Miers Nomination in Jeopardy

By Carolyn Lockhead
The San Francisco Chronicle

Friday 14 October 2005

Moves to mollify critics aren't working.
Washington - Calls by conservatives for Supreme Court nominee Harriet Miers to withdraw her nomination intensified Thursday as White House efforts to reassure critics continued to backfire.

"The calls to withdraw are serious, and they're going to increase," said Manuel Miranda, chairman of the Third Branch Conference, a conservative alliance of groups interested in judicial nominations. "The more that we heard from the nomination's defenders, the more people became convinced that there was no substance in the nomination and that her friends were her worst enemies."

In the less than two weeks since President Bush announced he had chosen his White House counsel and former personal lawyer to fill the pivotal seat of retiring centrist Justice Sandra Day O'Connor, conservative charges of cronyism and questions about Miers' qualifications have escalated daily, threatening the nomination.

Miranda, a former aide to Senate Majority Leader Bill Frist, R-Tenn., predicted that a critical point will arrive next week when the Senate returns to Washington from a recess.

By then, Republicans "will have gauged the feeling out in their constituencies, and at that point they will be able to determine whether the White House is delusional or not."

White House spokesman Scott McClellan, in a testy exchange with reporters, denied that Miers would withdraw. "No one that knows her would make such a suggestion," McClellan said. "And no one that knows her record and her qualifications would make such a suggestion."

Behind the scenes, party activists in Iowa and New Hampshire say the administration has been asking them to pressure Republican senators and others harboring presidential ambitions to support Miers.

Senate Democrats are watching and waiting as Bush's conservative base roils.

"If ever there was a wait-and-see nomination, this is it," said Sen. Barbara Boxer, a California Democrat who has close ties to the Senate Democratic leadership. "Anything can happen."

Boxer agreed that Miers' nomination is in trouble. Even a handful of pro-choice Republicans worried about Miers' stance on abortion - or anti-abortion Republicans worried about the same thing - could ally with Democrats to defeat the nomination in the Judiciary Committee or on the Senate floor.

"Just look at the Judiciary Committee," Boxer said. "You have some people on the Judiciary Committee who may well decide not to send the nomination to the floor, and now it all depends on what Democrats do."

Every White House effort to cool conservative opposition to Miers seems to backfire, including Bush's explanation of why the White House is stressing Miers' evangelical Christianity.

"People are interested to know why I picked Harriet Miers," Bush said Wednesday. "They want to know Harriet Miers' background ... And part of Harriet Miers' life is her religion."

On Thursday, Tony Perkins, president of the conservative Family Research Council, called the administration's efforts to woo religious conservatives by stressing Miers' religion "out of bounds."

"We are the last people on Earth to object to the news that she is a committed Christian," Perkins said in a statement. "By the same token, this fact is not grounds for certifying her to us or to the public. ... Inferences drawn from an individual's religious affiliation have no place in decisions to nominate or confirm a judicial appointee."

Jan LaRue, chief counsel of the conservative Concerned Women for America, issued an extensive position statement Monday, saying, "We find it patronizing and hypocritical to focus on her faith in order to gain support for Miss Miers."

LaRue also presented a list of 17 questions that may offer a preview of the questioning Miers will undergo - from Republicans - in her confirmation hearings, which have not yet been scheduled.

"Was Miss Miers' corporate practice primarily transactions (contract writing and negotiations), or was it primarily litigation? How many of her cases involved constitutional issues? What were the issues? Did Miss Miers do most of the research and writing herself? Has she argued constitutional issues before a court? How many times? In what courts? In how many did she prevail? Are there any published opinions?"

White House efforts to sell Miers to conservatives by emphasizing her religion and her loyalty to Bush only provide ammunition to Democrats when they choose to use it, Miranda warned.

"So let's say they want to attack," he asked. "Who will defend her?"

A call by Frist to Republican senators last week to praise Miers on the Senate floor brought one lone voice: Sen. John Cornyn of Texas. If Miers does not withdraw, Miranda predicted the confirmation hearings will become a "dog killing" if she "does not appear braver and bolder than John Roberts, and as brilliant."

Far from providing political cover, the dearth of writings by Miers of any sort is feeding doubt on both sides and throwing an unflattering spotlight on what little does exist.

"Here's what I know about Harriet Miers," Boxer said. "I know that she's a crony of the president. I know she thinks he's the most brilliant man she's ever met. I know that she was head of the search committee and wound up being the nominee, and I know that she is personally anti-choice. Those are things I know."

Although Miers has never said she opposes abortion, allies speaking for her have intimated that she probably is. "She's had every chance to say they're misrepresenting me, and she hasn't ... nor has she refuted it," Boxer said.

Democrats complained that Chief Justice John Roberts, confirmed last month to fill the vacancy left by the late William Rehnquist, had a short paper trail, but roughly 65,000 pages of memos, court opinions and other documents provided a treasure trove compared to Miers' newsletter columns for the Texas State Bar, Texas Lottery Commission documents and personal missives to Bush.

"I'm tempted to call my friendly adversaries on the right and ask them whether we can make some joint recommendations to the Senate on document requests of the White House and the line of questioning during the hearings," said Ralph Neas, president of the liberal People for the American Way.

Several of Miers' writings have been lampooned, such as a 1997 letter to Bush in which she declared that "Texas is blessed" because Bush was governor, and a column she wrote for the Texas Bar Journal in the early 1990s that conservative New York Times columnist David Brooks called a "relentless march of vapid abstractions" whose "quality of thought and writing doesn't even rise to the level of pedestrian."

Among the many conservatives calling for Miers to withdraw is Peggy Noonan, former speechwriter for the late President Ronald Reagan. Noonan said that by jettisoning Miers, Bush could force conservatives to accept the next nominee and Bush "could even shove Alberto Gonzales down their throats."

Even veterans of Supreme Court nomination battles say they have never seen anything quite like this one.

"This one so far is in a class by itself," Neas said. "I'm not sure what's going to happen ... In my three decades plus, I've never seen such immediate and widespread disrespect for a president's decision by activists in his own party. It really is quite extraordinary."

Joseph Kobylka, a political scientist at Southern Methodist University, said Democrats are smart to lay low.

"For right now, the wisest strategy for someone who is unsure about Miers is to stay in the background," he said. "Stuff is going to come out."

As long as Republicans "keep cannibalizing one another," he said, "Democrats can sit back and watch it happen and then pick among the rubble afterward."

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