WASHINGTON – Some liberals call it cronyism. Some conservatives call it a betrayal. President Bush is gambling that it will prove smart and safe – choosing a little-known loyalist with no judicial experience to fill a second Supreme Court vacancy.
Harriet Miers seems destined for confirmation. Despite howls from the fringes of both parties, Democratic and Republican strategists expect her to take a seat alongside newly minted Chief Justice John Roberts barring a surprise development.
It’s a good sign for Bush and his attorney-turned-nominee when the first words from Senate Democratic Leader Harry Reid are these: “I like Harriet Miers.”
It helps that Republicans hold 55 of the Senate’s 100 seats.
It helps that Democrats are chastened from the 2004 campaign, when leader Tom Daschle lost his South Dakota Senate seat after Republicans cast him as an obstructionist.
It helps that Bush bowed to pressure and nominated a woman.
“Having never served as a judge, Ms. Miers has no paper trail of judicial opinions, and prospective opponents thus will have a hard time identifying positions to protest or complain about,” said Supreme Court historian David Garrow.
Artemus Ward, a Northern Illinois University political science professor, said the public will be suspicious of Miers’ lack of service on the bench. Still, he called the nomination a smart move.
“You try to pick a nominee that Democrats won’t be able to criticize as much because they are a woman or a minority,” he said. “This is a classic Clarence Thomas strategy.”
Thomas was nominated for the Supreme Court by Bush’s father. Though his confirmation hearings were tumultuous, much of the controversy was over personal rather than policy issues – and he was approved. The first Bush White House was ridiculed by some for insisting that Thomas was the most qualified pick available, a line echoed by the second Bush White House concerning Miers.
In strictly political terms, it doesn’t matter. With 51 votes required for confirmation, Bush just needs to keep GOP senators in line and avoid a bruising political fight.
Republican strategists said they would have to work hard to ensure the support of the more conservative members of the Senate. That’s because the GOP is divided in two camps.
Traditional conservatives who dominate the GOP legal community said they were satisfied with Bush’s promise that Miers “will not legislate from the bench.” The phrase is a signal to the president’s political base that Miers will help steer the judiciary to the right.
“Conservatives should be very happy with this selection,” said Leonard Leo of the Federalist Society.
But many social conservatives are unhappy. They had demanded a certified conservative with a long, written record in opposition to abortion and gay rights and in line with Justices Thomas and Antonin Scalia.
Public Advocate called her selection “a betrayal of the conservative, pro-family voters” who put Bush in the White House.
Under pressure from liberal interest groups to oppose any Bush nominee, some Democrats are laying the groundwork to cast the White House counsel as a Bush crony who benefited from the same type of political favoritism that put Michael Brown in charge of the Federal Emergency Management Agency.
Pete Shane, a law professor at Ohio State University, said picking a pal for the Supreme Court “seems like a flat-footed thing to do” after the post-Katrina fallout over FEMA.
The truth is, nobody knows what kind of justice Miers would make. Even Roberts, one day into his lifetime appointment, is a mystery – a stealthy conservative.
Maybe that’s how Bush wants it.
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