council and headed the Texas Lottery Commission.

"Harriet Miers served with distinction as a trial lawyer. That's what I am,'' Reid told reporters after meeting with her. "So anyone with that background makes me feel good -- someone who has been in a courtroom.''

Reid's spokesman, Jim Manley, said the Democratic leader "urged the president to consider Ms. Miers for the position'' during a White House meeting two weeks ago.

Arkansas Senator Mark Pryor, another Democrat who voted for Roberts, said in a statement that Miers "offers a different and valuable perspective.''

Specter noted that "many of us have called for a nominee from a background other than one of being a jurist.''