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Bush taps Miers for high court

Oct. 4, 2005

by TASHA CLARK,reporter and RON FOURNIER,The Associated Press

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.

Dr. Thomas Myers, political science associate professor, said that Miers' lack of judicial experience could have both negative and positive effects on her confirmation.

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Miers
"The lack of experience means that there's sort of a blank slate there, and it would be somewhat difficult for people who wanted to question that nomination to find things to question her on," Myers said. "It will be easier for Bush and his staff to promote her as a more or less neutral person."

Myers uses former Chief Justice William Rehnquist as an example of how judicial experience has little to do with the ability of a person to fulfill the role of a judge at the high court. Myers continued to explain that Rehnquist didn't hold a position as judge before his nomination to the Supreme Court.

"Generally speaking, the more information the senators have the better, but we have a number of justices who sat on the Supreme Court without previous experience as a judge who did quite well," Myers said.

Interim President Bill Underwood said some of the finest Supreme Court justices in history didn't have previous judgeships, so he's not worried about Miers' lack of judging experience.

"She's committed to the judicial system and committed to equality and justice," said Underwood, who was a professor at the Baylor Law School before being tapped to fill the interim presidential slot. "I know that she's a very accomplished lawyer. She's bright and talented."

Myers argues that should the senate confirm Miers, it is possible for the court to take a more conservative direction. However, Myers notes that nominees can be unpredictable once they are appointed justice.

"It's always a guess as to what direction the court is going to take, there are many number of judges nominated by presidents where those judges once on the court took a different direction," Myers said.

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.

"The president selected her because she is the best person to fill this vacancy," said spokesman Scott McClellan.

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.

On the Internet, the writings of social conservatives dripped with criticism and skepticism. "Where is our Scalia/Thomas?" wrote a blogger on redstate.org and confirm them.com. Several bloggers complained about Miers donating to Al Gore's 1988 presidential campaign.

White House defenders quickly took to the same blogs and noted that Miers had fought to reverse an abortion-rights stand taken by the American Bar Association.

As with Roberts, who breezed to confirmation, Bush is counting on his supporters to trust his judgment. Polls show strong support for the president among conservatives, even as some other voters turn away.

A Republican strategist with close ties to both the White House and social conservatives put it this way: If Roberts' nomination was welcomed by Bush's base with a loud cheer, Miers received polite applause and a few raised eyebrows.

The pick gives Bush a chance to reshape the court for the long haul and -- in the short term -- change the subject from Iraq, gas prices, Hurricane Katrina and the public's rising anxiety over the economy.

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.

Sen. Patrick Leahy of Vermont, the top Democrat in the Judicary Committee who voted for Roberts, said all he knows about Miers is her "reputation for being loyal to this president."

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.