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White House Counsel Miers Chosen for Court
Some Question Her Lack of Experience As a Judge

By Michael A. Fletcher
Washington Post Staff Writer
Tuesday, October 4, 2005

President Bush nominated Harriet Ellan Miers, his White House counsel and former personal attorney, to the Supreme Court yesterday, choosing a woman who broke barriers in the male-dominated Texas legal world but brings no judicial experience or constitutional background to her new assignment.

Bush announced his choice for the nation's 110th justice from the Oval Office shortly before the court opened its new term under newly installed Chief Justice John G. Roberts Jr. In Bush's nationally televised statement, he simultaneously introduced Miers and defended her legal résumé, which came under immediate attack from some conservative groups.

In succeeding Justice Sandra Day O'Connor, one of the court's swing voters, Miers would be in a position to move it decisively to the right. Bush said she would bring a distinctive perspective to the high court while strictly interpreting the Constitution and not legislating from the bench.

"In selecting a nominee, I've sought to find an American of grace, judgment and unwavering devotion to the Constitution and laws of our country. Harriet Miers is just such a person," Bush said. "I've known Harriet for more than a decade. I know her heart. I know her character."

The White House appeared to be seeking a smooth confirmation process, bypassing candidates with more established conservative bona fides at a time when Bush is beset with political problems including the Iraq war and Hurricane Katrina. Based on advance soundings with Senate Democratic leader Harry M. Reid (Nev.) and conservative leader James C. Dobson, the White House calculated that Miers would draw broad support.

But yesterday's response to the nominee left that open to doubt. There was widespread dissent among Bush's usual allies on the right, who questioned whether the 60-year-old former corporate lawyer possessed the distinguished qualifications and conservative credentials they are looking for in a court nominee. "It could well be that she is in the tradition of Clarence Thomas or Antonin Scalia, as the president has promised," said Jan LaRue, chief counsel of Concerned Women for America. "The problem is that those of us who were looking for some tangible evidence of that have none, and we can't come out of the box supporting her."

Advocates on the left and their allies in the Senate also urged caution, pronouncing Miers's judicial philosophy and constitutional views a mystery. "We know next to nothing about the legal philosophy of the person President Bush has selected to replace Justice O'Connor casting the deciding votes on the most difficult issues confronting our nation," said Sen. John F. Kerry (D-Mass.). "America can't afford a replay of the unrevealing confirmation process that preceded Chief Justice Roberts's confirmation."

White House officials yesterday were emphasizing previous praise Miers had won from Democrats. As part of a bipartisan delegation of Senate leaders at the White House on Sept. 21, Reid told Bush that Miers "is worthy of consideration," according to aides of people at the meeting, and the senator spoke warmly of her yesterday -- though without making any specific commitment to support her. Some Senate Democrats privately expressed dismay that Reid had given the White House cover for a nominee they expect to oppose.

Bush described Miers, who if confirmed would be the third woman to sit on the Supreme Court, as a legal pioneer who repeatedly overcame gender barriers to reach the highest levels of her profession. Before being named White House counsel last year, she served as White House deputy chief of staff as well as staff secretary, a job in which she reviewed virtually every document that went before the president.

Before joining the Bush administration, Miers was Bush's personal attorney in Texas and served as general counsel of his gubernatorial campaign committee. As governor, Bush appointed Miers chairman of the scandal-plagued Texas Lottery Commission, where she earned a reputation as a tough manager after firing two executive directors.

Outside her political work for Bush, Miers was a partner at the Texas law firm of Locke Liddell & Sapp, served two years on the Dallas City Council and was the first woman to be head of the Texas Bar Association.

"One of the things that I believe the president admires about Harriet is that she has spent her entire career breaking through glass ceilings," said James B. Francis Jr., who heads a Dallas investment firm and introduced Miers to Bush in 1993.

While Miers is a churchgoer who once made a small contribution to an antiabortion organization, some conservative activists were openly questioning whether Bush had lived up to his promise to appoint a nominee of the same judicial and ideological stripe as justices Antonin Scalia and Clarence Thomas. The skeptics questioned her past donations to the Democratic National Committee, to former Texas senator Lloyd M. Bentsen (D) and the 1988 presidential campaign of Al Gore (D). They also bemoaned her lack of judicial experience.

"The reaction of many conservatives today will be that the president has made possibly the most unqualified choice since Abe Fortas, who had been the president's lawyer," said Manuel Miranda, chairman of the Third Branch Conference. "The nomination of a nominee with no judicial record is a significant failure for the advisers that the White House gathered around it. However, the president deserves the benefit of a doubt, the nominee deserves the benefit of hearings, and every nominee deserves an up-or-down vote."

Amid so much uncertainty among the president's own allies, Vice President Cheney was dispatched to interviews with such conservative commentators as Rush Limbaugh, who made plain his skepticism. "I'm confident that she has a conservative judicial philosophy that you'd be comfortable with, Rush," Cheney said. He added: "This president will have done more to change the court and, in fact, put on it individuals who share his judicial philosophy than any of his predecessors in modern times."

The White House could take reassurance that no Republican senators came out against Miers, and some conservative advocates said they were confident she would be a reliable supporter on the bench. They cited her support of an unsuccessful effort to reverse an American Bar Association endorsement of Roe v. Wade , the Supreme Court decision guaranteeing the right to abortion. "I don't know what her view is on overturning Roe , but she is well regarded by many antiabortion Texans," said Leonard A. Leo of the Federalist Society.

In a short statement after Bush announced her nomination and before she made her first round of courtesy calls on Senate leaders, Miers indicated that she has a modest view of the duty of justices. "It is the responsibility of every generation to be true to the Founders' vision of the proper role of the courts in our society," Miers said. "If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong, and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution."

If confirmed, Miers will become the first Supreme Court justice in more than three decades with no experience as a judge at any level. Among the non-judges appointed in modern history are the late William H. Rehnquist, who was a top Justice Department official in the Nixon administration, and Fortas, an influential Washington lawyer and close adviser to Lyndon B. Johnson, who nominated him to the high court in 1965. The talking points of White House aides said the closest analogy was Lewis F. Powell Jr., who served as head of the Virginia Bar Association and the Richmond school board before being sent to the court by Richard M. Nixon.

Bush chose Miers after seriously considering as many as 15 candidates for the post, at least six of whom were women, according to White House spokesman Scott McClellan. He said Bush met with Miers four times, starting Sept. 21, to discuss her possible nomination. Bush formally offered Miers the job Sunday night during dinner in the White House residence with first lady Laura Bush.

Miers, who as White House counsel was part of the team that vetted potential court nominees, was not publicly mentioned as a potential candidate until last week, and most speculation had centered on younger contenders, as well as the prospect that Bush would want to name the first Hispanic to the Supreme Court. But, in a signature of his management style, Bush turned to an adviser in whom he felt personal trust.

Through a spokesman, Majority Leader Bill Frist (D-Tenn.) said he would like to have Miers's confirmation hearings start in time for a vote before the Senate leaves for its Thanksgiving recess. Senate Democrats, however, were calling for a thorough examination of her views and for a release of her records as White House counsel -- a request sure to cause a confrontation with the White House.

"The record we have so far is simply insufficient to assess the qualifications of this nominee," said Sen. Edward M. Kennedy (D-Mass).

Staff writer David S. Broder contributed to this report.

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