October
12, 2005
Will Senate OK A 'Self-Effacing' Court Nominee?
By
Mort
Kondracke
President
Bush set a stellar standard in nominating John Roberts to the
Supreme Court - simply, the best. But he dropped his sights in
nominating White House counsel Harriet Miers, and there's been
hell to pay ever since.
This isn't
to say that Miers is unqualified for the court, as critics charge.
Or, for that matter, that she won't be confirmed. She probably
will be.
But in Roberts,
Bush selected not merely an experienced appellate litigator and
former Supreme Court clerk, but a lawyer regarded by his peers
as among the very best in the business.
And he proved
his talent in public before the Senate Judiciary Committee - fielding
questions over many grueling hours, citing cases, dodging commitments,
flummoxing adversaries and doing it all without consulting notes
or counsel.
He was so
dazzling, and, seemingly, so independent-minded and judicious,
that 22 Democratic Senators couldn't help but vote to confirm
him. Many of these Senators were from red states, and some are
up for re-election. But others apparently really believe that
Roberts, though conservative, can put his respect for the law
above his personal biases. For what it's worth, I believe it,
too.
Miers is
a whole other matter. When Bush declared that Miers was the best
qualified candidate he could find to fill the Sandra Day O'Connor
vacancy, it clearly was by a different standard from the Roberts
standard.It wasn't "best qualified" by experience or
reputation, but by long and loyal personal acquaintanceship with
the president. "I know her character," he said. "She's
a woman of principle and deep conviction. She shares my judicial
philosophy."
This should
give Democrats special pause. If Roberts conveys the impression
that he could separate his legal views from his personal ones,
Bush - as Daniel Henninger trenchantly argued in the Wall
Street Journal last Friday - seems to have used Miers to
appoint himself to the court.
Democrats
ought to be taking Bush at his word - that he knows Miers' mind
and heart very well. If they don't like what Bush stands for,
they almost certainly won't like the way Miers will vote on the
court.
On their
hottest-button issue, abortion, Bush claimed not to have discussed
matters with Miers and he claimed not to have imposed a litmus
test. But the manager of her 1989 campaign for the Dallas City
Council said that Miers is "on the extreme end of the anti-choice
movement."
Lorlee Bartos,
now a Web logger in Dallas, told the Dallas Morning News
that Miers was "pro-choice in her youth" but underwent
"a born-again, profound experience" that led her to
oppose abortion. Despite such evidence, Democrats are holding
their fire on Miers, apparently in deference to the Napoleonic
dictum that one is well-advised not to interfere when the enemy
is in the process of destroying itself.
The Miers
nomination clearly has set a storm loose among conservatives,
with a bevy of them attacking her and Bush for not providing them
with a right-wing legal giant in the mold of Justice Antonin Scalia.
Some of the
conservatives, Rush Limbaugh among them, clearly were hankering
for judicial Armageddon - the moment when the right would unequivocally
end the left's perceived dominance of the federal judiciary.
Others, believing
that Miers is not a "movement conservative," are afraid
that she will turn out to be "another [David] Souter"
or "another O'Connor" - a GOP-appointed justice who
ends up siding with liberals. Bush went out of his way to assure
his base that he knows Miers in a way that his father did not
know Souter when he appointed him, and that she won't change over
20 years, as conservatives think O'Connor did.
Miers' Senate
judiciary hearings will be even more suspenseful than Roberts'
were. One top White House aide told me he thinks the hearings
will be "very different from Roberts."
"This
is a genuinely humble human being in a city without them - a person
of unaffected modesty," the aide said. "She's the kind
of person who literally won't let anyone else change the toner
on her copying machine.
"She
has no arrogance about her. It's going to be very interesting
to see how that comes across. She is a person of self-effacing
modesty. She'll be well-prepared because, of course, she helped
prepare Roberts.
"But
she has a very different manner that I think will actually be
very good for the court itself. She is not going to be an elbow-throwing
dissent writer. She is going to be a conservative who builds relationships
on the court."
This aide
added,"If I were in trouble, I'd prefer her to be my lawyer
above any lawyer I've ever met. And I would prefer her to be my
judge because she's an unbelievably fair person."
It's high
praise, but "self-effacing" is not what Senators usually
value in a witness. Miers will likely be confirmed, but her troubles
are not over.
Mort
Kondracke is the Executive Editor of Roll Call.
