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.

Mort Kondracke

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