Bush's unconventional choice

from the October 04, 2005 edition - http://www.csmonitor.com/2005/1004/p01s03-usju.html

Harriet Miers, nominee to the high court, has never been a judge, so paper trail is short.

By Linda Feldmann, Warren Richey, and Gail Russell Chaddock Staff writers of The Christian Science Monitor

WASHINGTON - From a reputed short list of potential US Supreme Court nominees crowded with conservative judicial stars, President Bush has selected a woman he knows well personally and trusts - but who brings to the table little public record on which to assess her views.

Harriet Miers, the White House counsel, has never been a judge and is not a recognized expert on constitutional law, in sharp contrast to the new chief justice, John Roberts.

Still, she has diverse experience, including many years in private law practice, and political experience that none of the sitting justices has, both as a member of the Dallas City Council and, for the past five years, as a member of Mr. Bush's White House inner circle. Before being named counsel 10 months ago, Ms. Miers had served as assistant to the president, staff secretary, and deputy chief of staff.

As the replacement for the retiring Sandra Day O'Connor, the first woman justice, Miers would maintain the presence of two women on the court, and perhaps also present a counterweight to the liberal Ruth Bader Ginsburg.

In announcing her nomination Monday morning, Bush said she "stood out as exceptionally well suited to sit on the highest court of our nation."

Reaction to Miers's selection was swift and varied, from across the political spectrum. Some conservatives expressed enthusiasm; others moaned that she is unqualified and, more troubling, a stealth nominee who cannot be counted upon to side with the conservatives, especially on incendiary social issues such as abortion, gay rights, and the church-state divide.

From the left, the cries of cronyism were equally piercing, aimed at a president under fire of late for placing appointees of questionable qualifications in central positions, such as federal emergency management and immigration. Miers's selection also harks back to Bush's naming of Dick Cheney as his running mate in 2000, when Mr. Cheney headed up the Bush team's veep vetting process.

But just as striking were the words of encouragement from a key Democrat, Senate minority leader Harry Reid. Senator Reid, in fact, acknowledges that he recommended Miers for the nomination. In a statement after Bush's announcement, Reid said, "... the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer."

Miers now faces the daunting challenge of following John Roberts to the witness chair in the Senate Judiciary Committee. Chief Justice Roberts came to the table with a golden résumé and no questions over qualifications, just over judicial philosophy. Miers will need to show enough senators that she has the legal chops to merit lifetime appointment to the nation's ultimate appeals court.

Democrats are going see her as "someone who has distinguished herself purely through political appointments," says Michael Gerhardt, a law professor at the University of North Carolina and a judicial confirmation expert. "It is hard to look at her career and think that the next logical step for her from White House counsel is to be on the Supreme Court of the United States."

With little hard evidence that Miers will take positions that please the activist base of the Republican Party, Bush is essentially saying to his party, "Trust me," says Professor Gerhardt.

Miers's selection over the many other long-mentioned candidates - with lengthier paper trails - may point to a reluctance by Bush to tempt the possibility of a filibuster in the Senate. If Senate Democrats were to engage in endless debate, Bush and his Republican allies would then face a decision over whether to go "nuclear" by changing the rules and allowing his nominee to pass with a simple majority. To some analysts, Bush's selection of a nominee who does not trigger automatic, fierce partisan opposition in the Senate is a sign of his weakened political position.

But now Bush is facing qualms from his right flank. "Many conservatives today will view this as the most unqualified nominee since Abe Fortas," says Manuel Miranda, chairman of the Third Branch Conference, a coalition of libertarian and conservative organizations and a former counsel on judicial nominations to Senate majority leader Bill Frist. "It's exactly the opposite of what we were looking for ... to undo the need for stealth nominees."

Questions were raised about Mr. Fortas's nomination because of his friendship with President Lyndon Johnson.

Conservative activist lawyer Jay Sekulow, a stalwart in backing White House judicial nominees and an emissary to religious conservatives, backs Miers fully. She represents "the conservative mainstream of judicial philosophy of interpreting the Constitution, not rewriting it," he said in a statement, touting as one example Miers's leadership in opposing the American Bar Association decision to come out in support of Roe v. Wade, the abortion rights precedent. He does not address the issue of her donations to Democratic political candidates, including Al Gore in 1988.

Miers is not the first high court nominee to lack judicial experience. Former Chief Justice William Rehnquist had never been a judge prior to donning the robes of a justice. Lewis Powell, a member of the high court from 1972 to 1987, was one of the nation's most respected lawyers but had no prior service on the bench.

Likewise, Chief Justices John Marshall and Earl Warren were not jurists before joining the court.

Harriet Miers file

• Born in 1945, in Dallas.

• Degrees in mathematics (1967) and law (1970) from Southern Methodist University.

• Joined Dallas law firm in 1972; by 1985, was first woman president of Dallas Bar Association.
• Member, Dallas City Council, 1989-1991.

• Chairwoman of Texas lottery commission from 1995 to 2001, when she joined the White House. She has been counsel to President Bush since February 2005.

• Named by National Law Journal as one of the nation's 100 most powerful attorneys.

• Has worked with multiple charities, including the Young Women's Christian Association, Childcare Dallas, Goodwill Industries, Exodus Ministries, Meals on Wheels, and the Legal Aid Society.

• Single; no children.

- White House Press Release, Associated Press

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