Harriet Miers: Maybe Yes

Monday, October 3, 5:03 p.m.
I have just completed a conference call with a host of conservative leaders on the nomination of White House Counsel Harriet Miers to the position of Associate Justice of the United States Supreme Court. As I expected, nothing has changed from my Early Skinny memo at noon today listing the pros and cons of the nomination. With the dearth of information on this individual, our warmth to her appointment may hinge on our trust in the President and trustworthy Texans (like Justice Hecht) who know her and assure us she is conservative and evangelical. Like a lot of Texans, she used to be a Democrat. But her leadership in the vetting of judges for the White House gave us Appeals Court Judges like Priscilla Owen and Janice Rogers Brown and Chief Justice John Roberts. Then again, there is no doubt but that this nomination is "huge." --OPS

Dr. James Dobson (PRO/WAIT)
Fred Barnes (PRO/WAIT))
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PRO-MIERS
Dr. James Dobson

Focus on the Family Action Chairman James C. Dobson, Ph.D., issued the following statement today regarding President Bush's nomination of Harriet Miers to replace Justice Sandra Day O'Connor on the United States Supreme Court:

"We welcome the president's nomination of Harriet Miers to the U.S. Supreme Court. He pledged emphatically during his campaign to appoint judges who will interpret the law rather than create it. He also promised to select competent judges who will 'not use the bench to write social policy.'(1) To this point, President Bush's appointments to the federal bench appear to have been remarkably consistent with that stated philosophy. Based on the information known generally about Harriet Miers, and President Bush's personal knowledge of her, we believe that she will not prove to be a lone exception."

On the other hand, one cannot know absolutely about matters of integrity and philosophy until a jurist is given the tremendous power and influence of their position. As Lord Acton said: 'Power corrupts, and absolute power corrupts absolutely.' Sadly, that seems to have happened to Justices Souter and Kennedy."

We look forward to learning more about her at the confirmation hearings."

PRO-MIERS
Fred Barnes from THE WEEKLY STANDARD

IF ALL GOES WELL, Harriet Miers will turn out to be a less impressive version of John Roberts: that is, a judicial conservative, or constitutionalist, who will cause the ideological balance on the Supreme Court to shift to the right. She's not likely to have Roberts's gift for describing and defending a conservative judicial philosophy, dodging questions on current issues, and toying with frustrated Democrats. All she needs to do is come off as a credible mainstream conservative, avoid the questions that Democrats will try to trick her on, and persuade senators she's not merely a Bush crony. That accomplished, she should be confirmed.

She'd better be able to do this. If she can't--if she's not really a conservative--the political effect will be to shatter President Bush's still-strong relationship with his base. The love affair will be over. The president will have dashed the hopes cherished by conservatives for a conservative Supreme Court. And he will be far weaker as a national political leader as a result.

Here's what people at the White House told me after Bush announced to nearly everyone's surprise that Miers, 60, now the chief White House legal counsel, was his pick to replace Sandra Day O'Connor: After running the judicial selection process along with Karl Rove--the process that led to the Roberts nomination--she had become a candidate for the high court herself.

The president and others at the White House have had long discussions with her about judges. She and Rove were involved in questioning at least five candidates for the court vacancy Roberts has filled. From those talks over the months, I'm told, it became clear to Bush that she had exactly the philosophy of judicial restraint he favors and that she wouldn't "grow" as a justice and turn into a swing vote or a liberal.

Also, I'm told, the president is fully aware of the stakes in this nomination. Roberts's replacement of William Rehnquist as chief justice was simply a conservative replacing a conservative. But Miers would succeed a swing justice. With her, I'm told further, Bush believes he would be altering the ideological makeup of the court, moving it to the right.

The question is: why pick Miers and not someone with a judicial record as a conservative? Bush had before him a list of roughly two dozen potential nominees with unassailable qualifications and clear conservative leanings on judicial matters. He'd already interviewed at least four of them. Any of them would be likely to win confirmation. No president whose party controls the Senate has lost a Court nomination fight since 1968. And that year, President Lyndon Johnson's selection of his buddy Abe Fortas came late in the term. That made it easy for Republicans to delay and ultimately kill the Fortas nomination.

So why did Bush choose Miers? For him, these nominations are quite personal. He wants to feel comfortable with his nominee, confident his pick will be a conservative now and conservative 20 years from now. Bush picked Roberts after being impressed while interviewing him. His doubts were erased (and there were initial doubts about Roberts). My guess is with Miers his doubts were washed away too.

Conservatives shouldn't throw up their hands in despair, at least yet. They should wait until they hear from Miers as a witness before the Senate Judiciary Committee. It's then that we'll begin to find out if Bush was correct in his view that she's the person to fulfill the dreams of so many conservatives and finally shove the Supreme Court to the right.