Bush's Supreme Court Pick: Is She Right Enough?

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NOMINEE: Miers and Bush talk about the choice

President Bush, who prides himself on boldness, went with safety for his second Supreme Court nomination. Harriet Ellan Miers —now the White House counsel, and named Monday morning to succeed Justice Sandra Day O'Connor—was commended by several Democratic senators during the President's consultation process. "If there is a fight to be had, it will be from the right," says a Republican Senate aide. "The left has been disarmed."

Safety for confirmation may not mean political safety for Republicans. The party's base of conservative supporters was already disillusioned because of the administration's record spending, and a hard-core pick might have rallied them ahead of next year's midterm elections. Instead, a conservative backlash built against Bush's choice all day, and Vice President Cheney phoned in to Rush Limbaugh's radio show to try to reassure the faithful. Limbaugh's first question pointed to "a lot of concern" among Bush supporters, and said there was "disappointment out there" and that some of his backers felt "depressed," "let down," and "a little worn out having to appease the left on all these choices." Cheney replied: "I think you'll find when you look back 10 years from now that it will have been a great appointment. ...You'll be proud of Harriet's record, Rush. Trust me." Republicans also expressed dismay that Miers had donated $1,000 to Al Gore's presidential primary campaign in 1988. Republican officials said she formerly was a conservative Democrat, and Presidential spokesman Scott McClellan noted that at that time most people in Texas political life were Democrats. "People are just surprised," said one official trying to tamp down naysaying.

Democrats, by contrast, sounded almost pleased. Senate Minority Leader Harry Reid, a Democrat from Nevada, personally urged Bush to consider Miers, sources say. A senior administration official, asked about the logic of the choice, points to Democratic support and the fact that, as Bush said in introducing her, Miers had been "a pioneer in the field of law"—a woman who was active in the Southern legal community at a time it was dominated by men, becoming the first female president of both the Dallas Bar Association and the State Bar of Texas. Sure enough, Reid issued a statement 90 minutes after Bush announced the pick that began, "I like Harriet Miers." He called her "a trailblazer," unintentionally echoing the language of talking points that had been sent to Republicans. He added that the court "would benefit from the addition of a justice who has real experience as a practicing lawyer."

Having never been a judge, Miers lacks even the relatively limited body of decisions that Chief Justice John G. Roberts had when he went through the nomination process, which may make her an even easier sell to the Senate. "She will be very hard to oppose," a Republican strategist said. "Bush seems to be saying, 'I dare you.'" The official Republican talking points say: "Like Justice O'Connor, throughout her career, Ms. Miers has been a female trailblazer." She is single, and Republicans are emphasizing her closeness to her family and her community involvement—plus her "strong voice in the American Bar Association," which is sometimes shunned by conservatives.

Nevertheless, Democrats can be expected to try to tie every Bush administration decision to her, since she has been at ground zero of an exceedingly insular White House since the Texans first came to Washington. This White House seems to welcome battles over executive privilege on the theory that they make the presidency stronger, and there could be a battle royale over papers Miers has seen or drafted. The day of Bush's first inauguration, she started as staff secretary, the official who manages the paper flow to and from the President and thus knows virtually everything about what is happening in the West Wing. She later was one of the two deputy chiefs of staff, and became White House counsel—the President's lawyer—in February when Alberto Gonzales moved up to attorney general. Specifically, Democrats are likely to ask her about the so-called Bybee memo of 2002, since disavowed by the White House, which provided a legal justification for the use of torture on detainees in the war on terror.

The President's father may still be haunted by how incorrectly he read David H. Souter when he chose him for the high court, but Bush knows few lawyers as well as he knows Miers. She has traveled with him often, dodging leaking oil from military helicopters and roughing it in the senior staff trailer at the ranch in Crawford. When her name was floated toward the end of the consideration process, most reporters thought it was a head fake, in part because she is 60. Republicans had expected someone younger who could theoretically serve longer, since the court may turn out to be the crown jewel of the Bush legacy. That may be why familiarity, rather than audacity, carried the day.

Her Views on Gays

In 1989, Miers ran for Dallas City Council, and answered this questionaire from the Lesbian Gay Political Coalition of Dallas. In it, she supported full civil rights for gays and lesbians and backed AIDS education programs for the city of Dallas. Source: Quorumreport.com