Archive for Thursday, October 6, 2005

Liberals may have most to fear in Miers

October 6, 2005

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— The nomination of Harriet Miers as a replacement for swing-vote Justice Sandra Day O'Connor poses entirely different confirmation challenges to the Senate than those raised when President Bush chose John Roberts to be Chief Justice of the United States.

Roberts had a lengthy record of service in government, two years of judicial experience on the federal appellate bench and an incomparable set of credentials in academia and private practice. He was also replacing another conservative.

Miers enjoys a similarly high standing with colleagues in the Dallas and Texas bar. But she has never judged a single case nor argued a constitutional issue before the high court. Her one distinguishing characteristic is the trust she has earned from her most important client, George Bush.

The words the president used in his Tuesday news conference conveyed his deep admiration for the woman he employed as a private attorney, campaign adviser and, most recently, as White House counsel. He spoke not only of her intellect but of her character, his confidence that she shares his "strict constructionist" judicial philosophy, and of his certainty that she will not change. She will have the "same philosophy 20 years from now," he said.

Bush's words were clearly aimed at reassuring his conservative constituents, some of whom had greeted the choice of Miers with groans of disappointment, because they had other favorites with records and views more obviously in line with their own.

It's too soon to judge this nomination. But my guess is that, in the end, it is the liberals who will have the most misgivings about Miers.

I came to that conclusion after a breakfast interview - by coincidence the morning of the president's announcement - with Leonard Leo, who is on leave as executive vice president of the Federalist Society to work with the White House on judicial confirmation issues.

The Federalist Society, an organization of conservative lawyers, has been influential in staffing the Bush administration and recommending candidates for the federal bench. Leo came late to the breakfast from a conference call, in which he was attempting to quash the arguments other conservative leaders were making against Miers.

He spoke as one who has known her - and worked with her - for well over a decade, who has played host to her when she has been a Federalist Society speaker, and - perhaps most significantly - joined her in a battle to get the American Bar Assn. to rescind its resolution endorsing Roe v. Wade, the decision establishing a right to abortion.

The first thing Leo said was that Miers' statement accepting the nomination from Bush was significant to him. "It is the responsibility of every generation to be true to the Founders' vision of the proper role of the courts in our society," she said, "and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution."

"When she talked about 'the Founders' vision' and used the word 'strictly,"' Leo said, "I thought, Robert Bork," Ronald Reagan's Supreme Court pick rejected by the Senate after a bitter fight. "She didn't have to go there. She could simply have said, 'Judges should not legislate from the bench.' But she chose those words."

I asked if he was surprised that she did - or whether it was consistent with what he knew of her judicial philosophy? He replied: "I'm not surprised that's what she believes. I'm surprised her handlers let her say it."

As for the fight within the bar association, Leo said that he and Miers and their allies argued that it was "inappropriate" for the organization to endorse Roe "when there are doubts about the legitimacy of the underlying legal doctrine."

Was she opposed to the Roe decision? I asked. "That was not the issue. The only way to fight this within the ABA was to talk about the process" by which the endorsement was made. "It took a lot of courage to be out front on that issue" within the bar association, "especially for a woman."

And then he added that Miers is "well-regarded by anti-abortion leaders in Dallas," and has written a check to at least one such group.

Finally, I asked him to compare Miers to the justice she would be replacing, if confirmed. Unlike O'Connor, he said, "she believes in legal rules, that law has a content to it. She is not one who would vacillate back and forth in a world of murky standards, which is how I see Justice O'Connor."

Maybe that's what the president meant when he said he was confident she "won't change."

David Broder is a columnist for Washington Post Writers Group.

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